Judicial Restraint: The Limits of a Sitting Judge's Public Speech - the Bhuyan Controversy

Why in the News

Supreme Court judge Justice Ujjwal Bhuyan commented on the right to vote at the closing session of a moot court at NALSAR Law University (Hyderabad) on 4 October 2026, to which retired judges including former Chief Justice B.R. Gavai objected. This has brought back into discussion the questions of judicial restraint, judicial propriety and the limits of public statements on pending cases. (The Hindu, 26 October 2026)

Key Facts

• The 4 October comment: Justice Bhuyan said that the right to vote is constitutional and part of the basic structure of the Constitution; a process that deprives lakhs of people of voting would be inherently arbitrary and a violation of Articles 14 and 326. In his view Article 326 "cannot be tinkered with" and large-scale disenfranchisement "cannot be condoned by any court". Citing section 22 of the Representation of the People Act, 1950, he stressed notice and hearing before deletion of a name for any reason other than death.
• Context: at that time the dispute related to the Special Intensive Revision (SIR) of electoral rolls in West Bengal was pending in the Supreme Court; the Election Commission had told the court that more than 22 lakh removed electors had appealed for restoration, and the related cases were listed for hearing on 5 October. Justice Bhuyan did not name the SIR and he was not on those benches.
• Criticism: former Chief Justice Gavai said that "judicial propriety" does not permit a sitting judge to comment on a sub judice matter. Former Delhi High Court judges S.N. Dhingra and R.S. Sodhi also objected; Justice Sodhi stressed the statutory framework of the right to vote.
• 5 October: the Supreme Court's seniormost judge Justice Vikram Nath said in a lecture in Delhi: "impartiality and neutrality are not the same". In his view a judge should be impartial, but not insensitive to the human consequences of law.
• The 27 May 2026 decision: a bench led by Chief Justice Surya Kant upheld the Bihar SIR in Association for Democratic Reforms (ADR) v Election Commission; it described the right to vote as constitutional, though not absolute or unregulated; Articles 325-326 seek the inclusion of eligible electors and the exclusion of ineligible persons; Rule 21A of the Registration of Electors Rules, 1960 demands notice, inquiry, hearing and a reasoned decision before deletion of a name.
• Bhuyan's public presence: an open-source audit (quoted in the article) found at least 25 of his public events recorded since 14 July 2023; at least nine speeches made the news, of which seven are from 2026. In 2026 he raised subjects such as executive influence in judicial transfers, the low conviction rate in the over-use of the UAPA, harsh bail conditions, the transparency of collegium decisions, and trivial prosecutions linked to food preference, poetry, dissent and slogans. Retired Justice Indu Malhotra called his criticism of the 2024 Delhi Metro arbitration award "imprudent", while former Justice Sudhanshu Dhulia defended another of his speeches while advising restraint.

The Standards of Judicial Conduct

• The Indian standard: the 'Restatement of Values of Judicial Life', adopted by a full court of the Supreme Court on 7 May 1997. Under Clause 8 a judge should not enter public debate or express views on political matters or matters that are pending or likely to arise for judicial determination; Clause 1 demands conduct that sustains public confidence in impartiality. It carries no penal provision of its own, but it has been referred to in judicial decisions.
• Comparative standards: the commentary to the Bangalore Principles of Judicial Conduct recognises judges' freedom of expression on legal education, judicial independence and the administration of justice: Principle 2.4 bars comment on matters that may come before them, while Principle 4.11 permits writing, lecturing and teaching on law and the administration of justice. The US Supreme Court's 2023 code of conduct permits speaking, writing and teaching, but asks that comment on the merits of pending or impending cases be avoided; issues may be described for academic purposes.
• Cautionary examples: in 2003 US Justice Antonin Scalia criticised a lower court's decision related to the pledge of allegiance, on which demands arose for his recusal, and he did not take part when the case reached the Supreme Court. In Britain, Lady Hale said in 2016, after setting out the arguments in the pending Brexit case, that "the case is bound to come to our court, so I will say no more", and she later sat on the Miller bench. Justice Ruth Bader Ginsburg crossed another line by criticising presidential candidate Donald Trump and later called her comments "inappropriate".
• Indian practice: in July 2018 Justice Ranjan Gogoi (a few months before becoming Chief Justice) had said that a democracy sometimes needs "noisy judges". In March 2024 Justice B.V. Nagarathna criticised at NALSAR those governors who had withheld assent to bills, while the related dispute was before the courts.

Analysis: The Balance of Expression and Impartiality

The core of the tension: a judge's freedom of expression and constitutional teaching role versus public confidence in judicial impartiality. According to The Hindu's analysis, more decisive than "what was said" is the context in which it was said: the proximity to the pending SIR dispute itself became the basis of the objection, although Bhuyan's comments were largely consistent with established principle (voting is a constitutional right; a hearing before deletion). The sentence "no court can condone it" came closest to a constitutional conclusion, but it was conditional and did not decide whether any particular SIR produces such an outcome.

Code versus practice: the Restatement is a moral code of conduct, not a penal one; enforcement depends on self-discipline and peer review. In Indian practice sitting judges have taken a place in public discussion on constitutional law, civil liberties, appointments and the administration of justice, and international standards also recognise its value.

Speeches do not predict decisions: both edges are visible in Justice Bhuyan's record at the Gauhati High Court. In Monowara Bewa (2017) his bench upheld a foreigners tribunal's conclusion and did not accept a village panchayat secretary's certificate as an NRC linkage document (the Supreme Court reversed the broader conclusion in Rupajan Begum); in Sirajul Hoque (2019) the Supreme Court overturned a 2017 judgment of his in which a difference in a family name had become the basis for rejecting a citizenship claim; while in Md Anuwar Hussain (2014) he set aside a non-reasoned order, released the petitioner from custody and gave the path of a fresh hearing. In other words, speech outside the courtroom does not predict the final outcome of a case.

The yardstick: the subject of the speech, the specificity of the conclusion and the proximity to adjudication: these three measures are decisive. A lecture hall should not become a courtroom, but judicial speech can also enrich constitutional conversation.

Mains Practice Question

How should the concept of judicial restraint be balanced with judges' freedom of expression? Discuss in the light of Indian and comparative standards. (GS-II: Judiciary and Governance; 250 words)

Answer Outline

Introduction: Define judicial restraint as the balance between a judge's constitutional teaching role and public trust in impartiality. Keep a public statement separate from the judicial finding in a case.

Main Body: Mention the limit in clause 8 of the Indian Restatement 1997 on comment on matters pending or likely to come up for judicial decision, and the public confidence of clause 1. In the Bangalore Principles, keep the difference between the bar on commenting on a matter likely to come before oneself and the permission for legal teaching. Compare with the similar balance in the American code of conduct. In the Bhuyan controversy, examine the content of the speech, the specificity of its conclusion and its closeness to a pending trial; do not infer a final decision from a speech.

Conclusion: Restraint does not mean complete silence on the administration of justice. Academic dialogue should continue, but a lecture should not prejudge the merits of a pending case, and trust in impartiality should be protected.

From the Examination Point of View

Prelims: Articles 14/325/326, section 22 of the Representation of the People Act 1950, Rule 21A of the Registration of Electors Rules 1960, Clause 8 of the 1997 Restatement. Mains (GS-II): judicial conduct, the sub judice limit, the credibility of the judiciary, comparative standards.