Judicial Independence and the Limits of Public Speech by Sitting Judges

Context

The public remarks of Supreme Court Justice Ujjal Bhuyan on voting rights have reignited debate over how far sitting judges can express their views on constitutional issues while related disputes remain pending before the courts. The controversy highlights the need to balance judicial independence, freedom of expression and the obligation to maintain public confidence in the impartiality of the judiciary.

Judicial Speech: Between Constitutional Advocacy and Restraint

Background of the Debate

In 2018, Justice Ranjan Gogoi argued that democracy sometimes requires outspoken judges and independent journalists. However, public statements by sitting judges have increasingly raised questions about the boundary between constitutional engagement and judicial propriety.

On October 4, Justice Ujjal Bhuyan, speaking at NALSAR University of Law, emphasised that:

• The right to vote is a constitutional right and an important element of the constitutional framework.
• Large-scale exclusion of voters could raise serious concerns regarding arbitrariness and constitutional equality.
• Article 326, which provides for adult suffrage, must be protected.
• Section 22 of the Representation of the People Act, 1950, underscores the importance of procedural safeguards, including notice and an opportunity to be heard before electoral roll deletions, subject to applicable legal provisions.

Former Chief Justice of India B.R. Gavai and some retired High Court judges questioned whether such remarks were appropriate while related litigation remained pending. Their concerns centred on the possibility that public statements could be perceived as prejudging issues awaiting judicial determination.

Justice Vikram Nath offered a complementary perspective, observing that impartiality does not require indifference to the human consequences of legal decisions.

Ethical Framework Governing Judges’ Public Statements

The principal domestic framework governing judicial conduct is the Restatement of Values of Judicial Life, adopted by the Supreme Court’s Full Court in 1997.

• Clause 1: Requires judges to conduct themselves in ways that sustain public confidence in judicial impartiality.
• Clause 8: Discourages public debate on political matters and issues pending, or likely to arise, for judicial determination.

Although the Restatement does not prescribe independent sanctions, it has been referred to in judicial decisions and serves as an important ethical benchmark.

The controversy surrounding Justice Bhuyan arose when litigation concerning the Special Intensive Revision (SIR) of electoral rolls in West Bengal was still before the Supreme Court. The Election Commission of India informed the Court that more than 22 lakh deleted voters had appealed for restoration.

However, Justice Bhuyan did not explicitly identify the SIR process in his address, nor was he sitting on the Benches hearing the relevant proceedings. The central question is therefore whether his general constitutional observations came too close to commenting on a live dispute.

Constitutional Status of the Right to Vote

The Supreme Court’s decision in Association for Democratic Reforms v. Election Commission of India (2026), which upheld the Bihar SIR, provides important context for evaluating the remarks.

The Court clarified that:

• The right to vote is constitutional, but it is neither absolute nor free from regulation.
• Articles 325 and 326 require electoral rolls to include eligible voters while excluding those who do not satisfy the applicable legal requirements.
• Rule 21A of the Registration of Electors Rules, 1960, provides for procedural safeguards, including notice, inquiry, hearing and a reasoned decision before deletion.

Justice Bhuyan’s emphasis on the constitutional significance of voting and the need for due process was therefore broadly consistent with established legal principles.

The more contentious aspect was his suggestion that a process disenfranchising millions would be inherently arbitrary and that no court could condone it. While this statement expressed a conditional constitutional concern, its proximity to ongoing litigation makes its appropriateness open to debate.

The distinction is between articulating a general constitutional principle and appearing to determine in advance whether a particular administrative exercise violates that principle.

International Standards on Judicial Expression

Judicial ethics internationally recognise that judges need not remain entirely silent on matters concerning the administration of justice. However, such engagement must not undermine the fairness of pending proceedings.

• Bangalore Principles of Judicial Conduct: Principle 2.4 cautions judges against comments that could affect proceedings before them or that may come before them. Principle 4.11 recognises their ability to write, lecture and teach on law and the administration of justice.
• United States: The Supreme Court’s 2023 Code of Conduct permits judicial participation in public discussions, academic activities and legal education while discouraging comments on the merits of pending or impending cases.
• United Kingdom: In 2016, Lady Hale outlined competing arguments concerning Brexit litigation before stopping her remarks because the matter was expected to reach the court. Her conduct illustrated how judges can participate in public discussion while preserving restraint.
• Judicial recusal: In the United States, Justice Antonin Scalia’s criticism of a lower-court ruling in 2003 led to a recusal request when the issue reached the Supreme Court. The episode illustrates how public comments can raise questions about a judge’s subsequent participation in a case.

India’s own experience also demonstrates that judicial engagement with public issues is not automatically improper. Justice B.V. Nagarathna, for example, criticised delays by Governors in granting assent to Bills during a 2024 lecture, even as related constitutional questions were being litigated.

These examples suggest that the relevant test should be the nature and specificity of the remarks, rather than the mere fact that a judge has spoken publicly.

Justice Bhuyan’s Public Engagement and Judicial Record

Since joining the Supreme Court in July 2023, Justice Bhuyan has participated in numerous public-facing engagements. An open-source review identified at least 25 such engagements, including at least nine addresses that generated news coverage.

His public interventions have addressed several institutional and constitutional concerns, including:

• Executive influence in judicial transfers and the need for greater transparency in collegium decisions.
• The misuse of criminal laws, restrictive bail conditions and low conviction rates.
• Prosecutions arising from food choices, poems, protests and slogans.
• Concerns about the criminalisation of dissent and the protection of civil liberties.

Some of these interventions attracted criticism, while others prompted support from former judges. This disagreement indicates that the frequency of public appearances or the controversy generated by a speech cannot, by itself, establish judicial impropriety.

His High Court record also contains differing strands of judicial reasoning. In citizenship cases, some decisions of his Benches were subsequently reversed by the Supreme Court, while another ruling set aside a Foreigners Tribunal order for insufficient reasoning and directed the release of a petitioner from detention to pursue the case afresh.

Such decisions demonstrate why a judge’s public statements or earlier judgments should not be treated as conclusive evidence of how that judge would decide a future case. Judicial conclusions must follow the facts, applicable law and arguments presented in each proceeding.

Way Forward

• Develop clearer guidance: Judicial institutions should clarify the boundaries of public engagement, particularly when speeches concern matters that are pending or reasonably likely to reach the courts.
• Distinguish principle from adjudication: Judges should be able to explain constitutional principles without expressing definitive conclusions on disputed facts or the legality of a specific administrative action.
• Strengthen judicial ethics: Existing guidelines should be applied consistently, with attention to the subject, wording, context and timing of public statements.
• Preserve academic engagement: Lectures, legal education and discussions about judicial administration should remain open to judges, provided they do not compromise impartiality.
• Consider recusal where necessary: If a judge’s public remarks create a reasonable concern about impartiality in a subsequent case, recusal may need to be considered in accordance with applicable judicial standards.

Conclusion

The controversy surrounding Justice Ujjal Bhuyan reflects a broader constitutional challenge: ensuring that judicial restraint does not become enforced silence, while public engagement does not undermine the fairness of adjudication. Justice Ranjan Gogoi’s call for outspoken judges and Justice Vikram Nath’s distinction between impartiality and indifference can coexist within a principled framework. Judges should be able to contribute to constitutional debate, but their public statements must not create the impression that a case has been decided before all parties have been heard.

Source : The Hindu