Swaminathan Gurumurthy: Judicial Independence in India Needs Historical Review

• Swaminathan Gurumurthy advocated for a historical review of the judiciary-executive relationship in India at the Ram Jethmalani Memorial Lecture 2026.
• He argued that institutional transparency and public trust cannot be understood without examining the evolution of tensions since 1969.
• Gurumurthy identified a "deeper rot" contributed to by the judiciary, Bar, media, and public, necessitating a "helicopter view."
• He discussed the impact of the Emergency and the Kesavananda Bharati judgment on constitutional jurisprudence and institutional dynamics.
• Gurumurthy criticized the perception that a judge is only considered independent if they are seen as "anti-government."

He contended that the notion of a judge being considered independent only if they are perceived as "anti-government" is a flawed and detrimental benchmark.

At the Ram Jethmalani Memorial Lecture in 2026, Swaminathan Gurumurthy presented a compelling argument for a comprehensive historical examination of the relationship between India's judiciary and its executive branch. He contended that a genuine understanding of institutional transparency and public trust within the legal system is impossible without first appreciating the historical evolution of tensions between these critical pillars of governance.

Gurumurthy emphasized that the current state of affairs does not represent a fresh start, suggesting that the underlying issues are deeply entrenched. His address highlighted the necessity of a deeper dive into the past to comprehend the present challenges facing judicial independence in India.

Gurumurthy articulated that addressing the challenges of transparency and public confidence necessitates a broad, overarching perspective, acknowledging that the legal framework is not operating from a pristine foundation. He asserted that a "deeper rot" pervades the system, and unless this fundamental issue is recognized, effective solutions will remain elusive. According to Gurumurthy, this deterioration is not attributable to a single entity but has been collectively contributed to by the judiciary itself, the legal Bar, the media, and the general public.

He further segmented the complexities into two levels: the macro issue of judicial independence and the micro concerns of bias, compromise, and corruption. Acknowledging the need for a historical lens, he pinpointed 1969 as a pivotal year marking a significant shift in the nation's political landscape, stating that before this period, politics and ethics were intertwined, a connection that subsequently dissolved.

Recalling his personal experiences during the Emergency period, Gurumurthy highlighted the immense pressure exerted on both the media and the judiciary. He observed that the media's resistance to the executive during this era led to the perception that an "anti-establishment" stance was synonymous with an independent press. Similarly, he noted that the judiciary faced comparable attacks from the executive, triggering a series of institutional clashes.

Gurumurthy delved into the progression of constitutional jurisprudence, citing cases related to bank nationalization, various constitutional amendments, and the landmark Kesavananda Bharati judgment. He characterized the Kesavananda Bharati ruling as a "bombshell" that profoundly reshaped the dynamic between Parliament, the executive, and the judiciary, leading to the judiciary's expanded influence over constitutional matters. While acknowledging that he does not entirely endorse the judgment, Gurumurthy stated that the judiciary effectively assumed a role in "constitution making" in India.

He also referenced the controversial supersession of judges following the Kesavananda Bharati decision and the judiciary's actions during the Emergency, recounting how he and Ramnath Goenka once drafted a petition by candlelight after power was cut at the Indian Express. Gurumurthy further argued that the basic structure doctrine, despite its significance, did not prevent the imposition of the Emergency or the Supreme Court's controversial ADM Jabalpur judgment.

Central to Gurumurthy's address was his critique of the prevailing standard for assessing judicial independence in India. He contended that the notion of a judge being considered independent only if they are perceived as "anti-government" is a flawed and detrimental benchmark. This perspective, he argued, distorts the true essence of judicial autonomy and hinders a proper understanding of the judiciary's role in a democratic framework.

He implicitly called for a re-evaluation of what constitutes genuine independence for the judiciary in India, moving beyond a simplistic opposition to the executive to foster a more robust and principled understanding of its function.

Source: Original reporting via news reports