India's Top Jurist Harish Salve Calls For ‘Reset’ In Judiciary, Flags Delays, Appointments And Accountability At Ram Jethmalani Memorial Lecture

New Delhi: Senior Supreme Court advocate and former Solicitor General of India Harish Salve used the Ram Jethmalani Memorial Lecture to make a forceful case for a reset of India’s judicial system. He stressed that institutional independence cannot simply be guaranteed by constitutional provisions but must ultimately come from the character, integrity and conduct of those who occupy public office.

Paying tribute to the late legal giant Ram Jethmalani, Harish Salve emphasised that lawyers of his generation had looked up to Jethmalani, Nani Palkhivala, MC Setalvad, Fali Nariman and others not merely to learn law but also to understand the “values of life”. He called Jethmalani a figure whose influence extended beyond the courtroom, shaping the legal, political and social thinking of his era.

During his address, India's top jurist Harish Salve took the moment to give a candid assessment of the judiciary, its functioning and the pressures facing institutions in contemporary India. He suggested that public faith in justice can be destroyed when cases take years to conclude and when institutions fail to showcase accountability, transparency and independence.

“All institutions need reset from time to time. After the emergency, parliament had a reset. Our political system had a reset. After the emergency, the Supreme Court of India had a reset. It was post-emergency, which was perhaps one of the best eras of the Supreme Court, what I call the Krishnanization of Indian jurisprudence……So, from time to time, institutions have to refresh themselves. And I think the time is right for a reset,” he said.

‘Justice Must Be Done, But Also Seen To Be Done’

Recalling Jethmalani’s extraordinary courtroom abilities, the senior Supreme Court advocate narrated several anecdotes to illustrate his command of law and advocacy. During the famous Jain Hawala case, Jethmalani explained the law of hearsay by using the example of a person claiming to have seen an elephant in a park. Salve explained that such a statement was evidence only that the person claimed to have seen an elephant, rather than proof of the elephant’s existence.

Harish Salve also recalled Jethmalani’s masterful explanation of criminal jurisprudence while arguing whether time spent on bail could count for preventive detention purposes. He said that on another occasion Jethmalani demonstrated his trial skills by telling a lawyer who had mocked him that his witness would be in tears within 2 hours and, according to Salve, exactly 120 minutes later the witness was crying.

However, Jethmalani’s legacy, for Harish Salve, also lay in his willingness to stand up to institutions. He recalled when Jethmalani opposed the Emergency and continued his fight from abroad after leaving India.

“Justice should not be done, but should be seen to be done,” Salve said, stressing that the principle has implications not only for judicial decisions but also for the credibility of the entire justice system.

He questioned how justice could truly be considered to have been delivered when a case is heard after 8 years, warning that public confidence takes a lifetime to build but can be destroyed in a moment.

Here's Harish Salve's quote:

“Justice should not be done, but should be seen to be done. It has two parts: justice should be done. How much justice do we do where a case is heard after eight years? Again, being seen to be done. Are we at all doing justice? For public confidence and faith in the judiciary, even if a few cases lose their way, it destroys public confidence.”

“Trust and confidence, as we all know in our lives, take a lifetime to build and a moment to destroy. And all those who are in a position where public faith and public trust depend on their ethics, on their acumen, on their honesty, on their integrity, on their performance, should know that they carry not just the duty, which is their specific duty, but they carry a larger duty of carrying the institution on their back.”

“And the judiciary is one in which all judges, at all moments, carry the institution on their back. No nation can progress without a robust judiciary, because justice cannot be done whether it is seen or not. Justice cannot be done without a robust judiciary.”

‘Independence Is Caused And Created By Your Own Character’

Salve underlined that judicial independence cannot be reduced to constitutional protections. “What imparts independence to the judiciary is not constitutional provisions which put you beyond reach,” he said, adding that institutional independence is ultimately rooted in individual character.

He cited the French Conseil d'Etat as an example of a court whose judges are appointed by the Prime Minister and do not enjoy the same security of tenure, which has historically been regarded as powerful and independent. According to Salve, Jethmalani represented this form of institutional courage. He asked what protection Jethmalani had when he chose to stand against the system, noting that he nevertheless accepted the risks involved.

The former Solicitor General stated that India now needs to examine why public perceptions of judicial independence have changed despite the judiciary taking greater control over judicial appointments and matters concerning judicial wrongdoing.

“This is a time for a reset,” he said, noting that institutions periodically need to refresh themselves. He pointed to changes in the Indian judiciary after the Emergency, as well as judicial reforms in the United States and the United Kingdom, as examples of institutional renewal.

Here's what Harish Salve said:

“A robust judiciary is an independent. You cannot be anything other than independent and yet be robust. But what creates independence of a judiciary? And Guru spoke of this, he touched upon this, and I want to pick it up from there. What imparts independence to the judiciary is not constitutional provisions which put you beyond reach.”

“It is not constitutional provisions by which you can shield a colleague who was caught burning cash. Independence is caused and created by your own character.”

“So the independence which comes from your character. There are people who stand up to institutions. Ram Jethmalani was one of them. What protection did he have? But he stood up to the institution. He took the risk of going to jail.”

“Ram Jethmalani stood up to the institution. He managed mercifully and thankfully for all of us, he went away to America and avoided being put in jail, and he could continue his work from there of fighting against the system. What protection did he have? Why did he do it?”

