Speaking at NALSAR University of Law, Supreme Court judge Justice Ujjal Bhuyan said that disenfranchising citizens and making them “second-class citizens” is “intrinsically arbitrary” and violative of Articles 14 and 326 of the Constitution of India, stressing that a voter’s name cannot be removed from electoral rolls without notice and hearing. While he did not expressly refer to the pending SIR petitions, his remarks that “no one is above the Constitution” triggered a debate over judicial propriety, drawing mixed responses from former judges and senior lawyers.

Justice Bhuyan had said any process that disenfranchises "millions and millions" of citizens, making them "second class citizens in their own country," is "intrinsically arbitrary," and that "no amount of whataboutery can justify it". “…any process disenfranchising millions, making them second class citizens without the right to vote was intrinsically arbitrary and violative of universal adult suffrage and right to equality. The right to vote or the right to be a voter is not a mere statutory right that flows from parliamentary legislation like the representation of the people act 1951. It's a constitutional right forming a distinct part of democracy itself. Thus positioning itself within the framework of the basic structure of the Indian constitution…”, he had said.

Justice B.R. Gavai, Former Chief Justice of India

Justice Gavai, in his reaction to PTI, said, “Judicial propriety would not permit him to make any comment on the matter which is sub judice before the court”. He said a sitting Supreme Court judge should not make statements on an issue pending adjudication before the same court.

Justice Markandey Katju, Former Judge, Supreme Court

Justice Katju said in an opinion piece published on The Philox that the criticism of Justice Bhuyan by former judges is not justified. According to him, comments on matters of public importance are not forbidden even if the matter is sub judice, unless there is a real and substantial risk of prejudice to the proceedings. He wrote that Justice Bhuyan, as a sitting judge, should not sit on a bench hearing the matter, but otherwise has a right to comment on it, and that he was surprised that former judges, including Justice Gavai, did not know the law on the point.

In a tweet, Justice Katju said, Justice Bhuyan's criticism proceeds on the footing that democracy is good for India, which he disputed. He wrote “Democracy is meant for people with rational minds, and is not suited to India, whose most people have minds full of casteism and communalism”, and “…Justice Gavai, former CJI, wrongly criticized Justice Bhuyan, since it is well settled in law that people have a right to comment on matters of public importance even if they are sub judice”.

Justice S.N. Dhingra, Former Judge, Delhi High Court

Justice Dhingra, went further, questioning the appropriateness and factual basis of Justice Bhuyan’s remarks and describing them as “way beyond the limits of a sitting top court judge”. “He should have thought a thousand times before making such a statement,” Justice Dhingra told PTI, adding that Justice Bhuyan did not know the full facts of the matter.

Asked about reports of disagreement within the Election Commission, Justice Dhingra said the commissioners could speak for themselves and that no one needed to speak on their behalf.

Justice Dr. Krishna Dixit Shripad, Former Judge, Orissa High Court/ Karnataka High Court

Justice Krishna Dixit, in an interview to a Kannada YouTube channel, was asked whether a sitting judge can make such remarks. He laid out the common-law position in some detail.

“…Two important cases are relevant here, England’s house of Lord’s was equivalent to our Supreme Court. Today it is the UK Supreme Court. In the case of Roach v. Garvan (1742), the court laid down certain principles. When a case is pending before the court, it is pernicious to prejudice the minds of the public against parties in a case before it is finally heard, and publicly prejudicing a pending case may amount to contempt of court (the judgment reads) such remarks should not be made nor such articles be written. Another case is The King v Clement (1821)…”, he said.

Highlighting that the matter pertaining to SIR is sub judice, he said, “For a sitting judge to discuss its merits is inappropriate…it may appear simple, it is not. Why? The strength of a judgment comes from the society accepting it. When will society accept it? People must approach it with an open mind. If we prejudice their minds beforehand…in these circumstances, a sitting judge, a well-known Supreme Court Judge, and a very good judge at that should not make such remarks in my opinion…my comments concern the issue itself and not any individual”.

Justice R.S. Sodhi, Former Judge, Delhi High Court

Justice Sodhi, took issue with the substance rather than only the propriety. Whether a person has a vote, he said, depends on the statute: a person who falls within its parameters has a vote and one who does not, does not. If a name was wrongly included, or the person did not meet the statutory requirements, the law should be followed for deletion, and eligible persons could seek inclusion again. He questioned describing citizens as "second class" in their own country, calling such statements "hardline".

