Where should judicial restraint begin?

1. At a Glance

• The core question: in a matter that is still sub judice (pending before a court), where does a sitting judge's freedom to speak in public end and judicial propriety / restraint begin? [1]
• The trigger: Justice Ujjal Bhuyan (Supreme Court) said in a public speech that mass disenfranchisement would be unconstitutional. Former CJI B.R. Gavai and former Delhi HC judges objected, saying he was commenting on a pending matter. [1]
• The tension: the "noisy judges" idea (judges as democracy's guardians) runs up against the need for impartiality and appearing neutral in cases still to be decided. [1]
• Why it matters for UPSC: this sits where GS-II (judiciary, the Election Commission, voting rights) meets GS-IV (ethics of public office, impartiality, propriety).

2. Why in the News

• 4 Oct 2026: Justice Ujjal Bhuyan gave the valedictory address at a moot court competition at NALSAR University of Law. He said the right to vote is constitutional and part of the basic structure. [1]
• He also said that a process disenfranchising millions would be "intrinsically arbitrary" and would violate Articles 14 and 326; that Article 326 "cannot be tinkered with"; and that "no court can condone" mass disenfranchisement. [1]
• He cited Section 22 of the Representation of the People Act, 1950 to argue that notice and a hearing are required before a name is deleted from the roll, except in the case of death. [1]
• Former CJI B.R. Gavai objected that "judicial propriety" does not allow a sitting judge to comment on a sub judice matter. Former Delhi HC judges S.N. Dhingra and R.S. Sodhi raised similar concerns; Justice Sodhi stressed the statutory framework that governs voting rights. [1]
• 5 Oct 2026: Justice Vikram Nath, the senior-most puisne judge of the SC, spoke on "impartiality and independence" in a lecture in Delhi. [1]
• The article was analysed by V. Venkatesan (The Hindu, 26 Oct 2026, p. 21). [1]
• Context (not in the excerpt): the pending matter is most likely the litigation over the ECI's Special Intensive Revision (SIR) of electoral rolls, which began in Bihar in June 2025 and was later extended to other States. [2]

3. Background & Evolution

• 1973: Kesavananda Bharati sets out the basic structure doctrine. Free and fair elections and democracy were later read into it. [2]
• 1988–89: the 61st Constitutional Amendment lowers the voting age under Article 326 from 21 to 18. [2]
• 7 May 1997: the SC Full Court adopts the "Restatement of Values of Judicial Life". It says a judge should not express views in public on political matters or on matters pending or likely to arise for judicial determination. [2]
• 2002: the Bangalore Principles of Judicial Conduct set out six values: independence, impartiality, integrity, propriety, equality, and competence & diligence. The UN ECOSOC endorsed them in 2006. [2]
• January 2018: four senior SC judges hold a press conference. This was the high point of judges speaking publicly. [2]
• July 2018: Justice Ranjan Gogoi, months before becoming CJI, says democracy sometimes needs "noisy judges" alongside independent journalists. [1]
• October 2026: the Bhuyan speech and Gavai's objection reopen the debate. [1]

4. Core Static Facts

Item	Fact
Sub judice	"Under judicial consideration." Comment on such matters is restrained to protect fair adjudication. [1]
Article 14	Equality before law / equal protection. Arbitrariness violates it. [1]
Article 326	Elections to the Lok Sabha and State Assemblies are on the basis of adult suffrage. [1][2]
RPA 1950, Section 22	Correction of entries in electoral rolls. Per Bhuyan J., notice and a hearing are needed before deletion, except for death. [1]
RPA 1950 vs 1951	1950 Act = electoral rolls, allocation of seats. 1951 Act = conduct of elections, disqualification, corrupt practices. [2]
Puisne judge	Any judge other than the Chief Justice. [1][2]
Restatement of Values of Judicial Life (1997)	An in-house code of 16 points. Not statutory, and not enforceable by itself. [2]
Article 121 / 211	Parliament (121) and State Legislatures (211) may not discuss a judge's conduct in the course of duty, except on a removal motion. [2]
Status of the right to vote	Bhuyan J. called it constitutional and part of the basic structure. Earlier SC rulings (e.g. Kuldip Nayar, 2006) had treated it as a statutory right. [1][2]

