A recent report by the International Commission of Jurists (ICJ) has raised serious concerns about the state of judicial independence in India, referring to increasing executive interference, lack of transparency in appointments, and weak accountability mechanisms. The report titled ‘Judicial Independence in India: Tipping the Scale’ provides a detailed analysis of the constitutional basis, legal framework, and jurisprudence governing judicial independence.
The report says that over the past decade (2014–2024), the Indian judiciary has experienced “retrogressive developments in respect of judicial independence,” and that though India’s judiciary remains constitutionally independent, its autonomy is increasingly being undermined by “significant scope for external, including executive influence.”
The ICJ’s findings paint a grim picture of the judiciary’s growing vulnerability under the BJP-led central government since 2014. The report details how executive influence has seeped into judicial appointments, case allocations, and even post-retirement benefits for judges. It highlights key structural weaknesses that have allowed for these encroachments, including a lack of transparency in appointments, politically motivated transfers, and a compromised accountability framework.
The handling of Umar Khalid’s bail plea is a stark example of concerns about judicial independence, particularly in the allocation of cases. Arrested under the Unlawful Activities (Prevention) Act (UAPA) in connection with the 2020 Delhi riots, Khalid has remained in jail without bail, with his case facing multiple adjournments and eventual withdrawal, raising serious questions about case assignments and judicial impartiality.
Initially, Khalid’s bail plea was listed before a bench comprising Justices Aniruddha Bose and Bela M. Trivedi. Following several recusals from Judges, the case was assigned solely to Justice Trivedi. This reassignment raised eyebrows due to Justice Trivedi’s previous tenure as the law secretary in the Gujarat government under then-Chief Minister Narendra Modi.
Throughout late 2023 and early 2024, Umar’s case saw numerous adjournments, many due to the unavailability of senior advocate Kapil Sibal, Khalid’s counsel. These delays were partly attributed to concerns about the bench’s composition and the desire for the case to be heard by a different panel of judges. For instance, on November 29, 2023, Prashant Bhushan, representing other petitioners, requested that the case be de-tagged and heard by Chief Justice D.Y. Chandrachud instead of Justice Trivedi. Justice Trivedi, however, maintained that the petitions would be heard by her and Justice S.C. Sharma.
The sequence of adjournments in his case continued into early 2024. On January 10, 2024, the hearing was postponed due to Sibal’s prior commitments. Subsequent dates saw further delays, often because of changes in bench composition or scheduling conflicts. Eventually, on February 14, 2024, Khalid withdrew his bail petition from the Supreme Court, opting to approach the trial court instead.
Beyond individual cases, the larger crisis in judicial administration stems from the ‘Master of the Roster’ system, which gives the Chief Justice unchecked power to allocate cases to specific benches. Originally meant to ensure administrative efficiency, the system has increasingly been used in ways that raise concerns about neutrality and fairness. Politically sensitive cases—those concerning corruption allegations against ruling party leaders, electoral disputes, or major constitutional challenges—are often assigned to benches seen as favorable to the government.
The 2018 press conference by four Supreme Court judges—Justices J. Chelameswar, Ranjan Gogoi, Madan Lokur, and Kurian Joseph—was a direct indictment of this practice. They warned that “democracy is in danger” due to the selective assignment of cases, suggesting that certain cases were deliberately sent to particular benches to secure predetermined outcomes. Their public statement revealed deep internal concerns about the independence of the judiciary.
Another example is the Judge Loya case, which involved the suspicious death of a judge presiding over a case related to Amit Shah in which he was an accused. The way the case was assigned and subsequently ruled upon led to widespread allegations of judicial bias.
The ‘Master of the Roster’ system remains at the heart of these concerns. While intended to facilitate judicial administration, its opaque functioning has allowed for the selective allocation of cases in ways that “undermine public confidence in the judiciary.” The way politically significant cases are assigned, adjourned, or delayed reinforces growing apprehensions about whether judicial independence is being compromised in favor of executive interests.
Judicial Appointments: A System at the Executive’s Mercy
One of the most alarming findings of the report is the erosion of judicial primacy in the appointment of judges. Since the 1993 Second Judges Case, India has followed the Collegium system, wherein senior judges of the Supreme Court recommend names for appointment to the higher judiciary. However, the executive has increasingly exercised a veto over these recommendations.
The ICJ report notes that while the government does not have formal powers to reject Collegium recommendations, it often delays approvals or returns names for reconsideration, effectively exerting undue influence over judicial appointments. The 2015 Supreme Court judgment striking down the National Judicial Appointments Commission (NJAC)—a mechanism introduced by the Modi government to replace the Collegium—further reveals the Government’s intent in exerting control over judicial independence. The report argues that since then, the executive has continued to exert indirect control, including through selective approval of judicial appointments.
A glaring example is how judicial recommendations perceived as favorable to the government glide through the process with remarkable speed, while those associated with decisions critical of the ruling party languish in bureaucratic limbo. This selective approval mechanism has created a climate of quiet coercion, sending a message that judges who wish to secure promotions or appointments must not cross the political establishment, which ultimately holds judiciary a hostage to the political patronage, as per critics.
Moreover, the government’s power to withhold judicial recommendations has led to situations where judges perceived as critical of the ruling establishment have faced delays or even outright rejection. For instance, the Collegium’s recommendations for judges seen as independent-minded have reportedly been stalled for months, even as those considered favorable to the government have been fast-tracked.
