By Inderjit Badhwar
In constitutional democracies, the judiciary is often described as the “last guardian” of liberty. But what happens when members of that very institution publicly question the systems and laws that shape it?
Two recent interventions from the Supreme Court—by Justice Dipankar Datta and Justice Ujjal Bhuyan—remind us that the health of a democracy often depends on the courage of individuals within its institutions.
Justice Datta’s remarks on the Collegium system were striking for their candour. Rarely does a sitting Supreme Court judge openly challenge the institutional culture surrounding judicial appointments and career advancement. Yet, his message was simple and powerful: the judiciary must protect judges who act with integrity, even when their decisions displease powerful actors.
The concern he raised is not hypothetical. Over the past decade, several episodes have sparked debate over whether upright judges have been adequately protected when they confronted executive authority.
The transfers of Justice S Muralidhar and the stalled elevation of Justice Akil Kureshi are frequently cited in legal circles as examples of this tension. In both cases, many members of the bar and civil society felt that institutional solidarity within the judiciary could have been stronger.
Justice Datta’s remarks therefore go beyond the question of individual careers. They speak to the very architecture of judicial independence.
India’s Collegium system emerged from a turbulent constitutional history. The supersession of Justice Hans Raj Khanna during the Emergency era remains a stark reminder of how executive power can shape the judiciary. The subsequent Three Judges Cases sought to ensure that judicial appointments would remain largely within the control of the judiciary itself.
Yet, the Collegium has never been free from criticism. Its secrecy has often raised concerns about transparency and accountability. Even supporters of judicial primacy acknowledge that reforms are necessary to strengthen public confidence.
Justice Datta’s emphasis on merit—defined not merely by legal ability but also by integrity and temperament—is therefore particularly significant. It suggests that institutional reform must focus not only on procedures, but also on values.
At the same time, Justice Ujjal Bhuyan’s observations on the Unlawful Activities (Prevention) Act highlight another fundamental challenge facing the judiciary: the balance between national security and civil liberties.
Anti-terror laws are among the most powerful instruments available to the State. Yet history across democracies shows that such laws can sometimes be used in ways that strain constitutional protections.
Justice Bhuyan’s warning that civil liberties must not become casualties of stringent legislation reflects a long tradition within Indian constitutional jurisprudence. Courts have repeatedly emphasised that the fight against terrorism cannot come at the cost of the rule of law.
What makes his observation especially noteworthy is that it was echoed by the chief justice’s bench. This suggests an emerging judicial sensitivity to concerns about prolonged incarceration, stringent bail provisions and the broader implications of anti-terror statutes.
Taken together, these two interventions reflect a deeper conversation unfolding within India’s highest court.
On one hand lies the internal question of institutional integrity—how judges are selected, protected and supported. On the other lies the external question of constitutional balance—how laws that claim to protect the nation can also threaten individual liberty if not carefully scrutinised.
Both issues ultimately converge on the same principle: judicial courage.
Courts derive their authority not from the sword or the purse, but from public trust. That trust grows when judges demonstrate independence, transparency and a willingness to confront difficult questions.
By addressing controversial subjects—from judicial appointments to anti-terror laws—Justices Dipankar Datta and Ujjal Bhuyan have performed a valuable public service. Their remarks remind us that constitutional institutions are strongest when they are capable of self-reflection.
Democracy does not demand perfect institutions. It demands institutions that are willing to question themselves.
And when judges speak truth to power—even when that power lies within their own system—they reinforce the very foundations of constitutional governance.