No Impropriety In Justice Ujjal Bhuyan's Comment Against Mass Disenfranchisement : Justice Oka

After a controversy erupted over Justice Ujjal Bhuyan's remark that mass disenfranchisement of voters can't be condoned by any court, former Supreme Court judge Justice Abhay Oka has come in defense of Justice Bhuyan's remarks saying that the sitting Supreme Court judge did not commit any judicial impropriety. 

Justice Oka said that a sitting judge commenting on merits of a case pending before a coordinate bench, or their own bench, may not be appropriate at all. But that is not what happened in Justice Bhuyan's speech.

He opined that a judge is also an individual citizen and cannot be indifferent to national issues. A sitting judge must exercise self-restraint in the sense that they cannot go to media or write about a particular national issue they have certain views about, but if they go to a law college where a legal issue is being debated, the judge can express views as a student of law without commenting upon an order of the Court or a pending matter. 

"I don't think he has crossed limits...on the contrary, I feel he has told the importance of adult franchise to the young students and importance of adult franchise in the democracy. I don't think anything is wrong with that. In fact personally I feel that there is nothing wrong if judges talk about this process as a citizen...I will go one step ahead - surely no sitting judge can comment upon merits of a case pending in his court or some other constitutional court or coordinate bench, no doubt about it. But maybe as a student of law while discussing law with the students, he may say that a particular judgment of the Supreme Court may require reconsideration. That does not mean he will take the same view on judicial side", Justice Oka remarked.

The remarks were made in an interaction with former Judge Advocate General Nilendra Kumar, the Founder-Director of Lex Consilium Foundation. 

At the beginning of the discussion, Justice Oka said that he had gone through Justice Bhuyan's speech carefully and he did not find any comment on the merits of any case pending before the Supreme Court or any order passed by the Court regarding SIR. 

"Today morning I heard entire video of speech of Justice Bhuyan which he delivered in NALSAR, one of the leading national law schools in India. The occasion was valedictory function of a moot court competition conducted by NALSAR. From the speech I could gather that the subject of the moot court had something to do with right to vote. I heard the entire speech very carefully. I don't think he has commented upon merits of any pending case before the Supreme Court before a coordinate bench. I did not find that he has offered criticism of any of the orders passed by the Supreme Court in SIR."

Justice Oka underlined that Justice Bhuyan's attempt was to explain to the students of NALSAR the importance of adult franchise, as the topic of the moot competition (where Justice Bhuyan gave his speech) involved right to vote. 

"What he says is this - firstly, he discusses the context and meaning of adult franchise. He starts his discussion from 1895 Swaraj Bill which for the first time made some sort of a provision for adult franchise. Then he goes further. He discusses both the Government of India acts. He discusses the draft of the Constitution of India and then he says that in view of Anoop's case, which is a judgment of the Constitution bench, and after reading Article 326, he says that right to vote which is available to every adult Indian citizen cannot be divorced from Article 326 of the Constitution.

He points out Article 326 which says that right to vote has been conferred on every citizen who is above age of 18 in the elections of the central and state legislature. Article 326 says that the point of time at which a person becomes eligible that will be determined by law. The qualifications and disqualifications of voters will be also laid down by law. But basically Justice Bhuyan says that right to vote is such an important right it cannot be divorced from Article 326. Thereafter he says that if election commission removes names of lakhs millions and lakhs of voters from the voters list this act will be arbitrary. Since it will be arbitrary it will be violative of Article 14."

Justice Oka further said that when judges address students in a law college, they take on the character of students of law as the judge are themselves continuously in the process of learning. He gave example of his own speeches as a sitting judge to underline that Justice Bhuyan's speech did not amount to criticism of any judgment delivered by the Supreme Court.

"When we the sitting judges we go to any law school or law college, we go there and address the students as students of law ourselves because we keep on studying law. I'll give an example as a sitting judge, I may have addressed the law students on the issue of freedom of speech and expression under Article 19(1)(a) and how important it is and I said in number of speeches rendered in the law schools or law colleges that this is the most fundamental right, most precious fundamental right which is available and it is the duty of constitutional courts to protect and uphold that right. While saying that I may have said that in some cases people will have justification in saying that some of the courts have not protected this right. I may have said that. That does not amount to criticism of any judgment delivered by a coordinate bench or any court or that does not amount to criticism of any controversies pending before the court.

Similarly, what Justice Bhuyan has said that how adult franchise is important, in the context of the constitution of India, he refers to Article 326 and says that removal of large number of voters by election commission in millions will be arbitrary which will be naturally violative of Article 14. I find that he has no criticized any judgment of the Supreme Court or he has not commented on merits of any controversy pending in the Supreme Court. These are his thoughts as a student of law and I feel he is entitled to do so."

Notably, Justice Oka also shared his personal experience with the SIR exercise, highlighting that he was asked to fill Form 8 due to an error in the spelling of his surname even though he had supplied identity documents with the correct spelling. The judge said that he was required to find out the serial No. of his father's name in the voter list, but he was not aware of the same. As such, he filled the enumeration form and gave copies of his identity documents (including official document from Supreme Court which identified him as a retired judge). But when the enumeration list came out, his surname was not correctly spelled.

Justice Oka said that the BLO concerned told him that he will have to fill Form 8, as the BLO himself was not empowered to carry out the correction. 

"What is this exercise? Result of filling in enumeration form was there's a mistake committed in my surname notwithstanding the fact that my surname is correctly spelled in English in my official documents I had submitted. Now I have to apply under Form 8. Was it all necessary?" Justice Oka remarked. 

Responding to a question by the interviewer, the former judge further said that even proceeding on the footing that Supreme Court has upheld the validity of SIR, arbitrariness can creep in while implementing the "legal process" which would render it illegal. In such a case, a citizen, or even a sitting judge, can say that this cannot be done in an arbitrary manner. 

On another query regarding ex-CJI BR Gavai's criticism of Justice Bhuyan's speech, Justice Oka said that retired judges are not bound by the same restraints as sitting judges. But, if they have views against a particular decision of the Court, the views must still be expressed in a respectful manner, alongwith proper explanation as to why the decision is considered wrong.