“Black Sheep In Judiciary Is Increasing; Courts At All Levels Moving Towards Majoritarianism”: Justice Deepak Gupta — A Serious Warning On Judicial Independence
Introduction
Few observations about the Indian judiciary carry the weight of a former Supreme Court judge speaking from decades of experience in the legal system. Justice Deepak Gupta, former judge of the Supreme Court of India, has once again raised uncomfortable but fundamental questions about the state of judicial independence, constitutional rights, dissent, judicial appointments and the growing danger of majoritarianism.
In his article “The true meaning of freedom”, published by The Tribune on September 7, 2026, Justice Gupta makes a striking observation: “The number of black sheep is increasing.” He further states that, unfortunately, “courts at all levels are moving towards majoritarianism.”
These are not observations that should be dismissed merely as political commentary. They deserve serious constitutional examination because the independence of the judiciary is not an institutional luxury. It is one of the essential foundations upon which the rule of law, fundamental rights and constitutional democracy rest.
At the same time, the observations must be understood for what they are: the considered views of a former Supreme Court judge, not findings or declarations made by a presently constituted judicial bench.
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What Exactly Did Justice Deepak Gupta Say?
Justice Deepak Gupta’s article is substantially broader than the headline quotation. He begins by examining the meaning of freedom and argues that political independence from colonial rule is only one dimension of freedom.
According to him, genuine freedom also requires citizens to be able to think, speak and dissent without fear. He connects this freedom with equality, human dignity, constitutional rights and the absence of discrimination based upon caste or religion.
He then turns specifically to the legal fraternity and argues that an independent judiciary requires an independent bar. In his assessment, lawyers must be capable of rising above political affiliations and standing up for citizens against arbitrary exercise of power.
His central judicial-independence argument is particularly significant. He states that an independent and fearless judiciary requires judges possessing integrity, intellect and “a spine”—in other words, the courage to perform their constitutional duty without fear or favour.
This Is Not A New Supreme Court Judgement
As a matter of legal accuracy, the development should not be described as a “Supreme Court judgement of Justice Deepak Gupta”. Justice Gupta retired from the Supreme Court in 2020, and the present statement was made by him as a former judge in a published article.
This distinction matters. A judicial judgement creates a legal holding within the constitutional and precedential structure of the case. An article by a former Supreme Court judge, however influential, is an expert constitutional critique. Its propositions may be persuasive and worthy of serious debate, but they do not themselves constitute binding precedent.
The primary source for the present statement is Justice Gupta’s article published in The Tribune, dated September 7, 2026.
What Does “Majoritarianism” Mean In The Judicial Context?
Justice Gupta makes an important constitutional distinction between majority rule and majoritarianism.
Democracy necessarily involves majority decision-making. Elections are won by majorities, governments are generally formed by majority support, and legislatures ordinarily operate through voting.
But constitutional democracy is not simply “rule by the majority”. A constitutional democracy also protects the individual and minority against the majority.
That is precisely where the judiciary becomes indispensable.
If a popular majority can determine the rights of an unpopular minority, there would be little need for fundamental rights, judicial review or constitutional guarantees. The Constitution places substantive limitations upon majoritarian power.
Justice Gupta therefore describes majoritarianism—where the voice of the other side is not heard—as fundamentally inconsistent with democratic constitutionalism.
This is an important proposition. The Constitution is not merely an instrument for implementing the will of the majority; it is also a shield protecting constitutional minorities and individual liberty.
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Fundamental Rights And The Constitutional Responsibility Of Courts
Justice Gupta places particular emphasis upon the constitutional courts’ responsibility to protect fundamental rights.
The Supreme Court and High Courts are not merely courts for resolving private disputes. Their constitutional jurisdiction places them in a special position as guardians of constitutional liberties.
Article 32 itself is a fundamental right, enabling an individual to approach the Supreme Court for enforcement of fundamental rights. Article 226 gives High Courts a wider writ jurisdiction.
