JUSTICE Deepak Gupta, a former judge of the Supreme Court, marked the eightieth anniversary of Independence by asking in print what few in his position have dared to ask; how free are we, the citizens of India? His answer in The Tribune was unsparing. The constitutional courts “have not shown the requisite sensitivity or strength”; the right to liberty “is violated with impunity, and the courts in many cases have become mute spectators”; and “the collegium system has failed. It has become totally opaque.” When a man who spent half a century in the law and sat on the highest bench says this, the country should listen.

In fact, the CPI(M) has been saying more or less the same, for years now. What is being squandered is the trust the people have in the judiciary. The issue is not one judge or another, but the system of justice. In its delays, its selectivity and its social composition, it has come to serve the powerful and to fail the rest.

THE ARITHMETIC OF DELAY

Begin with the figures the Law Minister placed before the Rajya Sabha on July 23, 2026. As of July 16, 2026, 5.64 crore cases were pending; 96,024 in the Supreme Court, 64.72 lakh in the High Courts, 4.98 crore in the district courts. In the Supreme Court alone, 10,094 cases have waited more than ten years and 26 more than thirty. The High Courts have 781 judges against a sanctioned 1,122; a vacancy of 30 per cent. The district judiciary has 7,310 posts empty. The Law Commission recommended fifty judges per million people in 1987; on working strength, the India Justice Report 2025 counts fifteen.

Behind these figures stand those who pay for them. The NCRB’s Prison Statistics for 2024 show that 73 per cent of the 5.11 lakh people in Indian jails are undertrials, presumed innocent, waiting; Dalits, Adivasis, OBCs and Muslims make up the overwhelming majority. Justice delayed is justice denied, and in India it is denied on an industrial scale, with a class address.

DELAY, A POLITICAL INSTRUMENT

Delay has also become a political instrument, and even the Supreme Court has allowed itself to be used as one. The petitions against the abrogation of Article 370 were filed in August 2019. From March, 2020 to July, 2023 they were not listed even once. The verdict came on December 11, 2023, four years and four months after Jammu and Kashmir had been dismembered, when the fait accompli was complete. Even then the court declined to rule on the Reorganisation Act, accepting the Solicitor General’s word that statehood would be restored “at the earliest”. In October 2025, the Centre asked for four more weeks to reply on statehood; the matter has not been heard since. Sonam Wangchuk sat in detention through 24 hearings; when the government withdrew the order rather than face a verdict, the Court found “nothing left to decide”.

The CPI(M) knows this pattern from the inside. In August 2019, Com Sitaram Yechury, twice turned back from the Srinagar airport, moved a habeas corpus petition for Com Mohammed Yousuf Tarigami, then 72, unwell and held without any detention order. Habeas corpus is the oldest writ in the law; it compels the state to produce a person and justify his custody. What the court issued instead was a permit. The General Secretary of a national party was allowed to go to Srinagar “for no other purpose” than meeting his colleague, warned that anything else would be a violation of the order, and directed to file a report on affidavit on return. Only then, on September 5, was Tarigami ordered to AIIMS. The petition was finally disposed of in May 2023, with the observation that Com Tarigami was “free now”. Hundreds of Kashmiri habeas petitions from that autumn were never decided on merits at all.

JAIL, NOT BAIL

Umar Khalid will complete six years in custody on September 13. Charges have not been framed yet; the trial has not begun. The Supreme Court denied him bail in January 2026 for his “central and formative role” in a conspiracy no court has examined. In May a different bench recorded “serious reservations” about that judgment and reaffirmed that “even under UAPA, bail is the rule and jail is the exception”; days later a third bench referred the conflict to a larger bench. In the meantime, Umar Khalid still remains incarcerated in Tihar, while the court debates itself.

The Bhima Koregaon prosecution is in its ninth year. Father Stan Swamy died in custody in July 2021. Surendra Gadling got bail in May 2026 after nearly eight years, only to stay in jail on a second case. Every surviving accused has now been granted bail; not one has faced trial, because charges have still not been framed, and forensic findings that the incriminating files were planted by malware have never been judicially examined. The process is the punishment, and the court’s refusal to intervene is what keeps the process alive.

