Judicial Restraint and Judges’ Freedom of Expression

27 Oct 2026

Tags: Polity & Constitution   Executive & Judiciary   Regulatory entities

Source: The Hindu

Context: Justice Ujjal Bhuyan’s remarks on voter deletions and mass disenfranchisement have revived the debate over judicial propriety, particularly whether sitting judges should comment publicly on issues pending before courts.

• The central question is how to balance judicial independence, freedom of expression and impartiality without preventing judges from engaging with important constitutional issues.

Justice Ujjal Bhuyan’s Remarks and the Controversy

• Voting rights: Speaking at NALSAR University of Law on October 4, Justice Bhuyan stated that the right to vote is constitutional and integral to the basic structure of the Constitution.
• Mass disenfranchisement: He argued that a process disenfranchising millions would be inherently arbitrary and violate Articles 14 and 326; he also stressed that no court could condone mass disenfranchisement.
• Procedural safeguards: Referring to Section 22 of the Representation of the People Act, 1950, he emphasised notice and a hearing before deleting a voter's name, except in the case of death.
• Criticism: Former CJI B.R. Gavai and former High Court judges questioned whether commenting on a sub judice matter—the subject of ongoing litigation—violates judicial propriety.
• Countervailing view: Justice Vikram Nath observed that impartiality does not require indifference to the human consequences of law; judges must remain impartial without becoming insensitive to injustice.

What Does the Code of Judicial Conduct Require?

• Restatement of Values of Judicial Life, 1997: Adopted by the Supreme Court's Full Court on May 7, 1997, it provides ethical standards for judicial conduct.
• Clause 1: Requires judges to conduct themselves in a manner that sustains public confidence in judicial impartiality.
• Clause 8: States that judges should neither enter public debate nor express views on political matters or issues pending, or likely to arise, for judicial determination.
• Legal status: The Restatement does not prescribe independent sanctions but has been reproduced and relied upon in judicial decisions.
• Sub judice context: When Justice Bhuyan spoke, litigation concerning the Special Intensive Revision (SIR) of electoral rolls in West Bengal remained pending before the Supreme Court. The Election Commission of India had informed the Court that more than 22 lakh deleted voters had appealed for restoration, with related proceedings scheduled for October 5.
• Important distinction: Justice Bhuyan did not specifically name the SIR exercise and was not sitting on the relevant judicial Benches. The controversy concerns the proximity of his remarks to ongoing litigation.

Were His Remarks Consistent with Existing Judicial Decisions?

• Supreme Court ruling: In Association for Democratic Reforms v. Election Commission of India (May 27, 2026), a Bench headed by CJI Surya Kant upheld the Bihar SIR.
• Nature of voting rights: The Court described the right to vote as a constitutional right, though neither absolute nor unregulated.
• Electoral-roll safeguards: Articles 325 and 326 require the inclusion of eligible electors and exclusion of ineligible persons. Rule 21A of the Registration of Electors Rules, 1960, provides for notice, inquiry, hearing and reasoned determination before deletion.
• Assessment of Justice Bhuyan's remarks: His emphasis on voting rights and procedural safeguards was consistent with established judicial principles. However, his assertion that no court could condone mass disenfranchisement came closer to expressing a constitutional conclusion.
• Central distinction: His statement was conditional and did not determine whether a particular SIR exercise resulted in mass disenfranchisement. The issue is whether his language appeared to prejudge a live controversy.

Can Judges Comment on Matters of Public Importance?

• Bangalore Principles of Judicial Conduct: Their commentary recognises judicial freedom of expression on matters such as legal education, judicial independence and court administration.
• Principle 2.4: Restrains comments that could reasonably affect proceedings before, or capable of coming before, a judge.
• Principle 4.11: Permits judges to write, lecture and teach on law and the administration of justice.
• United States: The U.S. Supreme Court's 2023 Code of Conduct permits Justices to speak, write, lecture and teach, while advising them against commenting on the merits of pending or impending matters. Educational discussion of legal issues remains permissible.
• United Kingdom: In 2016, Lady Hale outlined competing arguments in pending Brexit litigation but refrained from saying more because the case was destined for the Supreme Court; she subsequently sat in the case.
• Judicial indiscretion: In 2003, U.S. Supreme Court Justice Antonin Scalia criticised a lower-court ruling on the Pledge of Allegiance. A litigant sought his recusal, and Scalia did not participate when the case reached the Supreme Court, although the Court gave no reason for his non-participation.
• Lessons from judicial practice: Justice Ruth Bader Ginsburg later described her criticism of presidential candidate Donald Trump as “ill-advised”, illustrating the reputational risks of judicial commentary on politically sensitive matters.