The two lines of criticism are different. Justice Sodhi's is a merits argument that places the right to vote on a statutory footing, the very characterisation Justice Bhuyan disputed. Justice Gavai's and Justice Dhingra's is about forum and restraint, and holds whoever is right on Article 326 of the Constitution of India.

Justice Lokpal Singh, Former Judge, Uttarakhand High Court

Justice Lokpal on ECI voter deletion and the subsequent remarks by the Judges (Justice Rohinton Nariman), specifically on the 90 Lakhs vote deletion from West Bengal, said, “…It is always to see that 1000 and 1000 of votes have been deleted. But you know the people and the population of the particular states like Bihar and West Bengal. Both adjoining to the Bengalis, infiltration cannot be denied. So many fake votes. If ECI after verification has deleted the names of so many perosns…and those persons so …nobody can deny infiltration from West Bengal…”.

“A far as the view on election in West Bengal is concerned, I do not agree. You must be watching the news, after the elections, so many persons travelled from the West Bengal to Bangladesh…can anyone question this, can anyone find out where they came, and why are they retuning to Bangladesh. I do not agree on that point”, he said, while disagreeing.


Harish Salve, Senior Advocate

Harish Salve speaking to Republic Bharat, said “Judges must only speak through their judgments. You should not speak on contemporary events. You want to discuss the philosophy of the law or you want to discuss history etc. It's different. We must understand the Supreme Court may sit in benches but the judgment is not that of the chief justice's bench. The judgment is that of the Supreme Court”.

“…So it is your court's judgment. You should not target your judgment. There are certain institutional norms. See, as they say, the government has the power of the person. The government has the power of the gun. The government has the police, the army, the military and the treasury under it. The courts have nothing. And why is it that the courts are yet the most powerful institution? Because of public faith in the judiciary. And that is why they say do not do everything anything which undermines public faith in the court. Any judge who criticizes a judgment in a matter of such heavy political overtones is running the risk of undermining the institution which he adorns”, he added further.

“…I don't know whether he has been quoted out of context or in what way but I think it is something where the judges must do soul searching and find a solution”, he said.

Abhishek Manu Singhvi, Senior Advocate

Rajya Sabha member Abhishek Manu Singhvi supported Justice Bhuyan. In his remarks, he said:

“Justice Bhuyan is one of our most respected, outspoken men, without fear and inhibition on unnecessary issues. Justice Bhuyan was speaking on a topic, the title of which included the words ‘common man’. He was speaking at a gathering at a university, NALSAR, with a lot of young people. [Justice Nariman and Justice Bhuyan] both spoke about vote chori [vote theft], about vote dilution, about vote elimination, about deletion. I want to ask: what can be a greater grievance to the common man than these issues of vote dilution and vote elimination? What can affect a common man in a democracy more than that?”.

“So there is nothing new in what each said. What is new is the fearlessness, the specificity and the outspokenness in saying so. I hope and trust that more and more sections of civil society in India, engineers, doctors, architects, lawyers, housewives, think it over and speak with the same fearlessness. They have nothing to lose except their fear. Nothing can happen to them. After all, their vote is at stake”, he added.

“So I welcome such statements. I welcome the thought process behind them and, above all, I welcome the courage and the fearlessness to say it as it is, to call a spade a spade.”, he added further.

Dr Ashwani Kumar, Senior Advocate

Former Union Law Minister Dr Ashwani Kumar also backed Justice Bhuyan’s observations, saying they reflected concerns over possible disenfranchisement.

“Justice Bhuyan’s observations reflect the nation’s conscience regarding mass disenfranchisement,” Kumar said.

He said it was a matter of concern if large numbers of people were excluded from the electoral process through processes whose legal validity had come under scrutiny. Kumar said it was imperative for political parties and institutions to ensure that electoral processes remained transparent and fair and that the sanctity of an individual’s vote was preserved.

What is pending

The petitions include a challenge by Rakesh Kumar Singh, listed on October 5 before CJI Surya Kant and Justice Joymalya Bagchi and Justice V. Mohana, asking whether the CEC can exercise the Commission's powers without the concurrence of the other two Election Commissioners. It relies on a Indian Express report that Election Commissioners Sukhbir Singh Sandhu and Vivek Joshi recorded at least 14 objections in about ten months. These are the petitioners' allegations and have not been adjudicated.

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