5. Multi-Dimensional Analysis

Legal / Constitutional

• The substance of Bhuyan J.'s remarks (procedural safeguards, the hearing requirement) is in line with existing rulings. The controversy is over timing and forum, because the matter is pending. [1]
• Calling the vote a constitutional / basic-structure right, rather than a merely statutory one, is legally significant and still contested. [1][2]
• Justice Sodhi's line of argument: voting rights are governed by a statutory framework, so constitutional rhetoric should not get ahead of what the statute says. [1]

Ethical / Governance

• Impartiality, actual and apparent: a public view on a pending issue can create a reasonable apprehension of bias and grounds to seek recusal. [1][2]
• On the other side, judges have a duty to protect rights, and "noisy judges" can act as a check on executive overreach. [1]
• Ethical frame: Kant's idea of duty set against consequentialist arguments. Restraint protects the institution; speaking out protects rights.

Institutional / Administrative

• Senior judges disagree publicly (Gavai vs Bhuyan; Vikram Nath's lecture the next day). This shows there is no codified, enforceable code for judges' extra-judicial speech. [1][2]
• The ECI's autonomy under Article 324 comes up against judicial oversight of how electoral rolls are revised. [2]

Social / Democratic

• Mass deletions from electoral rolls hit migrants, the poor and people with weak documentation hardest, which raises equity concerns. [1][2]

Comparative

• In the US and UK, judicial codes discourage comment on pending matters. In the US, recusal is handled under 28 U.S.C. §455. [2]

6. Recent Developments (last 12-18 months)

• 4 Oct 2026: Bhuyan J.'s NALSAR speech on voter deletions. [1]
• After 4 Oct 2026: former CJI B.R. Gavai, and former Delhi HC judges S.N. Dhingra and R.S. Sodhi, criticise it. [1]
• 5 Oct 2026: Justice Vikram Nath's lecture in Delhi on impartiality and independence. [1]
• 26 Oct 2026: The Hindu publishes its analysis "Where should judicial restraint begin?". [1]
• 2025–26: the ECI's SIR of electoral rolls (Bihar first, then a wider rollout) faces petitions in the SC. [2]

7. Prelims Hooks

• The "noisy judges" remark: Justice Ranjan Gogoi, July 2018, before he became CJI. [1]
• Article 326 = elections on the basis of adult suffrage. [1]
• Article 14 covers arbitrariness: an arbitrary state action violates equality. [1]
• Section 22, RPA 1950 deals with correcting entries in electoral rolls. [1]
• Bhuyan J.'s reading: deletion requires notice and a hearing, except in case of death. [1]
• Electoral rolls fall under the RPA 1950, not the RPA 1951. [2]
• Puisne judge = an SC/HC judge other than the Chief Justice. [1]
• NALSAR University of Law is in Hyderabad. [2]
• Restatement of Values of Judicial Life was adopted on 7 May 1997 by the SC Full Court. [2]
• Bangalore Principles of Judicial Conduct (2002) list six core values. [2]
• The voting age was lowered to 18 by the 61st Amendment (1988). [2]
• Article 121 bars Parliament from discussing a judge's conduct except on a removal motion. [2]
• Article 324 gives the ECI superintendence, direction and control of electoral rolls and elections. [2]

8. Was He Judging a Case, or Just Restating the Law?

• The strongest defence of Justice Bhuyan: he said nothing new
• The substance of his remarks (that notice and a hearing must come before a name is deleted) matches what courts have already ruled [1].
• Section 22 of the RPA 1950 is a written provision. Reading it out in public is not taking sides [1].

