A sitting Supreme Court judge should not have delivered a verdict from a moot court podium on a matter listed before his own Court the next morning. That does not make what he said wrong, and the Commission has spent a week proving it.
New Delhi: On Sunday evening at NALSAR, Hyderabad, Justice Ujjal Bhuyan told a hall of law students that any process which disenfranchises “millions and millions” of Indian citizens is “intrinsically arbitrary” and a “negation” of the constitutional order, that the Constitution recognises no two classes of citizens, one with the vote and one without, that an enrolled voter’s name cannot be removed without notice and a hearing unless the voter is dead, and that “no amount of whataboutery” can justify it. He did not say the words “Special Intensive Revision”. He did not need to.
On Monday morning, a Bench of Chief Justice Surya Kant, Justice Joymalya Bagchi and Justice V. Mohana sat to hear petitions seeking the suspension and prosecution of Chief Election Commissioner Gyanesh Kumar over decisions on that very revision. By then, Jairam Ramesh had already declared that Justice Bhuyan had “exposed the CEC lock, stock and barrel”. By Monday evening, former Chief Justice B.R. Gavai had said judicial propriety does not permit a judge to comment on a matter sub judice before his own Court, and two retired Delhi High Court judges, S.N. Dhingra and R.S. Sodhi, had called the remarks “way beyond the limits of a sitting top court judge”.
I think the former Chief Justice is right. I also think the Election Commission has, over the last ten days, done more damage to its own standing than any speech could. Both things need saying, and the second does not excuse the first.
The rule Justice Bhuyan broke is the Court’s own
The Restatement of Values of Judicial Life, adopted by the Full Court of the Supreme Court in 1997, is not a Bar Council pamphlet. It is the Supreme Court’s own code, and its ninth clause is unambiguous: a judge shall not enter into public debate or express views in public on political matters or on matters that are pending or likely to arise for judicial determination. The Bangalore Principles of Judicial Conduct, which India helped draft, say the same thing in their second value: a judge shall not, while a proceeding is before any court, make any comment that might reasonably be expected to affect its outcome or impair the fairness of the process.
Measure Sunday’s speech against that text. The SIR has been before the Supreme Court since July 2025. The Court decided the Bihar challenge in May 2026. Fresh petitions on the Commission’s internal decision-making were filed last week and were listed for Monday. A challenge to the 2023 Act that removed the Chief Justice from the panel selecting Election Commissioners is pending. The question of whether a voter can be deleted without notice, which Justice Bhuyan answered from the podium, is one of the live issues in those cases. He pronounced on Articles 326 and 14, on arbitrariness, on the classes of citizenship, and he did so in the vocabulary of a judgment, not of an academic lecture.
The defence offered on his behalf is that he spoke in abstractions and named no process. That is not a defence; it is the problem. A judge who says “I am not talking about the case before my Court” while describing its facts in every particular is relying on the listener to draw the inference, and the listener drew it within the hour. Justice Bhuyan was not on Monday’s Bench. He may never sit on the SIR matters. But he is a member of the institution that will decide them, and every lawyer who argues those cases will now do so knowing what one of its senior judges thinks. That is precisely the influence the Restatement exists to prevent.
There is a second difficulty. Justice Bhuyan used the same platform to praise NALSAR’s students as “bold and brave” weeks after a section of them wrote to their Vice-Chancellor opposing Chief Justice Surya Kant as convocation chief guest. Whatever one thinks of the students’ letter, a puisne judge publicly applauding a campus campaign against the Chief Justice, on the eve of a hearing the Chief Justice is presiding over, is not a matter of free expression. It is a signal, and signals from the Bench are read.
None of this is new to Justice Bhuyan’s record. He is an independent-minded judge, and the country has benefited from that independence, most visibly in his separate opinion in the Kejriwal CBI arrest matter in 2024. Independence on the Bench is a virtue. Independence from the Bench’s own rules is not.
Now the Commission
Having said that, let me say what the former judges who rushed to condemn Justice Bhuyan left out.