This constitutional architecture demonstrates that the judiciary is intended to provide an effective remedy when governmental or institutional power threatens liberty.
Justice Gupta argues that constitutional courts have, in recent years, not always displayed sufficient sensitivity or strength in protecting liberty.
“Bail, Not Jail” And The Crisis Of Pre-Trial Liberty
One of the strongest parts of Justice Gupta’s article concerns personal liberty.
He invokes the familiar principle that “bail, not jail” should ordinarily be the rule, while observing that in actual practice prolonged incarceration of undertrials has become a serious problem.
He points to the large proportion of undertrial prisoners in India’s prisons and raises questions about the constitutional consequences of keeping individuals incarcerated for years before their trials are concluded.
This issue goes to the heart of Article 21.
A criminal accusation is not a conviction. The presumption of innocence remains a foundational principle of criminal justice. When the criminal process itself lasts for many years, detention can become punishment before conviction.
That is why the Supreme Court has repeatedly treated speedy trial as an important component of Article 21 jurisprudence.
Justice Gupta’s broader point is therefore significant: constitutional liberty becomes meaningless if an individual technically retains the presumption of innocence but spends the better part of his life behind bars awaiting trial.
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The Umar Khalid Reference
Justice Gupta specifically refers to Umar Khalid, who has remained incarcerated for years without commencement of trial, and questions the constitutional implications of prolonged detention.
However, legal accuracy requires an important qualification.
The Supreme Court judgement concerning Umar Khalid’s bail application cannot simply be described as holding that his continued detention is unconstitutional. The Supreme Court’s January 2026 judgement applied the statutory restrictions governing bail under Section 43D(5) of the Unlawful Activities (Prevention) Act and concluded that the statutory threshold for bail was not satisfied on the material before it.
Thus, Justice Gupta’s criticism is essentially a constitutional and jurisprudential critique of prolonged incarceration and the functioning of the justice system; it should not be presented as though the Supreme Court has already judicially declared Umar Khalid’s detention unlawful.
Places Of Worship Litigation And The Majoritarianism Debate
Justice Gupta also raises the highly sensitive issue of litigation concerning religious places of worship.
He contrasts the Supreme Court’s Ayodhya judgement and its treatment of the Places of Worship Act with subsequent litigation concerning the Gyanvapi mosque.
His concern is that judicial orders allowing historical or archaeological enquiries concerning places of worship can potentially generate further litigation and social tension.
This is undoubtedly an area requiring exceptional judicial sensitivity because the legal question is intertwined with communal harmony, historical claims, statutory limitations and constitutional fraternity.
Justice Gupta characterises the subsequent approach as moving towards appeasement of the majority. That is his assessment, not a judicial finding. It should therefore be reported as such.
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The Preamble As The Constitutional Test
One of the most powerful aspects of Justice Gupta’s argument is his reliance upon the constitutional vocabulary of justice, liberty, equality and fraternity.
These are not ornamental words.
They represent the constitutional philosophy within which governmental institutions—including courts—must operate.
Justice is meaningless without equality. Equality becomes hollow without liberty. Liberty becomes insecure without institutional protection. And all three become vulnerable when fraternity disappears from public life.
For this reason, the judiciary cannot merely ask whether a technically correct legal procedure has been followed. Constitutional adjudication often requires courts to consider the larger impact of state power upon human dignity and individual freedom.
Dissent Is Not Anti-National
Justice Gupta also strongly defends dissent.
His position is that citizens must be able to disagree with government policy peacefully and within the framework of law. He argues that criticism of government is an essential part of democratic functioning.
This proposition is deeply embedded in constitutional democracy.
A government is not identical with the nation. A citizen may oppose a governmental decision while remaining completely committed to the Constitution and the country.
Indeed, democratic government is strengthened—not weakened—when citizens can question authority.
