The Lift Line

“Judicial speech can enrich constitutional conversation, but the lecture hall should not sound like a courtroom deciding a case before the parties are heard.” (V. Venkatesan, Text & Context, The Hindu, 26 October 2026, print)

Why This Editorial Matters for Your Exam

In the news: in a Text & Context column in The Hindu of 26 October 2026, V. Venkatesan, Contributing Editor at Supreme Court Observer, asks where judicial restraint should begin. His peg is the debate over remarks on voter deletions by Justice Ujjal Bhuyan of the Supreme Court, and the wider question of how far a sitting judge may speak in public on issues that may come before the court.

For background, Justice Bhuyan spoke at NALSAR University of Law on 4 October 2026, as reported in our 5 October roundup. The judgment that upheld the Bihar SIR is explained in our news report and in an editorial reading of it.

UPSC relevance:

  • GS Paper 2: functioning of the Judiciary; conduct and accountability of judges; electoral rolls and the right to vote.
  • GS Paper 4: probity, impartiality and codes of conduct; the ethics of speech by public office-holders.
  • Prelims: Articles 50, 121, 124(4) and 326; the Restatement of Values of Judicial Life; the in-house procedure (1999); the Bangalore Principles of Judicial Conduct; ADR v ECI (2026).
  • Essay and Interview: independence and accountability; whether a democracy needs “noisy judges”.

The Crux in 60 Words

Venkatesan does not ask whether judges may speak, but how close a speech may come to deciding a live case. Most of Justice Bhuyan’s points restated what the Court had held (“established ground”, in Venkatesan’s words); his line that “no court can condone” mass disenfranchisement came closer to a conclusion, though it was conditional. His test: the subject, the specificity of the conclusion and its proximity to adjudication.

Key Arguments at a Glance

Venkatesan argues that the propriety of a judge’s public speech turns on its subject, the specificity of its conclusion and its proximity to adjudication, not on whether judges may speak at all.

Supporting
  • Clause 8 of the Restatement of Values of Judicial Life bars a judge from expressing views in public on matters pending or likely to arise for judicial determination.
  • Justice Bhuyan’s points that voting is a constitutional right and that deletion needs notice and a hearing track what the Supreme Court itself said in ADR v ECI.
  • His line that ‘no court can condone’ mass disenfranchisement came closer to a constitutional conclusion, though it was conditional and decided nothing about any particular SIR.
  • The Bangalore Principles let judges write, lecture and teach on law (4.11) but restrain comment that might affect a proceeding (2.4); the distinction is between explaining an issue and appearing to answer it.
Counter

Former CJI B.R. Gavai and former Delhi High Court judge S.N. Dhingra hold that propriety bars a sitting judge from commenting on a sub judice matter; former judge R.S. Sodhi disputes the substance, saying the vote depends on the statute.

Way Forward

The author’s line: judges may explain an issue but should not appear to answer it, and recusal could arise if the precise issue reached the speaker. Our analysis: clearer published guidance on extra-judicial speech, on the lines of Bangalore 2.4 and 4.11.

Background and Context

What Justice Bhuyan said

Delivering the valedictory address at the 19th NALSAR-Justice B.R. Sawhney Memorial Moot Court Competition 2026, Justice Bhuyan said, as LiveLaw reported, that “the right of an Indian citizen to cast his vote is central to the basic structure doctrine itself”. He went on: “If any process results in disenfranchising millions and millions of Indian citizens making them second class citizens in their own country ... such a process is intrinsically arbitrary”, in LiveLaw’s summary a violation of Articles 14 and 326. And: “Article 326 cannot be tinkered with at all. No authority can do it; no court can condone it. No one is above the Constitution.”

On deletions, citing Lal Babu Hussain v Electoral Registration Officer, he said: “Except in the case of a dead voter, the name of a voter once enlisted in the electoral roll cannot be deleted without notice and hearing”, and pointed to Section 22 of the Representation of the People Act, 1950. He did not name the Election Commission’s Special Intensive Revision (SIR) of electoral rolls.

The reactions

As Verdictum collected them:

  • Former CJI B.R. Gavai, to PTI: “Judicial propriety would not permit him to make any comment on the matter which is sub judice before the court”.
  • Former Delhi High Court judge S.N. Dhingra: the remarks were “way beyond the limits of a sitting top court judge”.
  • Former Delhi High Court judge R.S. Sodhi, on the substance: whether a person has a vote depends on the statute.
  • Former Supreme Court judge Markandey Katju, against the critics: comment on matters of public importance is not forbidden even when they are sub judice, unless there is a real and substantial risk of prejudice; but a judge who has spoken should not sit on a bench hearing the matter.

