NB: (The counter revolution) tried many forms and devices, but soon learned that it could come to power only with the help of the state machine and never against it… the Kapp Putsch of 1920 and the Hitler Pustch of 1923 had proved this.. In the centre of the counter revolution stood the judiciary. Unlike administrative acts, which rest on considerations of convenience and expediency, judicial decisions rest on law, that is on right and wrong, and they always enjoy the limelight of publicity. Law is perhaps the most pernicious of all weapons in political struggles, precisely because of the halo that surrounds the concepts of right and justice…
‘Right’, Hocking has said, ‘is psychologically a claim whose infringement is met with a resentment deeper than the injury would satisfy, a resentment that may amount to passion for which men will risk life and property as they would never do for an expediency’. When it becomes ‘political’, justice breeds hatred and despair among those it singles out for attack. Those whom it favours, on the other hand, develop a profound contempt for the very value of justice, they know that it can be purchased by the powerful. As a device for strengthening one political group at the expense of others, for eliminating enemies and assisting political allies, law then threatens the fundamental convictions upon which the tradition of our civilization rests…Franz Neumann, Behemoth, The Structure and Practice of National Socialism; (1942; 1963, p 27). DS
***************************
Mahatma Gandhi’s 1920 warning that Indian judges would stand by the Government is playing out in the context of Justice Sanjay Kaul’s charge that ex CJI Chandrachud was deferential to the Government
S. N. Sahu
THE REPORT in Indian Express on October 10, 2026, with a screaming headline that “As Chief Justice of India, Justice D Y Chandrachud was “too deferential to the Government” when it came to appointments” remind Mahatma Gandhi’s article, “The Hallucination of Law Courts” published in Young India on October 6, 1920. The report is based on the forthcoming book ‘Without Fear of Favour” of justice ((Retd) Sanjay Kaul of Supreme Court being published by Juggernaut later this month. It devastatingly brings out justice Kaul’s account that “at one time, Chandrachud as Chief Justice sought Government’s “nod” before the Collegium had met and, once, even voiced the Government’s “bizarre” query regarding the caste of a minority-faith judge candidate.”
In such expose that former CJI Chandrachud was deferential to the Government there is an echo Mahatma Gandhi’s statement in his aforementioned article, The Hallucination of Law Courts. With deep anguish he wrote in it, “The worst is that they(law courts) support the authority of a government.” “They” he remarked “are supposed to dispense justice and are therefore called the palladile of a nation’s liberty.” “But when they support the authority of an unrighteous Government they are no longer palladile of liberty, they are crushing houses to crush a nation’s spirit,” he sharply stated. Proceeding further he emphatically and presciently wrote, “Let no one suppose that these things would be changed when Indian judges and Indian prosecutors take the place of Englishmen.”
So, Gandhi’s utterances of 1920 that “The worst is that they (law courts) support the authority of a government” and “Let no one suppose that these things would be changed when Indian judges and Indian prosecutors take the place of Englishmen” are playing out in the expose of justice Kaul that former CJI was deferential to the Government.
Nehru on Independence of Judiciary
On 24th May 1949 Prime Minister Jawaharlal Nehru participated in the discussion in the Constituent Assembly on Article 103 of the draft Constitution (now Article 124 of the Constitution) dealing with the establishment and constitution of the Supreme Court comprising Chief Justice and other judges. While doing so he very boldly said, “It is important that these judges should be not only first-rate, but should be acknowledged to be first-rate in the country, and of the highest integrity, if necessary, people who can stand up against the executive government, and whoever may come in their way.”
Executive Court
Nehru’s words that the judges should have the courage to “…stand up against the executive government, and whoever may come in their way” deserve to be recalled and reiterated particularly when, of late, independence and integrity of people appointed as judges of Supreme Court and High Courts are being questioned with credible material. In his article “The Troubling Legacy of Chief Justice Ranjan Gogoi,” Gautam Bhatia charged that the Supreme Court was made to ally with the Government and very sharply remarked, “His tenure will be remembered for the rise of the ‘Executive Court’, one which has made the Supreme Court indistinguishable from the executive.” Justice Kaul’s remarks that CJI Chandrachud was deferential to the Government reinforces the remark made by Bhatia in his seminal article.