A judiciary that protects only agreeable speech is not adequately protecting freedom of expression. The real constitutional test often arises when the speech is unpopular, uncomfortable or directed against those who exercise power.
The Collegium And The Problem Of Transparency
Justice Gupta identifies judicial appointments as one of the root causes of his concerns.
He argues that the collegium system has become opaque and that even judges outside the collegium may not always know the precise criteria by which appointments and elevations are determined.
This criticism deserves attention irrespective of one’s position in the collegium.
The constitutional question is not merely who appoints judges. It is also whether the appointment process inspires public confidence.
Judicial independence requires protection from executive interference. But independence must coexist with transparency, accountability and institutional credibility.
That creates a difficult constitutional balance:
- The executive cannot be permitted to control judicial appointments.
- The judiciary cannot operate as an entirely closed institution.
- Appointments must be based upon demonstrable merit, integrity and competence.
- Representation and diversity within the judiciary deserve serious consideration.
- The process should provide sufficient institutional transparency to command public confidence.
Representation In The Higher Judiciary
Justice Gupta further raises the issue of social representation in appointments to the Supreme Court and High Courts.
He observes that recent appointments have, in his assessment, disproportionately represented upper-caste candidates and argues that the Supreme Court should reflect all sections of Indian society.
This issue deserves careful treatment.
Judges must unquestionably be appointed on merit, competence, integrity and constitutional suitability. At the same time, a judiciary that is visibly representative of India’s social diversity can strengthen public confidence in the institution.
Representation, however, cannot mean compromising judicial competence. The constitutional challenge is to achieve both: excellence and diversity.
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“Black Sheep In Judiciary Is Increasing” — The Most Serious Warning
The most disturbing portion of Justice Gupta’s article is his observation that although the overwhelming majority of judges are people of integrity, “the number of black sheep is increasing.”
The expression “black sheep” is obviously not intended to describe the judiciary as a whole. Justice Gupta expressly acknowledges that the vast majority of judges are men and women of integrity.
His concern is institutional: even a small number of compromised judges can cause disproportionate damage to public confidence.
This is because the judiciary operates differently from most public institutions.
A government may lose an election. A minister may be removed. A bureaucrat may be transferred.
But when public confidence in a judge collapses, the damage reaches the legitimacy of the judicial process itself.
A litigant may lose a case and accept it because the law went against him. But if that litigant believes that the decision was influenced by political affiliation, money, caste, religion, personal connections or other extraneous considerations, the legitimacy of the judgement suffers.
That is why judicial integrity is not simply an ethical requirement. It is a constitutional necessity.
There Can Be No Independent Judiciary Without an Independent Bar
Justice Gupta also makes a point that lawyers should not ignore: an independent judiciary requires an independent bar.
This is particularly important in constitutional litigation.
Judges do not investigate every matter independently. They depend substantially upon the Bar to present facts, legal arguments and constitutional questions fearlessly.
If lawyers become afraid of challenging government action, if professional advancement depends upon political connections, or if commercial considerations completely overwhelm professional ethics, the quality of adjudication inevitably suffers.
A fearless judiciary therefore requires fearless advocates.
Equally, fearless advocacy does not mean irresponsible advocacy. The independence of the Bar must be accompanied by professional discipline, candour towards the court and respect for legal ethics.
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Judicial Independence and Public Perception
There is another dimension that deserves consideration: public perception.
Justice Gupta has previously spoken publicly about judicial independence and the danger of political influence. In a 2020 interview following his retirement, he said that persons in power may attempt to influence the judiciary, but ultimately judges must remain independent. He also acknowledged that there may be “black sheep” in the judiciary while emphasising that the institution as a whole should not be characterised as compromised.
His present article therefore continues a concern he has expressed before: the judiciary must retain sufficient institutional independence to withstand pressure from those who wield political or economic power.
Constitutional Morality Versus Popular Sentiment
The judiciary’s hardest cases are rarely those in which everybody agrees with the judgement.