On September 26, the Election Commission issued a press release stating that the new declaration appended to Form 6, under which every fresh applicant for enrolment must state whether he or his parents were “mapped” in the previous revision, had been upheld by the Supreme Court in its May 2026 judgment on the Bihar SIR. On Monday, Chief Justice Surya Kant said in open court: “Any modified Form 6 has not been approved by us. Let’s be clear. When the record is produced, we would like to see who has modified.” The declaration, it turns out, was introduced after the May judgment. The Court never saw it. A constitutional body told the country that the Supreme Court had approved something the Supreme Court had never been shown. That is not a drafting error. It is the kind of statement that, had a private litigant made it, would attract a show-cause.
Then there is the Indian Express investigation that triggered the petitions. The two Election Commissioners, Sukhbir Singh Sandhu and Vivek Joshi, are reported to have objected in writing at least fourteen times over ten months to SIR decisions taken without their knowledge or against their recommendation, including the Form 6 declaration itself, which they said could not be introduced without the Union Government amending the Registration of Electors Rules, 1960. Section 18 of the Chief Election Commissioner and Other Election Commissioners Act, 2023 requires that the Commission’s business be transacted unanimously where possible and by majority where not. A three-member body in which two members are overruled fourteen times by the third is not functioning by majority. It is functioning by one man, and the Act that the Government itself wrote says it may not.
Justice Dhingra’s response to this was that the Commissioners “are all top bureaucrats” who “can speak for themselves”. That is an odd thing for a judge to say about a constitutional body. The point of a multi-member Commission is that decisions are institutional, not personal, and that the majority’s view is the Commission’s view. If two members are being overruled in writing and the public learns of it only through a leak, the question is not whether they can speak for themselves. It is why the Commission’s decisions do not reflect them.
And underneath both controversies sits the exercise itself. The Bihar revision of 2025 removed roughly 65 lakh names from the draft roll in a single stroke, on the footing of enumeration forms not returned, before the Supreme Court compelled the Commission to accept Aadhaar as proof and to publish the lists of the deleted with reasons. The burden was placed on the citizen to prove continued entitlement, rather than on the State to prove a ground for removal. That inversion is what Justice Bhuyan was describing when he spoke of notice and hearing, and on that narrow legal proposition he has the better of Justice Sodhi’s argument that “whether you have a vote depends upon the statute”. The vote is statutory, as Kuldip Nayar and PUCL held. But adult suffrage is in Article 326, deletion under Section 22 of the Representation of the People Act, 1950 has always required a reasonable opportunity to be heard, and a statutory right administered arbitrarily is an Article 14 problem no matter how it is labelled. Justice Sodhi’s position, that the only questions are whether a person is entitled to be on the roll and whether the statutory procedure was followed, is correct. The complaint is that the second question is not being answered.
Two wrongs, two different remedies
The temptation on each side of this argument is to use the other side’s failure as a shield. The Commission’s defenders say Justice Bhuyan’s impropriety discredits the criticism of the SIR. Justice Bhuyan’s defenders say the Commission’s conduct vindicates his speaking out. Both are wrong, and the reasons are different.
A judge’s duty of restraint is not contingent on the executive behaving well. It exists because the Court’s authority rests on the belief that its judges decide cases on the record before them and not on views announced in advance. The remedy for a judge who speaks out of turn is the one the Court’s own code contemplates: the Chief Justice, as master of the roster and head of the institution, takes it up internally, and the judge concerned keeps a distance from the matter. That is what should happen here, quietly and without a public spectacle.
The Commission’s duty of collective and lawful decision-making is not contingent on judges holding their tongues either. The remedy there is the one the Court began on Monday: produce the record, show who modified Form 6 and on whose authority, show the fourteen objections and what was done with them, and apply Section 18 of the 2023 Act as written. The Bench was right to refuse an interim suspension of the Chief Election Commissioner on an ex parte plea; a Commission without a head on the eve of State elections is a worse outcome than a Commission under scrutiny. But the Chief Justice’s words, “if there is any violation, we will undo”, are now a commitment, and the record will show whether they are kept.
The institution that comes out of this worst is neither the Court nor the Commission but the public’s confidence in the space between them. A judge who editorialises and a Commission that misreports the judge’s own Court are two ends of the same erosion. The country needs the first to go back to deciding cases and the second to go back to counting voters, both by the rules each of them wrote.
Views are the author’s own.
