How far can a sitting judge speak outside the courtroom?

The striking point was Justice Ujjal Bhuyan’s warning that mass voter deletion could violate constitutional guarantees. He said the right to vote is integral to India’s basic structure, and that Articles 14 and 326 protect against arbitrary disenfranchisement. He also said Article 326 cannot be tinkered with and no court can condone mass disenfranchisement.

Bhuyan referred to Section 22 of the Representation of the People Act, 1950. He stressed that voters should receive notice and a hearing before deletion, except when the voter has died. His comments came while West Bengal’s Special Intensive Revision, or SIR, litigation was pending before the Supreme Court.

Former Chief Justice B.R. Gavai said judicial propriety barred a sitting judge from commenting on a sub judice matter. Former judges S.N. Dhingra and R.S. Sodhi raised similar concerns. Their objection was not necessarily to the legal principles themselves, but to a judge appearing to influence or prejudge a live case.

The surprising risk is that even a legally accurate comment may be improper if it sounds like a decision before the hearing is complete. “Sub judice” describes a matter that is pending before a court. Judicial propriety asks judges not to publicly signal how they will resolve such a dispute.

The concern is especially strong when the speaker is a sitting judge. A public statement can appear to commit that judge, fellow judges, or the institution to a particular result. It may also affect parties, public debate, or the perceived fairness of the hearing. The Restatement of Values of Judicial Life bars comments on matters pending or likely to arise for judicial determination.

The article presents a boundary rather than an absolute silence rule. Justice Bhuyan did not name the SIR or sit on its Benches, and much of what he said matched an earlier Supreme Court ruling. Still, his statement that mass disenfranchisement would be intrinsically arbitrary raised questions about how close it came to answering the live controversy.

More than 22 lakh voters were reported to have appealed for restoration after being deleted from the electoral rolls in the West Bengal SIR process. The Election Commission of India gave that figure to the Supreme Court while related litigation remained pending.

The number matters because it shows the scale of the dispute. This was not presented as an isolated correction involving a few names. It involved millions of people seeking to return to the electoral rolls, making questions about notice, hearings, and lawful deletion especially consequential.

The article does not state how many appeals were ultimately accepted or rejected. It records that the related matters were due before the Supreme Court on October 5, after Justice Bhuyan’s October 4 address. The scale helped explain why his remarks about mass disenfranchisement and procedural safeguards became contentious.

The immediate danger is an appearance problem. If a judge seems to have already decided a live controversy, parties may question whether the hearing can be impartial. They could seek recusal, as happened when a litigant asked Justice Antonin Scalia to step aside after his public criticism of a lower-court ruling.

The key mechanism is public confidence. Judicial decisions depend not only on the result, but also on trust that the judge considered the arguments with an open mind. A comment that appears to answer the case can make losing parties suspect the process was predetermined. It can also pressure other judges or intensify public controversy around the proceeding.

The article does not say that Justice Bhuyan’s comments caused recusal or invalidated any case. It presents the risk as a boundary question. Judges may explain law and its human consequences, but should avoid appearing to decide a pending dispute. Maintaining that distinction protects both individual cases and the judiciary’s credibility.

India’s main written guide is the Restatement of Values of Judicial Life, adopted by the Supreme Court’s Full Court on May 7, 1997. It sets an ethical boundary around judges’ public speech. The goal is to preserve independence while ensuring that judges appear neutral when disputes reach court.

Clause 8 says a judge must neither enter public debate nor express views on political matters, or on matters pending or likely to arise for judicial determination. Clause 1 requires conduct that sustains public faith in judicial impartiality. The Restatement has no sanction of its own, but courts have reproduced and relied on it in decisions.

The rule does not necessarily require total silence on law. The article notes that comparative standards permit teaching and discussion of legal issues. The difficult question is whether a comment explains a principle or appears to answer a live controversy. Justice Bhuyan’s remarks were debated precisely because they combined established doctrine with a stronger statement about mass disenfranchisement.

The Bangalore Principles recognise that judges can contribute publicly to legal education, judicial independence, and court administration. Principle 4.11 allows writing, lecturing, and teaching about law and the administration of justice. Principle 2.4 limits comments that might reasonably affect a proceeding before the judge or one capable of coming before the judge.

The U.S. Supreme Court’s 2023 Code of Conduct follows a similar distinction. Justices may speak, write, lecture, and teach, but should refrain from commenting on the merits of a pending or impending matter. For scholarly or educational purposes, they may describe the issues involved. The permitted activity explains; the prohibited activity appears to resolve.

The article gives examples of the boundary. Lady Hale outlined competing arguments in pending Brexit litigation, then stopped because the case would reach her court. Justice Scalia did not participate after publicly criticising a lower-court ruling. These examples show why tone, timing, and closeness to the live dispute matter.

The right to vote is described as constitutional because the Supreme Court said it is protected within India’s constitutional framework, though it is neither absolute nor unregulated. Justice Bhuyan also called it integral to the basic structure. That status makes arbitrary mass disenfranchisement constitutionally serious, rather than merely an administrative error.

Articles 325 and 326 shape both sides of the electoral roll. The May 27, 2026 judgment said they require eligible electors to be included and ineligible persons to be excluded. Rule 21A of the Registration of Electors Rules, 1960, requires notice, inquiry, a hearing, and a reasoned determination before deletion. Death was identified as the exception to the hearing requirement under the discussion of Section 22.

This framework does not freeze electoral rolls permanently. It permits correction and exclusion when legally justified. But it demands procedure and reasons. The continuing dispute is whether a particular SIR follows those safeguards or produces unconstitutional mass disenfranchisement.