The real test comes when public sentiment is overwhelmingly on one side while constitutional principles point in another direction.
A constitutional court cannot decide a case merely by asking, “What does the majority want?”
The proper questions are different:
- What does the Constitution guarantee?
- What does the statute provide?
- What does binding precedent require?
- Has the State established a constitutionally permissible justification for restricting liberty?
- Are similarly situated citizens being treated equally?
- Is the restriction proportionate?
- Does the decision protect constitutional fraternity and dignity?
That is why judicial independence is indispensable. The judge must be capable of deciding according to law even when the decision is unpopular.
Judicial Courage: The Forgotten Ingredient
In my view, this is ultimately what Justice Gupta’s article is asking the legal fraternity to confront.
Judicial independence is not merely structural.
It is also personal.
A constitution can create an independent judiciary on paper. A collegium can appoint judges. Parliament can enact safeguards. Judicial service rules can prescribe standards of conduct.
But ultimately, when a judge sits alone with the file before him or her, constitutional democracy depends upon the individual’s integrity and courage.
Justice H.R. Khanna remains an enduring example of this principle. His dissent during the Emergency demonstrated that judicial office sometimes requires a judge to stand alone against overwhelming institutional and political pressure.
The lesson is simple: judicial independence is meaningful only when judges are prepared to exercise it.
A Necessary Word Of Caution
As lawyers, we must also be careful not to turn criticism of the judiciary into an attack upon the judiciary.
Every institution must be open to criticism. Judges are not infallible. Judgements can be wrong. Constitutional interpretation can be debated. Judicial appointments can be criticised. Administrative decisions of courts can be questioned.
But criticism must remain evidence-based and institutionally responsible.
The fact that a judgement favours one community, political group or ideological position does not automatically establish judicial bias. Judicial decisions must be examined through their reasoning, legal principles, statutory framework and constitutional consequences.
Likewise, disagreement with a judge’s philosophy is not proof of corruption or political allegiance.
There is an important difference between judicial error, judicial philosophy, judicial conservatism, judicial activism, institutional weakness and judicial misconduct. These concepts should never be casually conflated.
Justice Gupta himself acknowledges that the vast majority of judges remain people of integrity.
Why Justice Deepak Gupta’s Warning Matters
The significance of this intervention lies less in any individual example and more in the institutional question it raises:
Can a constitutional democracy survive if citizens cease to believe that courts will protect them against the power of the majority?
The answer, in my considered view, must be no.
The judiciary is the institution to which an ordinary citizen turns when every other door appears closed.
When the citizen fights the state, the judiciary must be independent.
When the minority confronts the majority, the judiciary must be neutral.
When an unpopular person claims liberty, the judiciary must apply the Constitution.
When the government exceeds its legal authority, the judiciary must be willing to say so.
And when the majority itself demands something contrary to constitutional limitations, the court must have the courage to uphold the Constitution.
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What Should Be Done?
Justice Gupta’s intervention should not end with criticism. It should trigger institutional reform.
- Make Judicial Appointments More Transparent
- Strengthen Mechanisms Against Judicial Misconduct
- Put Personal Liberty At The Centre Of Criminal Justice
- Strengthen Bail Jurisprudence
- Encourage Greater Diversity
- Strengthen The Independence Of The Bar
- Give Greater Importance To Reasoned Judicial Orders
The collegium’s independence must be preserved, but greater transparency concerning criteria, institutional reasons and diversity should be considered.
Complaints of corruption or serious misconduct must be dealt with through credible, confidential and effective institutional mechanisms. The objective should be neither witch-hunting nor protecting the wrongdoer.
Courts should continuously monitor prolonged undertrial incarceration and ensure that delay in trial does not effectively become punishment.
Where statutory restrictions permit bail, courts should remain conscious that incarceration before conviction carries enormous consequences for employment, family life, reputation and human dignity.