Justice Vikram Nath, in the 2nd Prof. (Dr.) N.R. Madhava Menon Memorial Lecture (as LawBeat reported it), which Venkatesan places the day after Justice Bhuyan’s speech, offered another frame: “Impartiality and indifference are not the same thing. ... A judge must be impartial but never indifferent.”

What the Court has held, and the cases still pending

The legal background: on 27 May 2026, in Association for Democratic Reforms v Election Commission of India (2026 INSC 564), a Bench of Chief Justice of India Surya Kant and Justice Joymalya Bagchi upheld the Bihar SIR as constitutionally valid, proportionate and within the ECI’s powers under Article 324 and Section 21(3) of the RP Act, 1950. The right to vote, the Court said, is “a valuable constitutional right” but “not absolute or unregulated in the constitutional scheme”, and “The integrity of the franchise is as much dependent upon the inclusion of eligible voters as it is upon the exclusion of those who are not so entitled.” Earlier Benches more often described the right to vote as a statutory right (Jyoti Basu v Debi Ghosal, 1982; Kuldip Nayar v Union of India, 2006). The notice and hearing that Rule 21A of the Registration of Electors Rules, 1960 requires before a deletion were, as Supreme Court Observer summarised the holding, preserved “in substance” across the stages of the SIR.

When Justice Bhuyan spoke, cases arising from the SIR in West Bengal were before the Supreme Court. Of 38,31,429 appeals filed before the Tribunals, the ECI said in an affidavit LiveLaw reported in September, 22,21,118 came from voters whose names had been deleted or excluded, and 16,10,311 challenged inclusions. Venkatesan notes that Justice Bhuyan sat on none of those Benches.

The Analysis

The column’s argument

1. The Indian code. Clause 8 of the Restatement reads: “A Judge shall not enter into public debate or express his views in public on political matters or on matters that are pending or are likely to arise for judicial determination.” Clause 1 adds that justice “must not merely be done but it must also be seen to be done”. The Restatement, Venkatesan writes, “carries no sanction of its own, but has been reproduced and relied upon in judicial decisions”.

2. Was anything new said? Here “the criticism requires qualification”. On voting as a constitutional right and a hearing before deletion, Justice Bhuyan “was therefore on established ground”: the May judgment said much the same. The debatable part was the “no court can condone” line. “Yet the proposition was conditional and did not decide whether a particular SIR produces that result. The issue turns on how closely those words approached an answer to a live controversy.”

3. Comparative standards. The UNODC Commentary (September 2007) on the Bangalore Principles of Judicial Conduct draws a calibrated line. Principle 2.4: “A judge shall not knowingly, while a proceeding is before, or could come before, the judge, make any comment that might reasonably be expected to affect the outcome of such proceeding or impair the manifest fairness of the process.” Principle 4.11 lets a judge “write, lecture, teach and participate in activities concerning the law, the legal system, the administration of justice or related matters”. Venkatesan’s foreign examples, as he recounts them: the US Supreme Court’s 2023 Code of Conduct lets Justices speak and teach but asks them not to comment on the merits of a pending or impending matter; Justice Antonin Scalia, after criticising a lower-court ruling on the Pledge of Allegiance in 2003, took no part when the case reached the US Supreme Court; Lady Hale in 2016 stopped short on the pending Brexit litigation (“the case is destined for our Court, so I must say no more”); and Justice Ruth Bader Ginsburg called her comments on Donald Trump “ill-advised”. His summary: “The distinction is between explaining an issue and appearing to answer it.”

4. An outspoken judge, but a poor test. By the author’s own audit, Justice Bhuyan has had at least 25 public-facing engagements since joining the Supreme Court, and at least nine addresses drew news reports, seven of them in 2026 (“The figure is a minimum”). The topics ran from executive influence in judicial transfers and overuse of the Unlawful Activities (Prevention) Act to bail conditions and collegium transparency; “Most generated headlines without a comparable propriety controversy.” When retired Justice Indu Malhotra called one speech an “indiscretion” and former Justice Sudhanshu Dhulia defended another, their disagreement, he writes, “shows why controversy alone is a poor test”.

