Is India's judicial independence at risk?

The United Nations' Basic Principles on the Independence of the Judiciary, adopted in 1985, clearly outlines that judicial independence must be guaranteed by the State, enshrined in the Constitution or law and respected by all governmental and other institutions. This foundational principle of the judiciary is currently under intense scrutiny in India.

What has fueled this concern? The Enforcement Directorate (ED) recently issued summons to two Senior Advocates - Arvind Datar and Pratap Venugopal. While these summons were eventually withdrawn, and the ED subsequently issued a circular stating that no summons are to be issued to lawyers without prior permission of the Director, the incident raised serious concerns.

Beyond the actions of investigative agencies, comments from members of the legislature have also fueled the debate. On April 19, 2025, BJP MP Nishikant Dubey made contentious remarks against the Supreme Court of India, alleging it was “responsible for inciting religious wars in the country” and “going beyond its limits.”

These are not isolated incidents. Vice-President of India Jagdeep Dhankhar has offered a more consistent and sustained critique, reigniting a long-standing debate about the judiciary's role and its relationship with the legislature. His statements have led to allegations of partisanship against the judiciary. Particularly, his observations about Article 142 of the Constitution of India and the basic structure doctrine have been perceived as a direct challenge to judicial independence.

An initial look at the VP's statements from January 2025 to May 2025 reveals a consistent theme: he believes that the Supreme Court and the judiciary are overstepping their constitutional boundaries and encroaching upon the legislature's domain.

Below are some of the comments he has made in the recent past.

1. January 2025: While interacting with participants from the Indian Institute of Democratic Leadership (IIDL), Vice-President Dhankhar asserted that “access to the judiciary has been weaponised...it is posing a great challenge to our governance, our democratic values.”

2. February 2025: Speaking at the National Law Academy in Bhopal, he questioned the involvement of the Chief Justice of India in executive appointments, stating, “How can in a country like ours or in any democracy, by statutory prescription, Chief Justice of India participate in the selection of the CBI director? How can we involve Chief Justice of India with any executive appointment…Executive governance by judicial decree is a Constitutional paradox, that the largest democracy on the planet cannot afford any longer.”

3. March 2025: Responding to Congress MP Jairam Ramesh's concerns about cash found at the house of then Delhi High Court Justice Yashwant Verma, the VP in the Rajya Sabha indirectly referenced the National Judicial Appointments Commission (NJAC) case, which was overturned by the Supreme Court in 2015. He stated, “That historic legislation endorsed by this Parliament with unprecedented consensual support unknown to the parliamentary history of this country dealt with the malaise very severely. If the malaise had been dealt with perhaps we would not have countenanced such kind of issues. What bothers me is that the incident happened and did not immediately surface.”

4. April 2025: At a valedictory ceremony for Rajya Sabha interns, the VP commented on the Supreme Court's judgment laying down timelines for Governors to decide on bills. “Where are we heading? What is happening in the country?” He further criticised the judiciary, stating, “So we have judges who will legislate, who will perform executive functions, who will act as super Parliament, and absolutely have no accountability because law of the land does not apply to them.” He controversially referred to Article 142 as a “nuclear missile against democratic forces, available to the judiciary 24x7.”

That same month, while addressing a gathering at Delhi University, he declared, “There is no visualisation in the Constitution of any authority above Parliament. Parliament is supreme." In a later response, without directly referencing the Vice-President's remarks, Chief Justice of India Gavai stated in May 2025 while speaking at his felicitation in Mumbai that “the Constitution of India is the only supreme and all the three pillars of the country – Judiciary, Parliament and also the Executive, have to work together for the Constitution.” While not a direct rebuttal, the CJI's statement does reaffirm the supremacy of the Constitution itself over any single branch of government.

5. May 2025: In early May, the VP, without naming any institution, said, “The most dangerous challenges are the ones that come from within...which we cannot openly discuss…It is our binding duty that all constitutional institutions respect each other, and such respect is only possible when institutions function within their respective domains. When there is confrontation, democracy does not flourish.”

These repeated sharp pronouncements by the Vice-President, particularly his characterisation of judicial actions as “weaponisation,” a “super Parliament,” and a “nuclear missile,” coupled with his questioning of the basic structure doctrine and the judiciary's role in executive appointments, collectively paint a concerning picture of antagonism towards the judiciary. These statements are widely perceived as an attempt to erode public trust in the judiciary.

These remarks suggest a perceived tension currently between the executive and legislative branches and the judiciary, raising questions about the foundational principle of the separation of powers. As Montesquieu famously articulated in 1748:

“When the legislative and executive powers are united in the same person, or in the same body of magistrates, there can be no liberty...there is no liberty if the powers of judging is not separated from the legislative and executive...there would be an end to everything, if the same man or the same body...were to exercise those three powers.”