THE VOTE, AND THE COURT THAT LOOKED AWAY

Nowhere has the court’s abdication mattered more than on the right to vote. The Special Intensive Revision conducted by the Election Commission of India struck 91 lakh names from West Bengal’s rolls before the assembly election, about 12 per cent of the electorate. Of some 60 lakh names placed “under adjudication”, 27.16 lakh were declared ineligible. Nearly 38 lakh appeals were filed; by August, an RTI reply shows, barely two per cent had been decided. On April 13, ten days before polling, the Supreme Court ruled that “mere pendency of appeals” did not entitle a citizen to vote. On April 24, the day after the first phase, it sent the aggrieved to the Calcutta High Court and remarked on its happiness at the voting percentage. On May 27 it upheld the SIR. In late August, when shown 31 constituencies in which deletions exceeded the winning margin, the Chief Justice asked, “Can the court direct fresh elections like this?”

The Court was not unaware. Justice Bagchi himself noted that the Election Commission had promised in the Bihar hearings that voters on the 2002 rolls need not produce documents and was “now improvising”, and asked what would happen if the margin were two per cent and 15 per cent of mapped voters could not vote. Having posed the question, the bench let the election proceed. Our Polit Bureau called the May judgment a body blow to democracy, because it makes the franchise contingent on “acceptable documents”, the NRC by another route. Twenty-seven lakh Bengalis were kept off the rolls in 2026. The third phase has since deleted 6.15 crore names across 16 states and three union territories.

THE IDEOLOGICAL DRIFT

None of this is accidental. The bench is drifting with the state, and sometimes ahead of it. In July 2025 the Bombay High Court refused the CPI(M) permission to protest against the genocide in Gaza, telling us to “be patriots”, to “look at your own country” and take up “garbage dumping, pollution, sewerage, flooding” instead. It even went on to remark that “going by the party you represent” we could not understand foreign affairs. A constitutional court treated solidarity with Palestine as unpatriotic, and the Left as suspect by definition. The court seemed unaware of the fact that it was the position espoused by Mahatma Gandhi during our anti-colonial freedom struggle, and upheld by every Indian government from Nehru onwards.

Justice Shekhar Yadav of the Allahabad High Court told a VHP gathering that the country would run “according to the wishes of the majority”; the impeachment notice against him was never acted upon and he retired in April 2026. A former Chief Justice went to the Rajya Sabha; another Supreme Court judge went to a Raj Bhavan. In November 2025, the Apex Court’s opinion on the Presidential reference undid its own April judgment fixing timelines for Governors.

The lesson is not that the court cannot move. When lakhs of students filled the streets after the NEET leak, the court on September 1 quashed the protest FIRs across the country and held that mere participation in a protest is not an offence under the penal law. That is the same court whose Chief Justice had in May likened unemployed young people to “cockroaches”. What changed between May and September was not the law. It was the movement.

COLLEGIUM, EXECUTIVE, AND THE WAY OUT

The appointment system sits at the root. The collegium gives no reasons and answers to no one. Of 593 High Court judges appointed between 2021 and 2026, an analysis in The Wire found about 80 per cent were upper caste, four per cent Dalit, two per cent Adivasi and under 14 per cent OBC; around a third of sitting Supreme Court judges are Brahmins, and one woman has been appointed in five years. Yet the government’s alternative is worse. The executive already sits on collegium recommendations and objects on political grounds, as it did in 2024 to a Kerala lawyer branded a “CPI(M) sympathiser”. Its aim, as our Polit Bureau said in December 2022, is executive control over appointments, which the Party opposes uncompromisingly. Accountability fares no better; cash was found at Justice Yashwant Varma’s residence in March 2025, an inquiry found every charge proved in May 2026, and the removal motion still awaits a vote.

The CPI(M) has long held that neither the closed collegium nor an executive-dominated commission is acceptable. What is needed is a broad-based National Judicial Commission, established by law, with representation from the judiciary, the legislature, the Bar and civil society, insulated from government control, working with published criteria and reasons, mandated to ensure that the bench reflects the social composition of the country, and empowered to inquire into complaints against judges. Com Bikash Ranjan Bhattacharyya had placed such a Bill before the Rajya Sabha in December 2022.

But no institutional design will by itself produce judges with what Justice Gupta calls “a spine”. The judiciary is part of the state, and the state today is in the hands of a corporate-communal alliance that wants courts as compliant as the ECI. Judicial independence was never a gift from above. It has always been defended by the people who have mobilised outside the courtroom. The students proved it this summer; the voters of Bengal, fighting for their names on the rolls, are proving it now. The struggle for a judiciary that answers to the Constitution rather than to the powers that be, is one that the working people will have to wage for themselves. The CPI(M) will be part and parcel of that struggle.