Razia Masood

The marching has stopped, the drum rolls have died down, and the euphoria of India's 80th Independence Day celebrations has settled into memory. What remains is a question worth sitting with: how free are we, the citizens of India, really? Former Supreme Court judge Justice Deepak Gupta has answered that question with an article that has since travelled far beyond legal circles. His central claim is uncomfortable but simple: no country can call itself free unless it has an independent and fearless judiciary. And by his own reading of the record, that independence is eroding, not because the institution has collapsed, but because the "black sheep" within it are multiplying, and the rest of the flock has chosen silence. Justice Gupta's most striking illustration is drawn from a single river. When members of one community were found consuming chicken in a boat on the Ganga, they were denied bail for months. When members of the majority community were found consuming liquor on the same river, considered equally sacred, they walked free on bail within hours. The comparison is not subtle, and it is not meant to be. It suggests that courts are not merely occasional victims of bias slipping through the cracks of an otherwise sound system. They are, in Justice Gupta's words, fully aware of what is happening on the ground. The disparity is visible, documented, and repeated often enough that it stops looking like coincidence. What it demands, he argues, is for courts to do their job and say what needs to be said, without mincing words. Equal protection a privilege extended selectively? That is the heart of the matter. Equal protection under the law was meant to be a guarantee. Increasingly, it reads like a privilege extended selectively, depending on who is standing before the bench. The temptation, when reading an article like this, is to focus on the "black sheep", the individual judges or magistrates who bend the law. But that framing misses the point Justice Gupta is actually making. It was never really about a handful of compromised individuals. It is about the system that allows them to operate without consequence, year after year, case after case. This is where the conversation around judicial appointments becomes unavoidable. The composition of judges in the constitutional courts should reflect the country they serve, with fair representation across castes and communities. Instead, critics point to a collegium system that remains opaque, to an upper-caste dominance that has only grown more entrenched, and to an appointment process where accountability is almost impossible to trace. When judges are drawn from an increasingly narrow social base and selected through a process nobody outside the system can fully see, it becomes harder to trust that the bench reflects the country's diversity rather than its old hierarchies. A pattern emerges once you start looking for it. Corrupt politicians secure bail quickly. Ordinary citizens wait years for their cases to even be heard. Some matters receive urgent hearings the moment they are filed. Others are met, again and again, with nothing more than the next date. Communal dimension hard to ignore This is not only a Muslim issue or a Hindu issue, though the communal dimension is impossible to ignore given how often it surfaces in the same conversations. Wrongful arrests, especially of Muslims, are rarely followed by accountability for the police officers responsible. That silence travels all the way up. The buck, as one observer put it bluntly, ends at the desk of the Chief Justice of India, who watches the pattern unfold and does not act on it. The frustration is not really about a single case going wrong. It is about how consistently the same kinds of cases go wrong and how rarely that consistency is treated as a problem worth solving. Not everyone reading Justice Gupta's article is willing to take it entirely at face value, and that scepticism deserves space too. There is a fair observation buried in the criticism: people in power often stay silent because governing is difficult and because the system, flawed as it is, still benefits them while they hold office. It is only after they lose that influence that the same people find their voice and start speaking publicly, sometimes hoping that public sympathy will follow them into their next chapter. It is a reasonable question to ask of any retired official who suddenly discovers moral clarity. Why did the concerns raised in books and press conferences after retirement not find their way into judgments handed down while still in service? If independence and fearlessness were truly present the whole time, where were they when it mattered most, in the courtroom rather than on the page? Impartiality has to be visible while person still holds power This is not an argument to dismiss what Justice Gupta has said. If anything, it sharpens the point. Independence and fearlessness are not enough on their own. A judge, or an election commissioner, needs to be impartial as well, and that impartiality has to be visible while the person still holds power, not just in retrospect. Once a judge retires, the weight of their words tends to drop close to zero. Statements that are purely advisory carry little real impact, because a country like ours pays far closer attention to those currently in power than to those reflecting on it from the outside. Perhaps the most important line in this entire debate is also the simplest: the outrage should be about the entire system, not selective outrage chasing a headline, and certainly not a stepping stone toward a Lok Sabha ticket. It is easy to be moved by one dramatic example, one boat on one river. It is much harder, and much more necessary, to stay focused on the machinery that keeps producing these examples in the first place. No country can claim to be free unless its judiciary is independent and fearless. The same is true of its election commission, which owes its loyalty to the Constitution it has sworn to serve, not to whichever legislature happens to be in power at the time. Justice Gupta's article is a reminder, uncomfortable as it may be, that these are not abstract principles to be quoted in speeches and forgotten by evening. They are commitments that either hold under pressure or quietly give way. Right now, by his own account, they are giving way, one silence at a time.

Razia Masood

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