How far can a judge speak outside the courtroom?

In July 2018, Justice Ranjan Gogoi, months before he became the Chief Justice of India, said that democracy sometimes needs “loud judges” along with independent journalists. Eight years later, that court vote became moot.

On October 4, Justice Ujjal Bhuyan, who delivered the valedictory speech at the moot court competition at NALSAR Law University, said that the right to vote is constitutional and an integral part of the basic structure. The process of disenfranchising millions, he said, would be inherently arbitrary and violative of Articles 14 and 326; Article 326 “cannot be trifled with” and “no court can tolerate” mass disenfranchisement. Citing Section 22 of the Representation of the People Act, 1950, he emphasized the need for notice and hearing before deletion, except in the case of death.

Former Chief Justice of India BR Gavai argued that “judicial propriety” does not allow a sitting judge to comment on a sub-judicial matter. Former Delhi High Court judges SN Dhingra and RS Sodhi expressed similar concerns, with Justice Sodhi highlighting the legal framework governing voting rights.

A day after Justice Bhuyan spoke, Justice Vikram Nath, the Chief Justice of the Supreme Court, delivered a lecture in Delhi. “Impartiality and indifference are not the same thing,” he said. A judge must be impartial but need not be indifferent to the human consequences of the law, he noted. Where is the line between an engaged judge and one who has said too much?

What does Indian code require?

The starting point is the Restatement of Values ​​of Judicial Life, adopted by the plenary of the Supreme Court on 7 May 1997. Article 8 states that a judge may not enter into public debate or express opinions on political matters “or on matters pending or likely to arise for judicial decision”. Clause 1 requires conduct that maintains public confidence in the impartiality of the courts. The Restatement contains no sanctions of its own, but has been reproduced and relied upon in court decisions.

When Justice Bhuyan approached NALSAR, the litigation arising out of the West Bengal SIR remained before the Supreme Court. More than 22 lakh deleted voters appealed for restoration, the Election Commission of India told the court, and related matters were due on October 5. Justice Bhuyan neither appointed SIRs nor sat on these benches.

But did Justice Bhuyan say something the court had not already done?

Criticism here requires qualification. On 27 May 2026, a bench headed by Chief Justice Surya Kant upheld Bihar SIR in Association for Democratic Reforms v Election Commission of India. The court described the right to vote as constitutional, though neither absolute nor unregulated, and said that Articles 325 and 326 required the inclusion of eligible voters and the exclusion of ineligible persons. Rule 21A of the Electoral Registration Rules, 1960, it added, requires notice, enquiry, hearing and a reasoned decision before deletion.

Justice Bhuyan was therefore firm in declaring the vote constitutional and emphasizing a hearing before deletion. The more debatable part was his suggestion that the process of disenfranchising millions would be inherently arbitrary and that no court could tolerate it. However, the proposal was conditional and did not determine whether a particular SIR drives this outcome. The problem is how close these words came to answering the live controversy.

Must judges remain silent on matters of public importance?

Benchmarks draw a more calibrated line. The Commentary on the Bangalore Principles of Judicial Conduct recognizes judicial freedom of expression in the areas of legal education, judicial independence and judicial administration. Rule 2.4 restricts comments that could reasonably affect the proceedings before the judge or appear before the judge, while Rule 4.11 allows judges to write, lecture and teach about the law and the administration of justice.

The 2023 U.S. Supreme Court Code of Conduct allows justices to speak, write, lecture and teach, but asks them to refrain from commenting on the merits of a pending or upcoming matter. They may describe relevant problems for scientific or educational purposes. There’s a difference between explaining a problem and appearing to answer it.

Justice Antonin Scalia showed the risk in 2003 when he criticized a lower court ruling on the Pledge of Allegiance. The litigant called for his dismissal, and Scalia did not participate when the case went to the U.S. Supreme Court, although the court did not give a reason. In Britain, Lady Hale outlined the competing arguments in the ongoing Brexit court case in 2016, then paused: “The case is for our court, so I need say no more”. She later sat in Miller. Justice Ruth Bader Ginsburg crossed another line by criticizing presidential candidate Donald Trump, then calling her comments “reckless.”

Indian practice also advises not to consider every public intervention inappropriate. At NALSAR in March 2024, Justice BV Nagarathna criticized the governors who withheld assent to the Bills while related disputes were in court. Scholars Jasmin Moran and Christopher W. Schmidt acknowledge concerns about prejudice without treating the judges’ silence as the answer.

Is Judge Bhuyan exceptionally open minded?

Justice Bhuyan is an unusually visible court speaker. The conservative open-source audit found at least 25 public contracts since he joined the Supreme Court on July 14, 2023. It included institutional archives, bar events and current affairs reports, excluding courtroom notes, internal programs and events where only planned participation could be determined. At least nine addresses generated messages, seven in 2026. This number is the minimum.

In 2026, his speeches became more heated. He questioned the executive’s influence on judicial transfers, cited low conviction rates while discussing the overuse of the Unlawful Activities (Prevention) Act, criticized restrictive bail conditions, sought greater transparency in the panel’s decisions, and criticized frivolous prosecutions arising from food choices, poems, protests and slogans. Most generated headlines without comparable controversy about correctness.

Two episodes stand out. After Justice Bhuyan criticized the Supreme Court’s 2024 decision, Justice Indu Malhotra, a retired judge, termed the remarks as “reckless”. In contrast, former judge Sudhanshu Dhulia defended another speech in July on dissent and criminalization, warning that judges must exercise restraint because similar issues may come before them later. Their disagreement shows why controversy itself is a poor test.

Does his Supreme Court record match this?

Gauhati High Court Justice Bhuyan warns against treating speeches as predictors of results. In Monowara Bewa v. Union of India (2017), its Bench upheld the finding of the Foreigners Tribunal and rejected the Gaon Panchayat Secretary’s certificate as an NRC linking document. The Supreme Court later overruled this broader conclusion in Rupajan Begum v. Union of India. In Sirajul Hoque v State of Assam (2019), he also overturned a 2017 decision of his Bench where variations in surname contributed to rejection of citizenship application. Yet in Md Anuwar Hussain v Union of India (2014), Justice Bhuyan set aside the Aliens Tribunal’s order for lack of sound logic and cogent reasons, remanded the case and ordered the petitioner’s release from custody to rehear it. Its record contains strict and applicant protection elements. Extrajudicial language about citizenship, liberty, or voting cannot safely predict how a properly argued case would decide.

So are Justice Bhuyan’s critics right?

The Restatement of India uses broader language than the American Code. His propositions that voting is constitutional and erasure requires procedural safeguards largely follow existing doctrine. The sentence that “no court can tolerate” mass disenfranchisement comes close to stating a constitutional conclusion, even though it was conditional and did not decide whether SIR produces that result.

Criticism weakens when extended to claims that judges should avoid public discussion of constitutional law, civil liberties, judicial appointments, or judicial administration. Indian judges have long occupied this space and international standards recognize its value. If he were assigned a case presenting the exact problem Justice Bhuyan discussed, the Scalia episode shows why recusal might become a question.

Justice Gogoi’s ‘noisy judge’ and Justice Nath’s formulation that impartiality need not mean indifference can coexist. The relevant measures are the subject of the speech, the specificity of the conclusion and its proximity to the judgment. Judicial speech can enrich the constitutional conversation, but the lecture hall should not sound like a courtroom where a case is decided before the parties are heard.

(V. Venkatesan is Contributing Editor of the Supreme Court Observer. Views expressed are personal)