The brazenness of this proximity between the judiciary and the executive was on full display in September 2024 when Chief Justice of India D.Y. Chandrachud hosted a Ganpati Puja attended by Prime Minister Narendra Modi. The images of the Supreme Court’s Chief Justice in an openly celebratory moment with the head of the executive branch raised serious questions. It was not merely a ceremonial event; it was a spectacle that undermined the delicate balance between judicial impartiality and political proximity. For a judiciary already under scrutiny for perceived softness towards the ruling establishment, such optics further erode public faith. Senior lawyers Indira Jaising and Prashant Bhushan were among those who criticized the move, reminding the judiciary that its independence is defined not just by legal rulings but also by the perception of impartiality.
Politicized Transfers: A Silent Purge
Judicial independence is not only about how judges are appointed but also about whether they can exercise their duties without fear of repercussions. The report details how politically motivated transfers of judges have become a preferred tool of executive control, used to punish those who refuse to toe the government line.
The most notorious case remains that of Justice S. Muralidhar, who was transferred overnight from the Delhi High Court to the Punjab and Haryana High Court in 2020, barely hours after he lambasted the Delhi Police’s “handling of Pogrom insinuated after Kapil Mishra’s speech and motivated the violence against Muslims”.
The ICJ report underscores how the government justifies these moves under the pretext of “better administration of justice.” But who defines what constitutes better administration? In a system where transparency is absent, where the criteria for transfers remain murky, and where the executive enjoys unchecked discretion, such justifications ring hollow. The arbitrary nature of these decisions corrodes institutional trust and fosters a chilling effect among judges, making them wary of issuing rulings that might put them in the crosshairs of political power.
Judicial Accountability: A Sham Mechanism Designed to Fail
If appointments and transfers reveal how the executive exerts control, the feeble state of judicial accountability mechanisms ensures that judges who fall in line are protected, while those who dissent are left vulnerable. The report highlights how impeachment—the only formal mechanism for removing a judge—is practically impossible in India, given the high parliamentary thresholds required. No judge in India has ever been successfully impeached, even in cases of clear misconduct.
In the absence of a robust external oversight mechanism, the judiciary’s own in-house disciplinary system has been a failure. The Chief Justice enjoys sweeping discretionary powers over disciplinary proceedings, ensuring that real accountability remains elusive. This has allowed judges with overt political or ideological leanings to continue delivering contentious rulings with impunity.
Take, for example, former Chief Justice Ranjan Gogoi, who presided over the Babri Masjid-Ram Janmabhoomi case in 2019. His ruling, which paved the way for the construction of a Ram temple at the disputed site, was hailed by the ruling BJP as a “historic verdict.” Gogoi was later rewarded with a Rajya Sabha seat. This was not an isolated incident but part of a growing pattern where retiring judges receive political appointments, casting a long shadow over their tenure in office.
Then there is the case of Additional District Judge of UP, Ravi Kumar Diwakar, who, in October 2024, openly indulged in Islamophobic rhetoric in a judicial verdict, declaring that Muslim men were engaged in a “demographic war” through “love jihad.” His remarks, laden with communal prejudice, should have warranted immediate action. Instead, they were met with silence from the judiciary and the government. The absence of any disciplinary measures only emboldens such behavior, normalizing judicial bias and eroding faith in the courts as neutral arbiters of justice.
Another example is Allahabad High Court’s Justice Shekhar Kumar Yadav, who, at a VHP event in December 2024, claimed Muslim children are exposed to violence from a young age, unlike Hindu children, and stated India should follow the majority’s wishes. Facing criticism, he defended himself, insisting he spoke as a “son of India” and saw no communal bias in his words. Yet, no action was taken, further revealing the Judiciary’s rising affinity with the ruling party and its contending idea of Hindutva.
Restoring Judicial Independence
The ICJ report called for reforms to safeguard India’s judiciary: Strengthening the Collegium system is imperative; the process of judicial appointments must be transparent, with fixed criteria that are made public. Judicial transfers must not be arbitrary; clear guidelines should govern the process, ensuring that it is not weaponized as a tool of executive control.
The report calls for a comprehensive overhaul of judicial accountability. It recommends establishing a statutory Judicial Complaints Authority to investigate misconduct allegations, ensuring judges do not act with impunity. To curb post-retirement political appointments, it proposes a mandatory cooling-off period, preventing a revolving door between the judiciary and the government. Additionally, it stresses the need for a transparent, rule-based system for case allocation, replacing the discretionary power of the Chief Justice to eliminate selective assignment of politically sensitive matters.
While the Indian judiciary is constitutionally insulated from the executive and the legislature, significant scope for external, including executive influence remains. The Indian judiciary has itself failed to provide for appropriate self-governance mechanisms and arrangements that ensure optimal accountability for the fair and independent administration of justice, the report highlights.
A crucial weakness that consistently emerges is the lack of predetermined and objective criteria and deficit of transparency, whether in matters of selection and appointment, transfer of judges, or judicial accountability, coupled with excessive discretion exercised by the Chief Justice of the Supreme Court as well as the veto power that the executive exercises in some aspects.
The report underscores that without urgent structural changes, India’s judiciary risks becoming an institution that merely serves to validate executive decisions rather than acting as the independent arbiter of justice, which it is tasked to fulfill.
(Syed Affan is a writer and Journalist based in Delhi. His reportage focuses on land conflicts, human rights, and policy.)
