Today, Indian judiciary is facing vigorous scrutiny by the civil society and important stakeholders, barring the Godi Media, of course.
Let’s discuss the anatomy of a judicial system that sometimes forgets what justice is for. Let’s find out where it stands vis-a-vis judicial systems in two other major democracies.
1. Justice: Available in Principle, Delayed in Practice
Justice is blind. Unfortunately, in India, she is also frequently exhausted, overworked, under-resourced and trapped in a queue that began forming before some litigants were born.
A citizen approaches the courts seeking justice. The Constitution promises equality before the law. The lawyer promises a vigorous argument. The judge promises to hear both sides. And the system promises, without specifying a delivery date, to consider the matter.
Meanwhile, the citizen grows older, the witnesses grow forgetful, the evidence gathers dust, and the lawyers' bills continue to arrive with commendable punctuality.
Welcome to the world's largest democracy, where the judicial process can sometimes resemble a relay race in which every participant inherits the baton but nobody remembers where the finishing line is.
Justice Sanjay Kishan Kaul's Without Fear or Favour provides a particularly revealing entry point into this predicament. The memoir raises questions about judicial appointments, the executive's role in the Collegium process and the handling of sensitive cases. Its reported observations have also revived debate about the relationship between former Chief Justice D.Y. Chandrachud and his colleagues.
These are not trivial disagreements over administrative etiquette. They concern the institutional arrangements through which a democracy attempts to prevent political power from becoming judicial power's uninvited supervisor.
The experiences of India, Britain and the United States reveal three different approaches to this challenge. India struggles with opacity and executive friction. Britain has developed a more formalised appointments mechanism but faces serious delays in criminal courts. America protects federal judges through life tenure while making their selection an intensely partisan spectacle.
Each system has its virtues. Each has its failings. And each demonstrates that judicial independence, like constitutional democracy, is easier to proclaim than to maintain.
2. India: Of Collegiums, Governments and Constitutional Courtesies
India's judicial appointment system is an extraordinary constitutional arrangement.
The President formally appoints Supreme Court and High Court judges, but recommendations are controlled by the judicial Collegium, a mechanism developed through Supreme Court judgments rather than created by an express constitutional provision.
The arrangement emerged partly from a legitimate fear: if the government could freely appoint judges, it might appoint people whose greatest qualification was an agreeable disposition towards those in power.
The Collegium was supposed to prevent precisely that.
Yet an institution designed to protect judicial independence has developed its own problems. Its deliberations are largely private, its criteria can appear inconsistent, and the public is often left wondering how one candidate becomes a judge while another disappears into administrative oblivion.
The government, meanwhile, can delay recommendations, raise objections and return names for reconsideration. Under the established process, reiterated recommendations are expected to be honoured, but the interval between recommendation and appointment can itself become consequential.
Enter Justice Kaul's memoir.
The reported concerns about government views being sought before Collegium deliberations raise an uncomfortable question: if the executive's preferences enter the room before judges have independently formed their collective judgment, whose judgment is the Collegium actually exercising?
The government need not issue an order saying, 'Appoint this person and reject that one.' Influence can be subtler. A delay here, an objection there, a request for reconsideration somewhere else: the cumulative effect may matter more than any individual intervention.
Of course, an executive objection is not automatically interference. Governments may possess relevant information about candidates. National security and integrity concerns cannot simply be dismissed because they originate with the executive.
The constitutional question is whether such concerns are examined through transparent, principled procedures or become convenient instruments for rewarding the agreeable and inconveniencing the independent.
There is also the troubling issue of sensitive case assignments. Reports concerning the reassignment of a bench handling a politically consequential matter invite scrutiny, but they do not, by themselves, establish improper interference. Judicial administration must distinguish legitimate roster management from arrangements that could undermine confidence in impartial adjudication.
The point is simple: the public must have reason to trust the process.
A judiciary cannot demand unquestioning faith in its independence while treating reasonable questions about its internal workings as an assault upon judicial dignity.
That would be rather like a restaurant insisting that its kitchen must remain secret because diners might otherwise enquire about the ingredients.
The Collegium's defenders have a compelling argument: judicial appointments must not become a prize distributed by the ruling party. Its critics have an equally important point: independence from the executive cannot justify freedom from accountability.
India needs both.
3. Britain: Less Mystery, More Machinery
The United Kingdom offers a different model.
Following the Constitutional Reform Act 2005, judicial appointments became more institutionally separated from direct ministerial patronage. The Judicial Appointments Commission operates under a statutory framework, while Supreme Court appointments follow a separate selection process involving a specialised commission.
Merit, professional competence and fair selection have a more formal place in the process than in India's largely judge-controlled Collegium arrangements.