The doctrine of separation of powers underlines that an independent judiciary is not just a desirable feature, but a requisite for the preservation of the Constitution and the fundamental rights of citizens, thereby ensuring the rule of law and the functioning of democracy.

So, what must the legal fraternity do? It must introspect on some uncomfortable questions:

a) When the rule of law is challenged, what is our role?

b) When the administration of justice is at risk, what actions should we take?

c) Is merely discussing the threat to judicial independence enough?

d) Who bears the highest responsibility to the people of India to ensure uninterrupted governance through the Constitution?

The primary duty to uphold the rule of law and maintain judicial independence rests with lawyers and judges. Lord Denning, in The Road to Justice, argued that judges and advocates make a grave mistake if they are concerned only with the interpretation and enforcement of the law, disregarding its morality or justice. He contended that considering law and justice as distinct, or viewing law as an end in itself, leads to injustice. If injustice occurs due to a threat to judicial independence, lawyers cannot escape their responsibility if they fail to act. Lawyers must remember that judges serve as a crucial shield between the individual and the State, protecting individual freedoms from unjustified interference. It is the lawyers and judges who must stand up when the independence of the judiciary is under threat, as this simultaneously jeopardises the rule of law against power.

Judges in India can draw inspiration from historical figures like Sir Edward Coke, Chief Justice of the Common Pleas, who repeatedly clashed with King James I in the early 17th century.

(i) In the Case of Prohibitions, Sir Coke firmly countered the King's claim to personally judge cases, stating that judgments must be rendered by judges trained in "artificial reason and judgment of law"; not by the King's "natural reason". This established the principle that judicial power resided exclusively with the courts, not the monarch.

(ii) The Case of Commendams marks a climax in the escalating conflict between Sir Edward Coke and the Crown, eventually leading to Coke’s dismissal in 1616. In this case, the King ordered the judges of the King's Bench to delay judgment in a case involving a royal grant (a “commendam”) until they had consulted with him. Coke refused to obey, arguing that “Obedience to His Majesty's command to stay proceedings would have been a delay of justice, contrary to law, and contrary to the oaths of the judges.” The case reinforced the principle that judges must act impartially and free from executive interference, to uphold the rule of law.

Judges, in every circumstance, must stand for the rule of law. When judicial independence is threatened, they must voice their concerns through their writings and words. The temptation of post-retirement positions should not sway them from their constitutional duty. As Martin Luther King Jr powerfully stated,

“The hottest place in Hell is reserved for those who remain neutral in times of great moral conflict…[an individual] who accepts evil without protesting against it is really cooperating with it.”

Justice Anthony Kennedy (former Associate Justice of the Supreme Court of the United States) echoed this, asserting that “judicial independence is not conferred so judges can do as they please,” but so “judges can do as they must.” The judiciary must remain beyond reproach, serving as the ultimate refuge for citizens when democratic institutions face challenges.

The recent controversy surrounding Justice Yashwant Verma of the Allahabad High Court, in whose house burnt cash was reportedly found, has understandably eroded public trust. History offers a lesson here: Sir Francis Bacon, a 17th-century Lord Chancellor, was charged in 22 cases for receiving bribes and gifts worth £11,000, an enormous sum for the time. Bacon, like Justice Verma in his probe report, could not provide a satisfactory response and later confessed to his guilt. The House of Lords condemned Bacon to an astronomical fine of £40,000 (around £3 to £4 million today), imprisoned him, and declared him incapable of holding office.

As Justice Verma has defied the call for resignation, former Chief Justice of India Sanjiv Khanna recommended removal through impeachment. This would go down in the history of the Indian Judiciary, much like the story of Sir Francis Bacon of England. But as lawyers and judges, we must also ensure that the impeachment process adheres to the law, preserving the essence of the rule of law, even when a person is found guilty of the accusations.

For those who might not consider or believe that the independence of the judiciary is under threat, I'd like to refer to a quote by Benjamin Franklin:

“It is the first responsibility of every citizen to question authority.”

When sharp, repeated comments against the judiciary are made by someone of the Vice-President of India's stature, who indirectly represents the Central government's interests, it's valid to presume, or at least be cautious and prepared for, potential challenges to judicial independence.

We should also be wary when the government brings the NJAC back into the conversation. Conversely, the Supreme Court of India's Collegium system has its flaws, which must be rectified soon. If not, it will reasonably attract public criticism and could jeopardise the independence of the judiciary.

Yash Jangid is practising as an advocate before the Supreme Court of India and the High Court of Rajasthan.