Pendency, Judge Shortages And The ‘60 Million’ Case Burden

Senior SC Advocate Salve identified judicial pendency as one of the biggest challenges to the rule of law. He referred to around 60 million pending cases across the judicial system, including over 5 million in trial courts and around 93,000 in the Supreme Court, while noting that over 80% of trial-court cases are criminal matters.

He stressed that the country does not have enough judges to deal with the enormous workload, saying that the sanctioned strength is close to 22% while actual strength is around 15%, and he recalled that the Supreme Court had long ago spoken of the need for 50 judges per million people.

India's top jurist suggested that the answer cannot be for higher courts simply to absorb responsibilities that belong elsewhere. He called for a dialogue between the executive, judiciary and civil society, arguing that India has discussed these problems for years but has lost the institutional dialogue required to resolve them.

He remarked:

“The rule of law is what we are founded on, but this rule of law is a chimera, where there are 60 million pending cases, 10% of which are in the High Courts and over 5 million in the trial courts, 93,000 in the Supreme Court. These are the figures which are in public domain.”

“And what is the most worrisome is out of the cases pending in the trial courts, over 80% of the cases are criminal cases.”

“So why are we in this situation? First of all, there is just too much work. We do not have enough judges. I think the Indian sanctioned strength is close to about 22-22%, but the actual strength is 15%.”

“Way back, the Supreme Court said we must go back to 50 judges per million. Way back. We are nowhere near that. And I always mention there was a study done in America of the trial court, where they said if he has three cases before him, he'll finish one. You put eight cases before him, he'll finish two. You put 20 cases before him, he will finish one. Because he's not taking daily boxes. So we need to face on this.”

Appointments, Accountability And The Need For Restraint

The former solicitor general of India was particularly critical of the existing system of judicial appointments. He questioned the proposition that judicial independence can only be preserved if judges appoint judges, observing that India is distinctive in following such a model.

He asserted that judges be selected transparently and openly, through a public process, alongside an institution capable of enforcing judicial accountability. He also warned against excessive judicial intervention in areas belonging to the executive and subordinate judiciary, noting that the Supreme Court was intended to decide important questions of law and constitutional importance, not supervise the day-to-day functioning of lower courts.

Harish Salve also raised concerns about court-monitored investigations, saying investigative agencies can sometimes feel compelled to “deliver results” when proceedings are under judicial monitoring. He acknowledged that such intervention may have a role in exceptional cases where an influential person could compromise an investigation, but should not become routine.

Expressing his thoughts on constitutional adjudication, Salve said that the basic-structure doctrine remains important but cautioned against allowing judicial interpretation to become an excessively subjective assessment of political philosophy.

He noted:

“The judgment of the Supreme Court upholding the National Judicial Appointments Commission is so deeply flawed when it says that the executive has virtually no role to play in the appointment of judges.”

“Nowhere in the world do judges appoint judges. We have the distinction of being the only system.”

“And finally, a system by which judges are appointed transparently, openly in a public competition in the way they are done all over the world. And there is also an institution which enforces judicial accountability.”

“We have to fix our judicial system in all its dimensions.”

Social Media, Politics And The Changing Public Sphere

Top Jurist Harish Salve added that the judiciary and the legal profession must also adapt to a society transformed by social media. He underlined that public debate has increasingly become dominated by one-liners and images, sometimes at the expense of reasoned discourse.

Salve warned that judges and lawyers can be exposed to intense online criticism, with even their families becoming targets when unpopular cases are argued. He also cautioned courts against becoming instruments for settling political scores, particularly in an increasingly fractured political environment, suggesting that the legal system must not be “weaponized” for political purposes.

Harish Salve added:

“We today, unfortunately, have a more fractured, a more divided polity than we have ever had. And that's not only true for our country. So it's a global problem.”

“We today live in an overexposed, over-dramatized society. Everything is down to one liners, social media. And perhaps my bias against social media is coming out, but I don't care. Social media has, to some extent, displaced reasoned discourse.”

“How much can you capture in one line? And as they say, a picture speaks a thousand words, but sometimes those thousand words are so misleading that a picture can be very misleading.”

“How do we deal with the menace of social media? We have to be careful in dealing with the menace of social media, because justice has to be delivered openly, transparently, but also fearlessly.”

Commercial Justice And India’s Investment Ambitions

Senior Advocate Harish Salve finally linked judicial reform to India’s economic aspirations. He stated that India would need substantial investment to achieve its growth ambitions and stressed that concerns over the effectiveness of commercial dispute resolution remain a major obstacle to foreign investment.

He rejected the idea that commercial justice is merely a concern of the elite, saying that efficient resolution of commercial disputes is directly connected to economic growth, investment and ultimately improvements in the lives of ordinary citizens.

“In a recent seminar I attended, they said India will need about five trillion dollars in the next five to seven years, of which at least five to seven hundred billion will come out of private investment, foreign direct investment, foreign investment.”

“And believe me, one of the biggest hindrances in foreign investment coming into India is people's concern that you do not have an effective and robust machinery for commercial dispute resolution.”

“There was a time when you thought commercial dispute resolution is something which is the preserve of the elite, and the courts are meant for dispensing justice on a day-to-day basis to the poor people. Yes, of course they have to do that.”

“But today, if the country has to move ahead, if the country has to progress, if a lot of those poor people have to be improved, we need growth, and you cannot have growth unless you get investment, and you will not get investment unless you fix the...”

During his address, his central message was bigger than judicial reform alone, emphasising that India’s institutions must become stronger, more credible and more accountable for the country's progress. He explained that the legacy of Ram Jethmalani for him lies partly in precisely that willingness to question institutions, defend independence and confront uncomfortable truths.