Merit must remain central, but the higher judiciary should also reflect the extraordinary social, regional, linguistic, religious and professional diversity of India.
Professional independence of advocates must be protected. At the same time, legal education, ethics and disciplinary standards must be strengthened.
When a court interferes with liberty, restricts speech or affects constitutional rights, the reasoning must be sufficiently clear to enable the citizen to understand why the Constitution permits the restriction.
Conclusion
Justice Deepak Gupta’s latest intervention is uncomfortable precisely because it raises questions that a constitutional democracy cannot afford to ignore.
His warning that “the number of black sheep is increasing” is not a declaration that the Indian judiciary has lost its integrity. On the contrary, he expressly recognises that the vast majority of judges remain people of integrity. His concern is that even a minority of compromised or insufficiently independent judges can damage public confidence in the entire institution.
His second warning—that courts at all levels are moving towards majoritarianism—raises an even deeper constitutional question.
The judiciary cannot become an instrument for implementing the preferences of whichever group happens to constitute the majority. Its constitutional role is precisely to ensure that the Constitution remains superior to temporary political, social or majoritarian pressures.
The true strength of the Indian judiciary will therefore not be measured by how often it agrees with the government, the opposition, the majority or the minority.
It will be measured by something much simpler:
- Can an ordinary citizen walk into a courtroom and genuinely believe that the Constitution will protect him or her without fear or favour?
That confidence is the real capital of the judiciary.
Once that confidence disappears, no amount of institutional architecture can easily restore it.
Justice Gupta’s concluding warning therefore deserves serious consideration by every constitutional lawyer, judge, law student and citizen: if people lose faith in the judiciary, the judiciary itself risks becoming irrelevant—and without an effective judiciary, constitutional democracy itself is placed in peril.
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Legal Position And Source Note
Primary source of the present statement: Justice Deepak Gupta, “The true meaning of freedom”, The Tribune, updated September 7, 2026. The article expressly contains the observations concerning “black sheep” in the judiciary and courts moving towards majoritarianism.
Important Legal Clarification
The above is an analysis of Justice Gupta’s published constitutional commentary and should not be described as a fresh Supreme Court judgement.
| Particular | Details |
|---|---|
| Author | Justice Deepak Gupta |
| Nature of Material | Published constitutional commentary |
| Publication | The Tribune |
| Updated | September 7, 2026 |
| Legal Status | Constitutional commentary, not a fresh Supreme Court judgement |
For context, Justice Gupta’s earlier Supreme Court judgements include Arun Kumar Gupta v. State of Jharkhand, W.P.(C) Nos. 190 and 391 of 2018, decided on February 27, 2020, reported as (2020) 13 SCC 355; 2020 INSC 228. That case concerned compulsory retirement of judicial officers and discussed, among other matters, the High Court’s constitutional supervisory authority under Article 235.
Justice Gupta’s present intervention should therefore be read as the constitutional reflection of a former Supreme Court judge with long experience in the judicial system—not as a binding judicial precedent.
Frequently Asked Questions (FAQs)
1. What Did Justice Deepak Gupta Mean By Saying “Black Sheep In Judiciary Is Increasing”?
Justice Deepak Gupta, former Supreme Court Judge, used the expression “black sheep” to express concern about a growing number of judges whom he believes may not always demonstrate the level of integrity, independence and judicial courage expected from the judiciary.
He clarified that the overwhelming majority of judges are people of integrity, but even a small number of compromised judges can seriously damage public confidence in judicial independence and the rule of law.
2. What Did Justice Deepak Gupta Mean By Saying That Courts Are Moving Towards Majoritarianism?
Justice Deepak Gupta’s observation that “courts at all levels are moving towards majoritarianism” refers to his concern that judicial decision-making may sometimes become influenced by majority sentiment rather than being guided exclusively by the Constitution, fundamental rights, equality, liberty and constitutional morality.
In a constitutional democracy, courts have a crucial responsibility to protect individual and minority rights even when those rights are unpopular.
