The recent case (2026) of pending impeachment proceedings of Justice Yashwant Sinha (Allahabad High Court) in the Parliament raises yet again the issue of probity and hence fairness in higher judiciary. In order to foreclose the impeachment proceedings in Parliament, Justice Varma has resigned in April, 2026. However, the president has not accepted his resignation so far. This has complex legal implications as it highlights the difference between impeachment and resignation of a Judge. Unlike resignation, an impeached judge may be deprived of his post-retirement benefit and further employment under the government. It is not yet clear as to whether the parliament will proceed with Impeachment or not? The report of the Inquiry Committee appointed by the Parliament is yet to be submitted.
In a separate development, in February, 2026 the Supreme Court took the suo-moto cognizance of a chapter about judiciary in the Class 8 book published by the NCERT. The court directed the immediate withdrawal of the chapter as it undermines the faith of people in judiciary. The title of the chapter was ‘The Role of Judiciary in our Society’, which among things, discussed the corruption in judiciary. Subsequently, the NCERT removed the controversial chapter from all published books.
These issues raise the concerns about the challenges of Indian judiciary On the basis of history of the functioning of the judiciary since 1950, the following challenges the Indian judiciary may be identified:
1.Controversy Over Collegium System– Since 1950 till 1993, the Judicial appointments in higher judiciary were largely controlled by the executive, with the judicial power confined to the ‘consultation’ by the executive. However, following the Second Judges case (1993), the Judiciary has largely controlled the appointment of judges with some say given to the Executive. Though, at present, the judiciary enjoys the last say in the appointment of the Judges of the Supreme Court and high courts under the prevailing Collegium system, the government was not pleased with this position. The Parliament passed the 99th Constitution Amendment Act in 2014 which provided for the establishment of the Six-member National Judicial Commission headed by the CJI for the appointment of judges. The other members of the Commission were two senior judges, the Union Law Minister and the two jurists appoint ted by the government. However, the Supreme Court declared this amendment as null and void in 2015, that the presence of the Law Minister in the Commission undermines the independence of the judiciary, which the part of the basic structure of the Constitution. After this order, the old system of Collegium has again become effective. However, the government is not satisfied with the Collegium mechanism.
The appointment of CJI has also generated controversy due to undue interference by the executive. The normal practice in this regard has been the appointment of CJI on the basis of seniority to avoid any controversy. But on two occasions, the Union government has adopted pick and choose method violating the seniority principle. Following the Keshvananad Bharti case, this practice became very pronounced. Thus, in 1973, Justice AN Ray was appointed as the CJI by superseding the three senior judges. Similarly, in 1977 the appointment of Justice HM Beg as CJI in place of the senior most Justice HR Khanna caused fresh controversy. Justice Khanna was the part of Keshvanand Bharti bench in 1973 and gave his decision against the government. This was seen by many observers as the undue interference of the government with negative impact on the judicial independence.
Political concerns have been raised in last few years against the viability of Collegium system mainly on the ground of secrecy and nepotism, but judiciary has held its ground. The political leaders of the present ruling party at the centre have raised concerns about lack of transparency and nepotism in judicial appointment at higher level judiciary. These charges may not be entirely true, but they certainly call for some reforms in the prevailing collegium system to ensure its fairness and transparency.
2. Judicial Outreach: The judiciary in India enjoys the power of judicial review by which it can declare any law passed by the Parliament or any order of the Executive as null and void if the same violates the provisions of the Constitution. But, in 1982, the apex court invented the mechanism of Public Interest Litigation (PIL) which enables it to hear the complaints regarding public interest without the requirement of Locus Standi. In the PIL cases the SC has displayed some sort of judicial activism by issuing g directions to the executive and administration for the time bound implementation of laws and programmes. Sometimes the over jealous judiciary has also stepped into legislative domain by issuing orders have the nature of law. Though the SC has issued guideline for PIL in 1988 (modified in 2003) for the restrained use of PIL, but many observers have accused the judiciary of over activism and interfering in the domains of executive and legislature both (Supreme Court of India: 2021). This has posed the danger of upsetting the fine balance between the three organs of the government as maintained in the Constitution. Thus, the government is satisfied with the excessive use of PIL to erode its authority. Former Judge of the Supreme Court, Justice Katju has been highly critical of judicial activism and outreach by the Indian Judiciary.
3. Post-retirement Benefits: The greed is the prime cause of human falling. There have been in stances in India when the judges of the higher judiciary have been given plum posting after their retirement. Though there is no legal bar on such post-retirement benefits to judges, but such practices invite the criticism of judges lowering the dignity of judiciary by accepting such post-retirement benefits. Surely, this has negative impact on judicial independence and impartiality of judiciary. Some of the examples of such post-retirement befits availed by judges in India are:
(a) Justice MC Chagla of Bombay High Court (1947-58), after retirement, was appointed as Union Minister and later Ambassador to the US and UK.
(b) In 1970, Justice M Hidaytullah was elected Vice-president of India.
(c) Justice Bahrul Islam, a Member of Rajya Sabha (1962-72) was appointed as the judge the Gauhati High Court in 1972 and later was elevated to the Supreme Court. He remained in the judicial service from 1972 to 1983 and after his retirement, he was again elected the member of Rajya Sabha in Congress ticket for the perieod1983-89.
(d) In 1991 Justice Rangnath Mishra was appointed as the Chairman of the National Human Rights Commission and latter was elected as a member of Rajya Sabha on Congress ticket.
(e) Justice P Sadashivam, after retirement from the SC, was appointed Governor of Kerala in 2014. He was associated with the judgment in Sohrabuddin Sheikh case favour of Amit Shah.
