Where should judicial restraint begin?

Why in the News

Supreme Court judge Justice Ujjal Bhuyan‘s public remarks on voter deletions have revived debate on how far a sitting judge may comment on matters pending before the courts. His voting rights points follow existing rulings, but his line that “no court can condone” mass disenfranchisement comes close to stating a conclusion on a live dispute.

What does India’s code of judicial conduct require?

1. Restatement of Values of Judicial Life: The Full Court of the Supreme Court adopted this code on May 7, 1997, as a professional ethics charter for judges.
2. Clause 8: A judge shall neither enter public debate nor express views on political matters “or on matters that are pending or are likely to arise for judicial determination”.
3. Clause 1 and its force: Clause 1 requires conduct that sustains public faith in judicial impartiality. The Restatement carries no penalty, but courts have relied on it in decisions.
4. The takeaway: The code’s wide language makes any remark near a pending case a propriety question, even without a penalty.

What did Justice Bhuyan say, and who objected?

1. Right to vote: In an address on October 4, he called the right to vote constitutional and part of the basic structure (the Constitution’s unamendable core).
2. Arbitrary exclusion: He said a process disenfranchising millions would be intrinsically arbitrary and violate Articles 14 and 326. He added that the latter “cannot be tinkered with”.
3. Hearing before deletion: Citing Section 22 of the Representation of the People Act, 1950, he stressed notice and a hearing before any deletion except for death.
4. Pending litigation: West Bengal SIR (Special Intensive Revision of electoral rolls) cases were pending, with over 22 lakh deleted voters seeking restoration. He neither named the SIR nor heard those cases.
5. Objections: Former Chief Justice of India B.R. Gavai said “judicial propriety” bars a sitting judge from commenting on a pending, or sub judice, matter. Two former Delhi High Court judges agreed.

Did the remarks go beyond settled law?

1. ADR v ECI ruling: In Association for Democratic Reforms v Election Commission of India (May 27, 2026), a Bench headed by Chief Justice Surya Kant upheld the Bihar SIR.
2. Constitutional right: The Court called the right to vote constitutional, though neither absolute nor unregulated. It held that Articles 325 and 326 require including eligible electors and excluding ineligible persons.
3. Rule 21A: The Court said Rule 21A of the Registration of Electors Rules, 1960 requires notice, inquiry, hearing and a reasoned decision before deletion.
4. Debatable line: His “no court can condone” line was conditional, so it decided nothing about any particular SIR. The open question is how close it came to a live dispute.

How do other standards and past episodes draw the line?

1. Bangalore Principles of Judicial Conduct: Principle 2.4 restrains comment that might reasonably affect a proceeding before the judge. Principle 4.11 allows judges to write, lecture and teach on law.
2. U.S. Supreme Court 2023 Code: Justices may speak and teach but not comment on a pending matter’s merits. The line falls between explaining an issue and appearing to answer it.
3. Foreign precedents: Justice Antonin Scalia criticised a 2003 Pledge of Allegiance ruling, then took no part in the case. Lady Hale outlined Brexit arguments in 2016 and later sat in the Miller case.
4. Indian precedent: In March 2024, Justice B.V. Nagarathna criticised Governors who withhold assent to Bills. Related disputes were then pending.
5. Citizenship rulings record: His Gauhati High Court citizenship rulings include a strict one, Monowara Bewa (2017), and a claimant-protective one, Anuwar Hussain (2014).

Challenges

1. Broad wording: The Restatement is worded more widely than the U.S. code, so no clear test marks the line.
2. Recusal risk: A judge who has spoken on a precise issue may face recusal demands if that case reaches his Bench.
3. Controversy as a test: Public criticism alone does not prove impropriety, since retired judges disagree on similar speeches.

Way Forward

1. Three-part test: Judge extrajudicial speech (speech off the Bench) by its subject, the specificity of its conclusion and its proximity to adjudication.
2. Explain, not decide: Judges should describe a pending matter’s issues without saying how to resolve them.
3. Recusal guidance: The Supreme Court should state when a judge’s prior public remarks require stepping aside from a case.

Conclusion

Judges can enrich public constitutional debate, provided they stop short of deciding a case before the parties are heard. Recusal becomes the live question if an SIR case on the precise issue reaches Justice Bhuyan’s Bench.

Matching Previous Year Question

“[2017] Right to vote and to be elected in India is a (a) Fundamental Right (b) Natural Right (c) Constitutional Right (d) Legal Right ANSWER: (c)”