3. Why Is Judicial Independence Important In India?
Judicial independence is essential because courts must be able to decide cases according to law and the Constitution without pressure from the government, political parties, powerful individuals or public opinion.
An independent judiciary protects fundamental rights, personal liberty, equality before law and the rule of law. Without judicial independence, citizens may lose confidence that courts can provide impartial constitutional protection.
4. What Did Justice Deepak Gupta Say About Bail, Undertrial Prisoners And Personal Liberty?
Justice Deepak Gupta raised concerns about prolonged incarceration of undertrial prisoners and emphasised the importance of the principle of “bail, not jail”.
His broader constitutional concern is that a person who has not yet been convicted should not effectively suffer punishment through excessively long pre-trial detention.
Prolonged incarceration can have serious consequences for Article 21, personal liberty, speedy trial and human dignity.
5. What Concerns Did Justice Deepak Gupta Raise About The Collegium System And Judicial Appointments?
Justice Deepak Gupta expressed concerns about transparency in the judicial appointment and collegium system.
He questioned whether the criteria governing appointments and elevations are sufficiently transparent and also discussed the importance of greater social representation in the higher judiciary.
The broader issue is how India can preserve judicial independence while improving transparency, accountability, diversity and public confidence in judicial appointments.
AI Key Takeaways
- Justice Deepak Gupta, former Supreme Court Judge, has raised serious concerns about judicial independence, judicial integrity and constitutional democracy in his recent article “The True Meaning of Freedom”.
- Justice Gupta warned that “the number of black sheep is increasing” in the judiciary, while acknowledging that the overwhelming majority of judges continue to maintain integrity.
- His observation that “courts at all levels are moving towards majoritarianism” highlights the constitutional danger of judicial decisions becoming influenced by majority sentiment rather than constitutional principles, fundamental rights and the rule of law.
- Judicial independence in India is essential to protect citizens from arbitrary state action, political pressure and majoritarian influence.
- Justice Gupta emphasised the importance of judicial courage, arguing that judges must possess integrity, intellect and the courage to decide cases without fear or favour.
- The article highlights the constitutional importance of personal liberty, Article 21, speedy trial and the principle of “bail, not jail”.
- Prolonged detention of undertrial prisoners raises serious questions concerning personal liberty, human dignity and access to timely justice.
- Justice Gupta also discusses concerns surrounding religious-place litigation and majoritarianism, stressing the need for courts to exercise constitutional sensitivity in matters capable of affecting communal harmony.
- Judicial appointments and the collegium system remain important areas of debate, particularly regarding transparency, accountability, merit, diversity and public confidence.
- Justice Gupta stresses that an independent judiciary requires an independent bar. Lawyers must be willing to challenge arbitrary governmental action and protect constitutional rights through fearless but responsible advocacy.
- Dissent and criticism of government are essential elements of democracy. Constitutional freedom cannot be meaningful if citizens are afraid to express unpopular opinions.
- The central constitutional lesson is that democracy is not merely majority rule. Fundamental rights exist precisely to protect individuals and minorities from the misuse of majoritarian power.
- A strong judiciary must remain independent, impartial, fearless and constitutionally accountable, while criticism of judicial decisions should remain evidence-based and institutionally responsible.
- The ultimate test of judicial independence is whether an ordinary citizen can approach a court with confidence that the Constitution will protect his or her rights without fear or favour.
Justice Deepak Gupta And Judicial Independence:
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Summary
Justice Deepak Gupta, former Supreme Court Judge, has warned about increasing concerns regarding judicial integrity and what he describes as a movement towards majoritarianism in courts at all levels.
His comments focus on judicial independence, constitutional morality, fundamental rights, personal liberty, undertrial detention, judicial appointments, collegium transparency and the need for an independent bar.
His broader message is that courts must protect constitutional rights and minorities even when such protection conflicts with majority sentiment.
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