This does not make Britain immune to political controversy. Nor does it mean that appointments are mechanically objective. Merit itself requires judgment, and every selection system must confront questions about diversity, professional background and the assumptions embedded in its criteria.
Nevertheless, Britain offers an important lesson: judicial independence is strengthened when procedures are established in advance, responsibilities are clearly allocated and appointments do not depend principally on the private preferences of a small circle of judges.
There is something refreshing about an institutional arrangement that does not require the public to imagine what happened behind a closed door.
But Britain has a different problem. Its courts may be structurally independent and still struggle to deliver justice promptly.
The criminal courts in England and Wales have faced a substantial backlog, with official statistics recording 80,829 open Crown Court cases at the end of June 2026. The figures also show that many cases have remained outstanding for a year or longer.
For a defendant awaiting trial, institutional elegance offers limited consolation.
For a victim waiting to testify, a carefully designed appointments commission cannot substitute for an available courtroom.
For witnesses whose memories fade, justice delayed can become evidence compromised.
Britain's predicament illustrates an essential distinction: independence determines whether judges can decide freely; capacity determines whether they can decide in time.
A country may perform reasonably well on the first test and disappoint on the second.
The British system also demonstrates that governments need not interfere directly with judgments to weaken the administration of justice. Inadequate resources, insufficient judicial capacity and poor planning can produce serious consequences without a single minister telephoning a judge.
Sometimes institutional neglect achieves what direct interference would make politically embarrassing.
4. America: Judges for Life, Politics for Keeps
The United States offers another constitutional experiment.
Federal judges, including Supreme Court justices, enjoy substantial protection through life tenure during good behaviour and safeguards against salary reduction. Their appointments, however, are made through an openly political process: the President nominates, and the Senate provides advice and consent through confirmation.
There is no pretence that politics plays no role.
Presidents seek judges whose constitutional philosophies are compatible with their own. Senators scrutinise nominees, question their records and frequently turn confirmation hearings into ideological combat.
The Supreme Court appointment process can become a national political event, complete with partisan campaigns, strategic manoeuvres and predictions of constitutional catastrophe.
The American system thus presents a paradox.
Before appointment, judicial selection is conspicuously political. After appointment, federal judges possess substantial institutional insulation from the politicians who selected them.
An American president may celebrate appointing a Supreme Court justice, only to discover that the justice does not regard the presidential campaign manifesto as a binding judicial precedent.
This is an important safeguard. A judge is not supposed to function as a political contractor whose services remain available to the party that secured the appointment.
But life tenure is no guarantee of public confidence.
When appointments are intensely partisan, citizens may begin interpreting judgments through the political identity of the judges rather than the legal reasoning supporting their decisions.
The danger is not merely that judges may be ideological. Every judge brings intellectual assumptions and interpretative commitments to the bench. The danger is that the judiciary begins to look like an unelected legislature divided into political camps.
The American experience also raises questions about judicial ethics, particularly at the Supreme Court level. The introduction of a Supreme Court Code of Conduct in 2023 represented an effort to address public concerns, but questions about implementation and enforcement have continued.
A code is useful. A credible mechanism for applying it is better.
If an institution writes its own ethical rules but inspires doubts about how those rules will be enforced, its defenders cannot reasonably expect the public to regard the matter as settled.
America's lesson for India is therefore not to copy its appointment system wholesale. It is to recognise the value of strong post-appointment protection while acknowledging that political selection can damage legitimacy even when judges remain formally independent.
5. Professional Ethics: The Bench Is Not Above the Rules
Judges occupy a peculiar position in a democracy.
They exercise immense authority, often without facing voters. Their decisions can affect liberty, property, reputation and the survival of governments. Yet their authority depends not merely on constitutional provisions but on the public's belief that they exercise it honestly.
This makes judicial ethics indispensable.
India has articulated principles of judicial conduct, including the Restatement of Values of Judicial Life. The Bar has its own professional obligations. But the existence of ethical declarations is not the same as consistent enforcement or transparent accountability.
The judiciary must be protected against malicious attacks. Judges cannot be expected to decide controversial cases while conducting a popularity contest on social media.
Yet protection from harassment must not become immunity from legitimate scrutiny.
A judge who makes an error is not necessarily unethical. A judge who reaches a controversial conclusion is not necessarily politically compromised. A transfer or appointment delay is not, by itself, proof of a conspiracy.
But credible allegations of conflicts of interest, improper influence or departures from established procedures deserve examination through appropriate mechanisms.
The same principle applies in Britain and America.