Independent Judiciary, Signifies Independence of India
Such worrisome developments clearly underline the demolition of independence of judiciary from the executive as mandated by the Constitution. Indira Jaising, former Additional Solicitor General of India and Senior Advocate in her interview to the DeKoder, two months back in August this year, candidly stated that “The capture of the Supreme Court by the ruling parties worried her the most.” Reflecting on crucial importance of independence of judiciary to safeguard of the country she very profoundly said, “If You Don’t Have an Independent Judiciary, You’re Not an Independent Country.” She told that when young lawyers approached her seeking advice how to discharge their duties in such an atmosphere she asked that to work in manner as if they owned the court.
Indira Jaising’s Metaphor of Sunflower Court
Deferential attitude of justice Chandrachud towards powers that be was best summed up by Indira Jaising when she said that the court he headed became a Suryamukhi (Sunflower) court, turning always toward the sun depending on its apparent change of position due to rotation of earth. It meant that like sunflower, always aligning itself with the position of the sun, CJI Chandrachud always remained tilted towards people at the helm of affairs.
What is troubling is that the loss of independence of judiciary because of the deferential attitude of Chief Justices and charge that the SC has become an executive court spells calamitous consequences for the freedom, liberty and independence of India.
Look at the remark of Justice Joymalya Bagchi of the supreme court who nonchalantly remarked that 2.7 million voters in West Bengal would vote in next elections because their appeals for getting enrolled in the voter list are being adjudicated by judicial tribunals. And when by elections were conducted recently to two Assembly constituencies and lawyers pleaded that those voters could not vote again in this election cycle as well he famously dismissed by saying “this is only by election.” One wonders how a judge could be so indifferent and insensitive to the constitutional right to vote guaranteed to all citizens from 18 years of age onwards.
SC on Test
Indian Express in its editorial “The knock on the Supreme Court’s door” published on October 6, 2026 referred to its expose of September 23 unmasking of malfunctioning of Election Commission headed by Chief Election Commissioner Gyanesh Kumar in implementing SIR leading to mass scale disenfranchisement of voters. It then observed “The citizen’s fundamental right to participate in the electoral process has to be protected at all costs. But even as the EC went back on its own record of inclusiveness, even as it shifted the burden of proof onto the vulnerable voter and set up a hurdle race at every stage of the SIR, the Court kept giving it the benefit of every doubt. Going ahead, therefore, not just the EC, the Court is also on test.”
The crisis of credibility plaguing the Supreme Court is getting accelerated. It would spell disastrous consequences for our Republic. Can the Chief Justice of India and other judges question the Government of the Day and hold it account for its acts of commission and omission egregiously violating the Constitution and rule of law? Only if the CJI and other judges can do so the independence of judiciary can be upheld. Failure to do so would constantly remind the forceful utterances of Indira Jaising that, “If You Don’t Have an Independent Judiciary, You’re Not an Independent Country.” It has now become a categorical imperative for the judges to restore the independence of judiciary to save the Constitution and safeguard the independence of India.
‘Wrong Precedent’: Lawyers’ Body Protests Supreme Court’s Handling Of Noida DM’s Plea
++++++++++++++++
Chris Hedges: The Machinery of Terror
Extra-legal status of the RSS/BJP. Abhay Dubey & Vinod Sharma discuss the Ram Mandir scandal
A Note of Caution for India’s Gen Z movement: The BJP/RSS scheme for a permanent take-over
Book Review: ‘Who Killed Justice Loya’ Delves Into The Many Unanswered Questions
Apoorva Mandhani: Judge Loya’s Confidants Died Mysterious Deaths
Domination and Chaos: India’s radical conservatism
Support South Africa’s case against Israel at the International Court of Justice
Rosario Livatino – the judge killed by mobsters who is on his way to sainthood
Sinn Fein should never be able to escape Jean McConville’s ghost (2010) / Say Nothing (2018)
Dusklands: Growing up in the shadow of genocide
The Oceanic Circle: Talk on the occasion of Mahatma Gandhi’s 155th birthday