• On this view, a judge who explains settled law to law students is teaching. He is not judging a case.

• Why the defence only partly holds

• He did not stop at the general rule. He said a process that removes millions of voters would be "intrinsically arbitrary" and that "no court can condone" it [1].
• Those are not just principles. They are close to a verdict on the very question the pending SIR petitions ask: is this revision lawful? (SIR = Special Intensive Revision, the ECI's fresh check of electoral rolls.)

• The 1997 Restatement covers matters that are "pending or likely to arise", not only cases on a judge's own list. So even a general-sounding remark is covered once the dispute is live in court.

• What the defence gets right

• Judges are not meant to be silent. Lectures on rights, due process and the Constitution are a normal part of judicial life.
• So the line is not "never speak about voting rights". It is "do not apply the principle to a dispute that is still undecided". Bhuyan J. crossed from the first into the second.

9. Why the Harm Lands on the Case, Not Only the Judge

• A public view on a pending issue gives a litigant grounds to seek recusal (recusal = a judge stepping away from hearing a case)
• If Bhuyan J. is later placed on a bench hearing the SIR matter, the ECI can argue he has already made up his mind.
• If he sits anyway and the ECI loses, it can say the result was decided in a lecture hall, not a courtroom.

• If he steps aside, the court loses a judge it chose for the bench. Either way, the case pays.

• The ruling, whatever it is, becomes harder to accept

• A court's ruling has force only if the losing side believes it was heard fairly.

• A judge's remarks before the hearing give the losing side, whether that is the ECI or the voters, a ready reason to reject the result.

• The public sees judges divided before the case is even argued

• A former CJI (Gavai) and two former HC judges objected in public [1].
• The next day, the senior-most puisne judge (Vikram Nath) lectured on "impartiality and independence" [1].
• Citizens now see the judiciary arguing with itself about a case it has not yet decided. That costs public trust in the court as a whole, not just in one judge.

10. Why Nobody Can Enforce the Rule

• The only written code has no legal force
• The Rajya Sabha Standing Committee looking at judicial accountability noted that the Restatement of Values of Judicial Life "does not have any legal authority and cannot be enforced" [3].

• So a breach has no penalty. It stays a matter of conscience and of criticism from other judges.

• The tools that do exist are far too heavy for a speech

• The only formal route to act against an SC judge is a removal motion. Article 121 also stops Parliament from discussing a judge's conduct except during such a motion.

• No one would remove a judge over one lecture. So in practice there is nothing in between: either removal, or no action at all.

• The attempt to fill the gap failed

• The Judicial Standards and Accountability Bill, 2010 tried to put judicial standards into law and create a way to examine complaints against judges [4].
• It lapsed. So the 2026 controversy is being settled the only way left: retired judges criticising a sitting judge in the media [1].
• Public criticism is a weak check. It shapes reputation but binds no one, and it can look like settling scores.

11. Where the Line Could Sensibly Be Drawn

• The SC Full Court should update the Restatement for public speeches
• The 1997 text is a single broad line on pending matters, written before televised and live-streamed lectures.
• The Full Court could state a simple test. Explaining a legal principle is allowed. Saying how that principle settles a dispute now in court is not.

• Because it would come from the court itself, judicial independence stays intact. That was the main concern about outside control during the 2010 Bill debate [3][4].

• The CJI should treat recusal on a speech as a listing question, settled early

• When a judge has spoken publicly on an issue that is in court, the CJI, who decides which judges hear which case, can simply not place that judge on the bench.

• This avoids a messy recusal fight in the middle of the hearing and protects the ruling from later attack.

• Parliament can revisit codification, but with the judiciary enforcing it

• The Standing Committee's work on the 2010 Bill already shows how statutory standards could be built on the Restatement [3].

• A revived law should leave enforcement to a body within the judiciary, so that the executive, which is often a party in court, gets no lever over judges.