Britain's more formalised arrangements and established conduct guidance provide useful institutional safeguards, but they do not eliminate human fallibility. America's ethical framework likewise faces the challenge of ensuring that rules are credible, consistently applied and capable of commanding public confidence.
The standard should be neither judicial infallibility nor judicial humiliation.
It should be accountability without intimidation.
The public must be able to question judicial conduct without being treated as an enemy of the judiciary. Equally, political actors must not weaponise accountability procedures simply because a judgment has inconvenienced them.
Judicial independence protects the judge from political retaliation. It does not confer a personal entitlement to public reverence.
A court is not a temple in which constitutional questions must be whispered. It is a public institution in which power must justify itself.
6. Dispensing Justice: Three Democracies, Three Waiting Rooms
The ultimate test of a judicial system is not the elegance of its constitutional architecture. It is whether ordinary people can obtain justice without surrendering their savings, their peace of mind or the better part of their lives.
India's backlog remains a formidable challenge across the Supreme Court, High Courts and subordinate judiciary. The National Judicial Data Grid makes pending cases more visible, but visibility is not resolution.
A digital dashboard can tell a citizen that a case has been pending for years. It cannot explain why the case has not been decided, compensate for the financial strain or restore lost opportunities.
India needs more judicial capacity, better case management, stronger court infrastructure, adequate support staff and a serious effort to reduce avoidable adjournments. Vacancies must be addressed, but recruitment alone cannot solve every procedural and administrative weakness.
Britain's criminal-court backlog demonstrates that even comparatively well-established institutions can become overwhelmed when resources and case-processing capacity fail to keep pace with demand.
America's federal courts have their own caseload pressures, although comparisons require caution: the federal judiciary handles only part of the country's judicial business, with state courts dealing with a vast range of ordinary civil and criminal disputes.
Comparing the three countries through one headline figure would therefore be misleading. Their jurisdictions, populations, court structures and reporting methods differ substantially.
Nevertheless, the underlying question is universal.
What does judicial independence mean to a poor citizen who cannot afford prolonged litigation?
What does constitutional supremacy mean to a prisoner awaiting trial?
What does equality before the law mean when the wealthy can sustain a legal battle for years while the less fortunate cannot?
And what is the practical value of a favourable judgment if enforcement takes another round of litigation?
There is a particularly cruel irony here. The richer litigant may be able to treat delay as a strategy. The poorer litigant experiences it as punishment.
In such circumstances, the law may remain formally equal while access to its remedies becomes profoundly unequal.
Justice delayed is not always justice denied, but a system that routinely makes delay unbearable risks turning a fundamental right into a luxury service.
7. The Final Verdict: Independence Must Deliver
Justice Kaul's Without Fear or Favour invites a conversation that India needs to have without descending into either hero worship or political mudslinging.
India's judicial independence must be defended against improper executive pressure. The Collegium must become more transparent, consistent and accountable without surrendering judicial appointments to the government of the day.
Britain demonstrates the value of a more formalised appointments system, while its court backlog warns that institutional independence cannot compensate for inadequate capacity.
America demonstrates the strength of secure judicial tenure, while its partisan confirmation battles warn that politicised appointments can weaken public confidence long after a judge takes office.
India should learn from both without pretending that either offers a perfect template.
The objective must be a judiciary that is independent before appointment, protected after appointment, accountable in its conduct and effective in dispensing justice.
Most importantly, judges must be able to decide cases without fear of government displeasure or favour towards political power. They must also be willing to explain institutional decisions, observe ethical standards and accept legitimate scrutiny.
For a democracy, the judiciary is neither the government's department nor its political opposition. It is a constitutional institution charged with ensuring that power operates within the law.
That responsibility becomes especially important when the executive is powerful, the opposition is weak, public debate is polarised and citizens increasingly look to the courts to settle disputes that political institutions cannot resolve.
But the courts cannot rescue democracy alone. Nor should they be expected to replace competent government, responsible legislatures or accountable administration.
The judiciary must do its own job, and the other branches must do theirs.
Ultimately, the title of Justice Kaul's memoir supplies a standard against which every democracy should measure its courts.
Without fear of the powerful.
Without favour to the politically connected.
Without arrogance towards the ordinary citizen.
And without forgetting that the authority of a judge comes with a duty to serve the law, not personal prestige or institutional convenience.
A democracy does not need judges who are fearless only when the consequences are comfortable. It needs judges who can uphold the law when the powerful would prefer otherwise.
And citizens do not merely need courts that are independent. They need courts that work.
Otherwise, justice will remain a magnificent constitutional promise delivered through an administrative system that seems determined to test the patience of the living and the endurance of the dead.
The law may be blind. The system has no excuse for keeping the citizen waiting indefinitely.
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