In a comment piece for The Tribune, former Supreme Court judge Justice Deepak Gupta argues that no country can call itself truly free without an independent and fearless judiciary, and warns that on liberty, dissent and the appointment of judges, India’s constitutional courts have fallen short in recent years.
New Delhi: Former Supreme Court judge Justice Deepak Gupta has argued that political independence from colonial rule is only part of what freedom means, and that a nation can be called truly free only when its citizens can think, speak and dissent without fear, and when its judiciary is independent and fearless enough to protect them. Writing in a comment piece published by The Tribune on September 7, 2026, titled “The true meaning of freedom,” the retired judge offered a pointed assessment of the state of liberty, the legal profession and the constitutional courts in India.
The views summarised below are those expressed by Justice Gupta in his The Tribune column; this report sets out his arguments and attributes them to him, and readers can access the full piece at the original source. LawChakra reproduces only brief phrases from the article and presents his opinion without endorsing it.
Freedom as more than the end of colonial rule
Reflecting in the aftermath of India’s 80th Independence Day, Justice Gupta writes that independence is “not only the country being independent, but also the citizens being free and independent.” A nation is genuinely free, he argues, when citizens can raise the voice of dissent openly, when hunger and poverty do not decide a child’s future in education, healthcare or basic rights, and when caste and religious bias no longer deny equal opportunity. He acknowledges India’s considerable progress, a growing economy, improved life expectancy and infrastructure, and leadership in the digital space, but questions what a “trillion-dollar economy” means when a large share of citizens remains below the poverty line and, on his account, the top 1% owns roughly 40% of the country’s wealth while the bottom half owns a fraction of it.
Drawing on nearly half a century in the legal profession, he then turns his focus to the legal fraternity, arguing that an independent judiciary is impossible without an independent Bar, lawyers who can “rise above their political affiliations” and stand up to power. He is sharply critical of the Bar Councils, writing that the body charged with disciplining errant lawyers and maintaining the standard of legal education “has failed miserably on both counts.”
‘Jail, not bail’ and the plight of undertrials
At the heart of the column is Justice Gupta’s concern for personal liberty under Article 21. He writes that while “bail, not jail, is the rule” is the oft-quoted principle, in practice “it is jail, not bail, which has become the rule.” He points to the statistic that around 75% of those behind bars are undertrials and only about a quarter are convicts, calling it shocking that in a system premised on the presumption of innocence there are three undertrials for every convict.
He cites specific cases to argue that “the process has become the punishment.” He notes that Umar Khalid has been in custody for more than six years without the trial beginning, and that the accused in the Elgar Parishad case spent years in jail, one dying in custody, without the trial commencing despite the seriousness of the allegations. Invoking Justice H.R. Khanna’s celebrated dissent in the ADM Jabalpur case, Justice Gupta laments that liberty is “violated with impunity” while courts, in many cases, become “mute spectators.” He is also critical of the handling of the Sonam Wangchuk detention, arguing that a habeas corpus petition must be decided at the earliest, and that the Court ought to have ruled on the legality of the detention rather than treating the matter as infructuous once the detention order was withdrawn.
Concerns about majoritarianism and specific rulings
Justice Gupta argues that while democracy is majority rule, “majoritarianism, where the voice of the other side is not heard, is anathema to democracy,” and expresses concern that courts at all levels are, in his view, moving in that direction. He is critical of the trajectory from the Ram Janmabhoomi judgment, which held that other places-of-worship disputes would not be reopened, to the subsequent order in the Gyanvapi matter permitting a survey, which he contends has “opened the floodgates of litigation.” He also points to what he sees as unequal treatment in bail, contrasting cases where members of different communities were treated differently for comparable acts.
On the right to protest, he writes that dissent expressed non-violently and in accordance with law is both a fundamental right and essential to democracy, and that “the government is not the country.” Protests, he notes, will inevitably cause some inconvenience, “no protest can be effective if it does not cause inconvenience”, and he questions whether judges who suggest ways to curtail protests will adequately protect a citizen’s right of dissent. These are the author’s characterisations of the cases and issues he discusses; the matters themselves are the subject of their own records and, in several instances, ongoing proceedings.
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The collegium and the composition of the Bench
Justice Gupta locates the “root of the problem” in the manner of appointing judges to the High Courts and the Supreme Court, arguing that the collegium system “has failed” and “become totally opaque,” taking important decisions without giving reasons, so much so that even Supreme Court judges outside the collegium are, he writes, unclear about the criteria being applied. He raises a concern about the social composition of recent appointments, observing that almost all recent elevations to the Supreme Court and several High Court Chief Justices belong to the upper castes, a majority of them Brahmins, and argues, without casting aspersions on any individual appointed, that the Supreme Court “must have representation from all sections of society” given the availability of capable candidates from other communities and religions.
He closes on the theme of public trust. Despite the cost and delay of litigation, he writes, the people have reposed great faith in the judiciary, though that trust is “waning,” and while the vast majority of judges are persons of integrity, “the number of black sheep is increasing.” It is for the judges at the highest level to introspect and take steps to “regain the lost glory,” he argues, warning that if people lose faith in the judiciary, it becomes irrelevant, and that “where there is no democracy, the people can never be free or independent.”
Why the intervention matters
The column is significant because of who has written it. Justice Deepak Gupta served as a judge of the Supreme Court and is known for his liberal, rights-focused jurisprudence, and a public critique of this breadth, spanning the collegium, undertrial detention, the handling of specific high-profile cases, and the social composition of the Bench, from a former member of the institution carries a weight that commentary from outside the system does not. Coming amid a wider public debate over judicial independence, listing practices and the pace of liberty-related cases, it adds a senior insider’s voice to concerns that have been raised in several quarters.
It should be read for what it is: an opinion piece, an argument advanced by a retired judge in a newspaper column, not a judicial finding or a statement of settled law. Several of the cases he discusses remain sub judice or are matters of continuing debate, and his characterisations of them are his own. LawChakra presents his views as a contribution to the public conversation on the judiciary and the meaning of freedom, attributed throughout to Justice Gupta and to The Tribune, and does not adopt or endorse his conclusions. Readers are encouraged to read the full column at its original source.
Source: “The true meaning of freedom,” a comment piece by Justice Deepak Gupta (former Judge, Supreme Court of India), published in The Tribune on September 7, 2026.