5. The bench record. By Venkatesan’s account, the Supreme Court set aside conclusions of Gauhati High Court Benches on which Justice Bhuyan sat, in Rupajan Begum v Union of India (5 December 2017, on a Gaon Panchayat Secretary’s certificate as an NRC linkage document) and Sirajul Hoque v State of Assam (14 February 2019), while in a 2014 case Justice Bhuyan set aside a Foreigners Tribunal order, remanded the case and ordered the petitioner’s release from detention to argue it afresh. A record with “strict and claimant-protective strands”, he argues, shows that speeches “cannot safely predict how he would decide a properly argued case”.

6. The verdict. The Restatement “uses broader language than the U.S. code”, and the “no court can condone” sentence “comes closer to stating a constitutional conclusion”. The criticism weakens if it is enlarged into a demand that judges avoid constitutional law, civil liberties, appointments or court administration. If a case on the precise issue reached Justice Bhuyan, “the Scalia episode shows why recusal could become a question.” Justice Ranjan Gogoi’s call in July 2018 for “not only independent judges and noisy journalists, but even independent journalists and sometimes noisy judges” and Justice Nath’s line, he concludes, “can coexist”.

Where the column is strong, and where it stops

  • Strong: it tests the speech against the Court’s own judgment rather than against the noise, and so separates established ground from the new claim.
  • It leaves the remedy open. A code with no sanction of its own leaves only recusal and, for misconduct, the in-house procedure. Who decides that a speech went too far is not addressed.
  • Its test lacks a threshold. “Proximity to adjudication” is a sound measure; Justice Katju’s test, a real and substantial risk of prejudice, states it more sharply.

Way forward

  1. Recusal as the safety valve. A judge who has spoken on a precise question should step aside if that question reaches the judge’s Bench, as Venkatesan and Justice Katju both suggest.
  2. Clearer guidance. The Law Commission (Report 195) recommended that the Restatement serve as the code of conduct until a statutory code is made, its breach to be treated as “misbehaviour”. A short published note on extra-judicial speech, built on Bangalore 2.4 and 4.11, would give judges a clearer line than the broad words of clause 8.

Data and Institutions Vault

Prelims-grade facts:

The code and the procedure:

  • Restatement of Values of Judicial Life: adopted by the Supreme Court’s Full Court on 7 May 1997; clause 8 bars public views on matters pending or likely to arise
  • Clause 9: “A Judge is expected to let his judgments speak for themselves. He shall not give interview to the media.”
  • Law Commission, Report 195: called the Restatement “illustrative”
  • In-house procedure (15 December 1999): from a committee of Justices S.C. Agrawal, A.S. Anand and S.P. Bharucha and two senior-most High Court Chief Justices
  • Article 50: the State shall take steps to separate the judiciary from the executive
  • Article 121: no discussion in Parliament of a judge’s conduct except on a removal motion
  • Article 124(4): removal for “proved misbehaviour or incapacity” on an address by each House

The voter-roll law:

  • Article 326: elections on the basis of adult suffrage
  • ADR v ECI, 2026 INSC 564: upheld the Bihar SIR under Article 324 and Section 21(3) of the Representation of the People Act, 1950
  • Rule 21A, Registration of Electors Rules, 1960: notice and a hearing before deletion from the roll
  • West Bengal SIR: 22,21,118 of 38,31,429 appeals were by deleted or excluded voters (ECI affidavit, September 2026)

International standards:

  • Bangalore Principles (UNODC Commentary, 2007): 2.4 restrains comment that might affect a proceeding; 4.11 lets judges write, lecture and teach on law

⚠️ Watch the trap:

  • The Restatement is an in-house code adopted by the Full Court, not a statute
  • The Law Commission’s “misbehaviour” link is a recommendation, not law
  • Justice Bhuyan’s remarks were an extra-judicial speech, not a ruling; he did not name the SIR
  • ADR v ECI upheld the Bihar SIR; it did not call the right to vote absolute

The Debate

The case that the speech crossed a line The case that it did not
Clause 8 bars views on pending or likely matters, and SIR cases were pending He named no SIR, sat on none of the Benches, and spoke conditionally
“No court can condone it” reads like a conclusion on a live controversy Voting as a constitutional right and a hearing before deletion are what the Court said in ADR v ECI (May 2026)
Justice Gavai: propriety bars comment on a sub judice matter; Justice Dhingra: “way beyond the limits” Justice Katju: comment is allowed absent a real and substantial risk of prejudice; Bangalore 4.11 lets judges lecture on law
Justice Sodhi: the vote depends on the statute Justice Nath: impartiality is not indifference

Balanced verdict: most of the speech restated what the Court had held; one sentence came close to answering a live question. The remedy is recusal if that question reaches the speaker, not silence for every judge.