• Judges have other ways to raise an alarm about rights

• A judge worried about mass deletions can say so from the bench through orders and judgments, where the other side is heard first.
• The "noisy judge" idea [1] works best inside the courtroom. Outside it, the noise has no hearing behind it.

12. Anchors for Answers

• Report/Committee: Rajya Sabha Standing Committee report on the Judicial Standards and Accountability Bill, 2010. It found the 1997 Restatement "does not have any legal authority and cannot be enforced" [3]
• Law/Case: Restatement of Values of Judicial Life (SC Full Court, 1997), which bars public views on matters "pending or likely to arise"; Article 121 (no discussion of a judge's conduct in Parliament except on a removal motion); Section 22, RPA 1950 (correction and deletion of entries in electoral rolls) [1]
• Law/Case: Judicial Standards and Accountability Bill, 2010. It tried to make judicial standards enforceable by law and then lapsed [4]

13. Mains Relevance

• GS-II: Structure, organisation and functioning of the Judiciary. Salient features of the RPA. Constitutional bodies (ECI).
• GS-IV: Ethics in public administration. Impartiality, non-partisanship, probity. Codes of conduct.
• Possible question stems: 1. "Judicial restraint in speech is as important as judicial activism in judgments." Discuss with reference to recent controversies over judges commenting on sub judice matters. 2. Is the right to vote in India a statutory right or a constitutional right? Examine in light of Article 326 and the procedural safeguards on deleting voters from electoral rolls. 3. Does the absence of an enforceable code of conduct for the higher judiciary weaken public trust? Suggest institutional reforms.

14. Related Topics to Study Next

• Judicial activism vs judicial restraint vs judicial overreach. The conceptual base for this debate.
• Recusal and the rule against bias (nemo judex in causa sua). These are the remedies when a judge has pre-judged an issue.
• Contempt of Courts Act, 1971 and the sub judice rule. The parallel restraint on media and on litigants.
• ECI's Special Intensive Revision and electoral roll law (RPA 1950). The substantive dispute behind the remarks.
• Basic structure doctrine. Bhuyan J. placed the right to vote within it.
• Judicial accountability: the Judges (Inquiry) Act 1968, the in-house procedure, the lapsed Judicial Standards and Accountability Bill 2010. Enforcement gaps.
• Post-retirement appointments and judges' extra-judicial roles. The broader debate on propriety.
• ECI independence (Article 324; Anoop Baranwal, 2023). The institutional relationship between the judiciary and the ECI.

15. NCERT Concepts to Revise

• Judicial restraint (Polity): The central idea: how far a sitting judge should hold back from public comment on pending matters.
• Recusal (Polity): The remedy when a judge's public remarks create a reasonable fear of bias in a pending case.
• Right to vote (Polity): Bhuyan J. called it constitutional; courts have mostly held it statutory, which is a key point of dispute.
• Special Intensive Revision (Polity): The likely pending case behind the remarks, involving mass deletions from electoral rolls.
• Representation of the People Act 1950 (Polity): Section 22 on deleting names from rolls, which Bhuyan J. cited, is in this Act.
• Basic structure doctrine (Polity): Bhuyan J. placed the right to vote within the basic structure, a contested claim.

16. Common Errors / Trap Areas

• RPA 1950 vs RPA 1951: electoral rolls and Section 22 are in the 1950 Act, not the 1951 Act. [1][2]
• Status of the right to vote: SC precedent has largely called it statutory (Kuldip Nayar, 2006). Bhuyan J.'s "constitutional / basic-structure" framing is not settled law. [1][2]
• The Restatement of 1997 is not a statute. It is a voluntary in-house code with no penal consequences. [2]
• "Puisne" does not mean "junior". It means any judge other than the Chief Justice. [1]
• Who said what: the "noisy judges" remark is Gogoi's (2018), not Bhuyan's. The objection on propriety came from Gavai, a former CJI, not the sitting CJI. [1]