It was indeed a wise man who said that judges should shun the spotlight and let their judgments do the talking. But that was before the era of the sound byte, Youtube and 24x7 breaking news. And, of course, reemployment after retirement or the need to demonstrate loyalty. In India's legal firmament today judgments do not make news, mainly ( I suspect) because they have become one sided and therefore predictable. It is the obiter dicta which makes news nowadays, delivered from the lofty perch of finality, if not infallibility.
Chief Justice of India the Hon' Suryakant is currently not only the master of the roster, he is also the master of the obiter dicta. How can we forget, if not treasure, his denunciation of the three distinguished academicians who wrote that chapter on the judiciary for an NCERT textbook, banning them from any government engagement? The later cockroach comment is now part of legal folklore. And just last month, in an address at Oxford University, he remarked that India should develop its own "swadeshi jurisprudence", something even our freedom fighters had not thought of.
I am not sure what the Hon'ble judge meant by this call to a legal atmnirbharta, or whether this self-inflicted ghetto-isation is the right course to follow. For, in civilised democracies at least, jurisprudence and laws are aligned to global principles, concepts, conventions, declarations, rights and charters, and till recently we more or less conformed to these universal principles. Over the last decade or so, however, we have started ploughing our own legal furrow, and the remark of the CJI has only served to draw attention to this unhealthy development.
For, it must be lamented, swadeshi jurisprudence has (unfortunately) already arrived in India, which is why, according to the WJP (World Justice Project) Rule of Law ranking for 2025, we are at 86 out of 143 countries, firmly in the bottom half ; we have been consistently slipping down this index - in 2014 we were at 66. Frankly, I am not surprised, because the evidence is strewn all over the road to a swadeshi jurisprudence, like road kill. It is the price we have paid for the gradual loss of independence, integrity and quality of the judiciary, and its eagerness to accommodate the executive.
Jurisprudence in India today appears to be governed by four made-in-India/ swadeshi doctrines which should be a blot on any justice system: the doctrines of the fait accompli, sealed cover, ignore the science, reward the criminal. Important, even constitutional, challenges to the executive's actions are kept on the back- burner for so long (Article 370, CAA, SIR, Shiv Sena split) that by the time they are decided it is impossible to turn back the clock and undo what the govt. of the day has already implemented on the ground. The sealed cover has become the standard fall-back option for denying full disclosure to civil society petitioners, or for not giving rebuttable reasons for a particular judgment (Rafale, Pegasus, Vantara, Hindenberg). Increasingly, this spectre of our swadeshi jurisprudence, like the executive, shows disdain and contempt for science, as in the case of stray dogs, Aravalli mountains, the Char Dham highway, the Great Nicobar project: more trust is reposed on govt. appointed committees and patently partisan Ministries than on scientists, domain experts and specialised organisations working in the relevant field. Finally, this hybrid form of justice ensures also that the criminal will be duly allowed to keep the proceeds of his crime ( Ram Mandir, Electoral bonds) even as his actions themselves are declared irregular! A judicial paraprosdokian if ever there was one.
Perhaps the biggest stain on our swadeshi system of justice is the default denial of bail to 3 out of 4 accused who are otherwise entitled to bail under law: 74% ( 3.9 million) of the prison population are undertrials, and the position keeps getting worse as more and more draconian laws are being promulgated every day. Eminent scholars, academicians, students, social activists, journalists are denied bail for as long as five years, even though they are not convicted, and in many cases their trials have not even commenced. A university professor with 90% disability is deemed to be a national security threat, kept in jail for years without a trial, finally acquitted and released by a High Court, but pushed back in within 24 hours at an urgent hearing on a Saturday by the apex court! And here is the supreme irony- while those who are not convicted are kept in jail, the convicted are released on parole whenever they want a breath of fresh air! Millions of voters are denied their voting rights by a capricious CEC and his untested algorithms, their appeals are kept pending, but the swadeshi response to their entreaties is a callous- Never mind, you can vote in the next elections! An exercise, based on mysterious algorithms , which has disenfranchised millions of citizens, has been given the highest court's imprimatur of approval. Thanks to this endorsement the citizenship, welfare benefits and very social identity of tens of millions more are now being denied. Judicial orders are flouted by the executive on a routine and continuing basis- on Aadhaar, demolitions, bulldozers, hate speech, voter rolls, citizenship, to mention just a few areas- but there is no pushback or punitive action by the courts.
The swadeshi jurisprudence model has ensured that our judicial system is broken and on the point of total collapse. There is a backlog of 54 million cases which will take 323 years to clear; of these 180000 cases are pending for more than 30 years. India has only 15 judges per million population against a developed country average of 150-200 (China's figure is 300). It gets worse- the judiciary has carved out so many privileges for itself, it is accountable to no one: a Collegium system ensures that only judges can appoint judges, and that too in the opaquest of manners; judicial corruption cannot be investigated unless the judiciary itself permits it (!); even though all govt appointees are required to declare their assets, it is reported that only 12% of judges have done so; it has been reported that, historically, appointments to the Supreme Court are limited to just 250 families in the entire country. This is a swadeshi blueprint for judicial anarchy and ochlocracy, not jurisprudence
No, sir, the last thing we need is a swadeshi version of what a justice system should be. The swadeshi model ensures that democracy (and justice) has become a privilege available only to those with influence. Your constitutional rights depend on who you are. Leave swadeshi to the politicians, the jurisprudence of rights, justice and equity needs a more solid and time-tested foundation. We need to adopt best global practices and principles and dig ourselves out of this swadeshi hole. And yes-let judgments do the talking, not obiter dicta.
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