How to Think About This

  1. Separate the subject from the conclusion. Speaking on voting rights is legitimate; stating how a pending dispute must end is not.
  2. Measure the distance to a case. The closer the words come to a matter pending, or likely to arise, the stronger the duty of restraint.
  3. Keep propriety and merits apart. “Was it proper to say?” (Gavai) and “Is it right in law?” (Sodhi) are different questions; answer them separately.

Diagram-in-Words

Argument map

Where judicial restraint begins: the column’s test

Covers the speech, what in it was on established ground, what came closer to a conclusion, the two standards and the test that follows.

The speech: NALSAR, 4 October 2026 Justice Bhuyan on voter deletions the SIR not named On established ground voting is a constitutional right notice and hearing before deletion the Court said much the same in ADR v ECI Closer to a conclusion 'no court can condone it' but put conditionally two kinds of claim Restatement, clause 8 no public views on matters pending or likely to arise for judicial determination Bangalore Principles 2.4: no comment that might affect a proceeding 4.11: judges may write, lecture and teach the standards Explain an issue, do not appear to answer it subject of the speech, specificity of the conclusion, proximity to adjudication the test Recusal could become a question not silence for every judge if the precise issue reached him
Venkatesan’s test: most of the speech stayed on established ground, one line came closer to a conclusion, and the standards separate explaining an issue from appearing to answer it.

Read it from top to bottom: the speech splits into what was on established ground and what came closer to a conclusion, and the two standards in the middle supply the test in the dark box.

✍️ Mains Answer Framework
Question

Judges must be impartial, but must they be silent? Discuss the limits on public speech by sitting judges in India, with reference to the Restatement of Values of Judicial Life (1997) and international standards of judicial conduct. (250 words)

Introduction

Judicial independence rests on public faith in impartiality. Public remarks by a sitting Supreme Court judge in October 2026, that a process disenfranchising millions would be ‘intrinsically arbitrary’ and that ‘no court can condone it’, made while electoral-roll litigation was pending, revived the question of how far judges may speak outside court.

Body

The Indian standard. The Restatement of Values of Judicial Life, adopted by the Supreme Court’s Full Court on 7 May 1997, says a judge ‘shall not enter into public debate or express his views in public on political matters or on matters that are pending or are likely to arise for judicial determination’ (clause 8), and that justice must ‘be seen to be done’ (clause 1).
The Law Commission (Report 195) called it ‘illustrative’ and recommended that it serve as the code of conduct until a statutory code is made. Accountability.
Removal under Article 124(4) needs an address by each House, by a special majority, on ‘proved misbehaviour or incapacity’; Article 121 bars discussion of a judge’s conduct in Parliament except on such a motion; the in-house procedure adopted on 15 December 1999 deals with complaints against judges. International standards.
The Bangalore Principles restrain comment that might reasonably be expected to affect the outcome of a proceeding (2.4) but let judges write, lecture and teach on law (4.11). Applying them.
Restating what the Court said in ADR v ECI (27 May 2026), that the right to vote is a constitutional right and that deletion needs notice and a hearing, is education; a categorical conclusion on a live controversy approaches adjudication. The tests are the subject, the specificity of the conclusion and its proximity to a pending case.

Conclusion

Silence is not the answer: judges who explain the Constitution strengthen public understanding of it. But a judge should explain an issue without appearing to decide it, and should step aside from a case on a question the judge has already answered in public.
Clear, published guidance on extra-judicial speech would protect both independence and impartiality.

Interview Angle

"A sitting judge speaks in public on a constitutional question close to a case pending in the same court. Where would you draw the line between judicial engagement and impropriety?"

Takeaway Box

  • The rule: the Restatement (1997) bars public views on matters pending or likely to arise; Bangalore 2.4 restrains comment, 4.11 frees judges to teach.
  • The line: explaining an issue is allowed; appearing to answer a live case is not.
  • The test: the subject of the speech, the specificity of the conclusion and its proximity to adjudication.
  • The remedy: recusal from a case on the precise question a judge has addressed, not silence.

Sources:

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