(f) Justice Ranjan Gogoi, who retired as CJI was elected to Rajya Sabha in 2020.
4. Corruption and lack probity and upright behaviour: in last few decades, there have been man y complaints of corrupt practices in higher judiciary which has shaken the faith of people. In 1993, The Parliament initiated impeachment proceedings against Justice V Ramaswami of Chandigarh High Court on the charges of misuse of funds for person al benefits. Justice P Dinkaran and Justice Soumitra Sen resigned in 2011 on the charges of corrupt practices. Justice CS Karnan was awarded six-month jail term for leveling charge of corruption against judges of the Supreme Court. In 2018, three judges of SC held a press conference against CJI Deepak Mishra for unfair allotment of cases for hearing. In 2019, the charge sheet was filed against Justice S. N Shukla of Allahabad High Court on corruption charges (The Economic Times:2019). Justice Ranjan Gogoi, the CJI was accused of case of sexual harassment in 2019 by a female employee of the Court.
The recent case involves about Justice Yashwant Varma (Allahabad High Court) who was working as Judge of Delhi High Court, when stacks of burnt notes were found in his official residence in Delhi in March, 2025. He was immediately transferred to his original place of Allahabad High Court and also not given any judicial work. The Supreme Court conducted internal inquiry and found him guilty and asked him to resign. But he refused to resign. Hence, the Supreme Court recommended to the President of India to initiate impeachment proceeding. The Parliament has started impeachment proceeding against Justice Varma, which is still pending in the Parliament. However, Justice Varma has resigned on 10 April, 2026, but the President has not accepted his resignation. Thus, the pending impeachment proceedings will go on. If impeachment succeeds, Justice Varma may be deprived of his post-retirement benefits. On the other hand, if his resignation is accepted, before the impeachment, he is entitled to all his post-retirement benefits. These cases are increasing and put a question mark against the probity of the members of the Indian Judiciary, which has serious implications for the judicial independence, because, it not gives opportunity to legislature and executive to interfere in the Judicial functioning, but also diminishes public trust in the judiciary.
5. Huge Pendency of cases: It is said that the justice displayed is justice denied. In view of the huge pendency of the cases in the judiciary, the courts are not able to deliver justice in time. This also shakes the faith of people in the effectiveness of judicial mechanism and justice as such. As per the data of the National Judicial Data Grid, (2026), there are 5.4 crores cases pending in the Indian courts. Out of this, 4.9 crore cases are pending in district courts, 64.6 lakh cases are pending in the High Courts and nearly 95936 cases are pending in the Supreme Court (E-Committee Supreme Court of India: 2026). The possible reasons for this pendency are many: lengthy legal process, existing vacancies of judges and shortage of courts as per the requirement. In India there is one judge per on lakh people which government want to increase five times. Whatever may the reason for pendency, this has undermined the delivery of fast justice to the people and undermined people’s faith in the judiciary.
In Brief, the challenges of the Indian judiciary are: the transparency over the appointment of judges, the increasing outreach of the courts under the PIL, practice of post-retirement benefits to judges, increasing cases of corruption and lack of probity among the members of judiciary, and of course the huge pendency of the cases in the courts. The International Commission of Jurists in its report (2025) on the independence on Indian Judiciary for the period 2014-24, remarked, ‘A crucial weakness (of the Indian Judiciary) that consistently emerges is the lack of predetermined and objective criteria and deficit of transparency, whether in matters of selection and appointment or transfer of judges or judicial accountability and concomitantly excessive discretion, exercised by the Chief Justice of the Supreme Court as well as the veto power that the executive exercises in some aspects.’
6. Exorbitant Cost of Justice in India- The Judiciary claims that the gates of Supreme Court and the High courts are open to all without discrimination. But opening the gate is no guarantee of access to all due to costly judicial proceedings particularly in The Supreme Court and High Courts. Can a middle-class person afford the fee of a good lawyer and other expenditure in Supreme Court? One may argue that Indian Constitution (Article 39A) has provision for the legal aid to the marginalized sections of Indian citizens. But that is just eyewash. The free legal aid provision of Article 39A was put in action through the legal Services Authority Act, 1987. The section 12 of this Act lays down eligibility criteria for the persons to receive legal aid by the states. Under the criteria, the following persons are eligible to receive legal aid from the government:
1. a member of a Scheduled Caste or Scheduled Tribe;
2. a victim of trafficking in human beings or begar as referred to in article 23 of the Constitution;
3. a woman or a child;
4. a person with disability as defined in clause (i) of section2 of the Persons With Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995.
5. a person under circumstances of underserved want such as being a victim of a mass disaster, ethnic, violence, caste atrocity, flood, drought, earthquake or industrial disaster; or
6. an industrial workman; or
7. in custody, including custody in a protective home or in a juvenile home or in a psychiatric hospital or psychiatric nursing home
8. in receipt of annual income less than rupees nine thousand or such other higher amount as may be prescribed by the State Government, if the case is before a court other than the Supreme Court, and less than rupees twelve thousand or such other higher amount as may be prescribed by the Central Government, if the case is before the Supreme Court.
This is very low threshold of beneficiaries, which leaves out majority of lower and middle-income citizens from the per view of this legal aid. Lack of access to justice due to any reason is nothing but the denial of justice.
In nutshell, these challenges not only undermine the independence of the judiciary but also undermine the faith of people in Judiciary and hence the entire democratic process in India. Justice is the cornerstone of democracy, which is served by a fair and independent judiciary.
Leave a Reply