Judicial Independence and Public Commentary by Judges

GS-II | Indian Polity | Judiciary | Judicial Ethics

Introduction

• Noisy judges: Justice Ranjan Gogoi said, that occasionally there is a need for “noisy judges” in a democratic society, along with independent journalists.
• Recent controversies: Justice Ujjal Bhuyan’s statements regarding the “right to vote” have called into question both whether judges are acting properly when making such statements, and whether judges should be commenting on issues that are currently being litigated.

Code of Conduct for Judges

• Restatement of Values of Judicial Life (1997) Clause 8: This clause states that a judge cannot participate in public debate regarding political issues, nor may he/she/it enter into such a debate about issues which have been brought before the courts, are being considered by the courts, or will likely come before the courts.
• Clause 1: Requires conduct sustaining public faith in judicial impartiality.

Justice Bhuyan’s Remarks

• Voting: The speaker referred to voting as a constitutional right, and therefore an essential part of the foundational system.
• Articles 14 and 326: He contended that widespread removal of voting rights would constitute an arbitrary action and would therefore violate the terms of the Constitution.
• Section 22 of the Representation of the People Act, 1950: Provides for procedural safeguards by requiring that notice and a hearing must take place prior to any removal from the register, unless the person being removed has died.
• West Bengal SIR litigation: The West Bengal SIR litigation was still being considered by the Supreme Court at the time of Mr. Justice [Name]’s speech.

Existing Judicial Precedents

• Association for Democratic Reforms v. Election Commission of India (2026): The Supreme Court has determined that the right to vote is a constitutional right, but is not an absolute or unregulated right.
• Articles 325 and 326: The purpose of articles 325 and 326 are to make sure that everyone who is eligible to vote has been included in the list of registered voters and that no one who isn’t eligible to vote is listed as a registered voter.
• Rule 21A: Requires a notice, an investigation, a hearing, and a reasoned decision prior to removal.
• Key concern: The key concern was whether Justice Bhuyan should have commented on a current controversy, even though he was restating long-standing legal principles.

Judicial Freedom of Expression

• Bangalore Principles: The Bangalore Principles acknowledge the right to free speech for members of the judiciary regarding the operation of the courts, their own work in the courts and the way they are trained to become judges.
• Principle 2.4: Limit comments that may have an effect on matters pending in front of, or which could potentially be brought in front of, the judge.
• Judicial writing and teaching: Judges have permission to produce written materials, deliver lectures and provide instruction regarding the practice of law and the operation of the judicial system.
• 2023 Code of Conduct for the U.S. Supreme Court: The 2023 Code of Conduct for the U.S. Supreme Court allows for public and scholarly participation, however, it does not encourage people to make statements regarding the merits of cases that are currently before the court.

Examples of Judicial Commentary

• Justice Antonin Scalia: Recused himself from a case because of public comments he had made regarding a decision of a lower court.
• Lady Hale: Explained the different sides of the ongoing Brexit court case, however, refrained from commenting further.
• Justice B.V. Nagarathna: Criticized the Governors for withholding approval of the bills, which were being litigated in court.

Justice Bhuyan’s Judicial Record

• Mixed judicial decisions: His High Court decisions are mixed. Some have been strict and others have protected the rights of those making claims.
• Key lesson: The most important point from this is that judicial decisions based on what someone said outside of court regarding their citizenship, freedom or right to vote are generally poor indicators of how a court may rule in a properly argued matter.

Way Forward

• Judicial restraint: When judging a case that could be used as an example for future cases, judges should be careful to limit how far they go.
• Balanced Approach: Discussions about constitutional law, civil liberties and the independence of the judiciary must not be completely shut down by the public.
• Recusal: If previous remarks cause concern over fairness, recusal may be considered.
• Assessment: The subject matter of the speech, the specificity of the concluding remarks, and the degree of closeness to the actual adjudication process will determine how to conduct an assessment.

Conclusion

The judicial speech may contribute positively to the discussion of constitutional issues, however, the judiciary should maintain public confidence in their impartiality and refrain from giving an impression that they have made a decision about a case prior to listening to each party.

UPSC Mains Practice Question

Q. Discuss the balance of freedom of expression for judges, judicial propriety and judicial impartiality in India.

Prepare for UPSC with expert guidance and personalized mentorship. Strengthen your understanding of Indian Polity, Judiciary, and current affairs with a structured preparation strategy.

Start your UPSC mentorship 2027 journey today and move closer to your IAS dream!