Judicial Engagement in India: Other Examples

• Justice B.V. Nagarathna: In March 2024, she criticised Governors for withholding assent to Bills while related disputes were pending before courts.
• Justice Ujjal Bhuyan's 2026 speeches: He questioned executive influence in judicial transfers, criticised restrictive bail conditions and frivolous prosecutions, called for greater collegium transparency, and raised concerns about the use of the Unlawful Activities (Prevention) Act (UAPA).
• Controversial interventions: His criticism of the Supreme Court's 2024 Delhi Metro arbitration ruling was described as an “indiscretion” by retired Justice Indu Malhotra. Former Justice Sudhanshu Dhulia defended another speech on dissent and criminalisation while emphasising the need for restraint.
• Key lesson: Public criticism of a judge's speech does not, by itself, establish impropriety. The subject, specificity and proximity to adjudication must be considered.

Justice Bhuyan's Judicial Record: Why Speeches Cannot Predict Judgments

• Citizenship cases: In Monowara Bewa v. Union of India (2017), his Bench upheld a Foreigners Tribunal finding and rejected a Gaon Panchayat Secretary's certificate as an NRC linkage document; the Supreme Court subsequently set aside the broader conclusion in Rupajan Begum v. Union of India.
• Name discrepancies: In Sirajul Hoque v. State of Assam (2019), the Supreme Court reversed a 2017 decision of his Bench in which variations in a family name had contributed to the rejection of a citizenship claim.
• Protection of liberty: In Md Anuwar Hussain v. Union of India (2014), Justice Bhuyan set aside a Foreigners Tribunal order for inadequate reasoning, remanded the case and ordered the petitioner's release from detention to argue the case afresh.
• Significance: His record contains both strict and claimant-protective approaches. Public speeches on citizenship, liberty or voting rights cannot reliably predict how he would decide a properly argued case.

Constitutional Provisions Relevant to Judicial Restraint

Provision	Significance
Article 14	Equality before the law and equal protection of laws.
Article 19(1)(a)	Freedom of speech and expression; judicial speech must be assessed alongside the demands of impartiality and propriety.
Article 21	Protection of life and personal liberty, relevant to judicial scrutiny of detention and due process.
Article 326	Provides for elections to the Lok Sabha and State Legislative Assemblies on the basis of adult suffrage, subject to constitutional and statutory qualifications.
Article 145(4)	Requires judgments of the Supreme Court to be delivered in open court and prohibits the participation of a judge who has not heard the case.

 

Way Forward

• Clearer ethical standards: Develop practical guidance distinguishing permissible academic discussion from comments that could reasonably appear to prejudge pending cases.
• Protect judicial independence: Prevent political pressure from discouraging judges from discussing constitutional values, judicial administration and civil liberties.
• Avoid prejudgment: Judges should avoid categorical conclusions on disputed facts or the likely outcome of identifiable pending cases.
• Context-sensitive assessment: Evaluate judicial speech according to its subject, specificity, audience and proximity to adjudication rather than treating every public intervention as misconduct.
• Institutional consistency: Strengthen judicial ethics through transparent standards and peer accountability while preserving legitimate freedom of expression.

Conclusion: Judicial restraint does not require judicial silence. Judges can contribute meaningfully to constitutional discourse while maintaining the impartiality expected of their office. The appropriate boundary lies between explaining constitutional principles and appearing to prejudge a pending dispute. As Justice Vikram Nath's observation suggests, impartiality need not mean indifference—but judicial engagement must remain consistent with public confidence in the fairness of courts.