The Crossbill News Desk
Former Supreme Court judges Abhay Oka and Gopala Gowda have questioned objections to Justice Ujjal Bhuyan’s criticism of the Special Intensive Revision (SIR) of electoral rolls, arguing that his remarks on the right to vote did not constitute judicial impropriety.
Both former judges defended his right to speak on the constitutional implications of the exercise, with Gowda also calling for the Supreme Court to reconsider its ruling upholding the SIR.
Oka, a former Chief Justice of the Karnataka High Court, maintained that sitting judges must exercise restraint when discussing the merits of cases pending before their own benches or coordinate benches. However, he argued that judicial office does not take away an individual’s status as a citizen or prevent judges from expressing views on matters of public importance.
“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,” Oka said during an interaction with former Judge Advocate General Nilendra Kumar, Founder-Director of the Lex Consilium Foundation, as reported by Live Law.
The former judge was responding to the controversy surrounding Bhuyan’s valedictory address at the 19th NALSAR-Justice BR Sawhney Memorial Moot Court Competition at NALSAR University of Law in Hyderabad, where he spoke about the implications of the SIR exercise.
Bhuyan had said that if a process resulted in “disenfranchising millions and millions of Indian citizens making them second class citizens in their own country in the sense of being citizens without voting rights”, it was “intrinsically arbitrary” and “no amount of whataboutery” could justify it.
Rejecting the suggestion that the address amounted to criticism of judicial proceedings, Oka said he had listened to the speech in full and found no comment on the merits of a pending case or any Supreme Court order concerning the SIR.
“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.”
Oka further argued that judges speaking to law students could discuss legal questions in their capacity as students of law, given that learning remained a continuous process even for members of the judiciary.
“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,” he said.
Oka also recounted his own experience during the SIR process. According to LiveLaw, he was required to submit Form 8 after an error was allegedly found in the spelling of his surname, despite his having provided official identity documents carrying the correct spelling.
“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?”
He said arbitrary implementation could undermine an otherwise legal process, adding that citizens, including sitting judges, could raise objections when procedures were applied arbitrarily. On former Chief Justice of India BR Gavai’s criticism of Bhuyan’s remarks, Oka maintained that retired judges were not subject to the same restraints as those still serving on the bench.
Gowda, another former Supreme Court judge, took a stronger position, calling for the Supreme Court to recall its judgment upholding the SIR. According to Live Law, he said the ruling should be reconsidered “as it was a result of a fraud played by the Election Commission of India by misrepresenting facts and misleading the Court”.
Gowda also sought access to Election Commission of India records to establish whether the decision to conduct the SIR had received the concurrence of all three members of the commission — the Chief Election Commissioner and the two Election Commissioners.
“Illegality and unconstitutionality is writ large on the (SIR) judgment,” Gowda said.
Defending Bhuyan’s intervention, Gowda argued that a judge was entitled to speak on constitutional questions. He also questioned Gavai’s criticism, pointing out that the former CJI had himself spoken on public issues in the past. Gowda further criticised what he described as a failure to address public concerns surrounding reports about the Election Commission’s decisions.
Both former judges defended his right to speak on the constitutional implications of the exercise, with Gowda also calling for the Supreme Court to reconsider its ruling upholding the SIR.
Oka, a former Chief Justice of the Karnataka High Court, maintained that sitting judges must exercise restraint when discussing the merits of cases pending before their own benches or coordinate benches. However, he argued that judicial office does not take away an individual’s status as a citizen or prevent judges from expressing views on matters of public importance.
“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,” Oka said during an interaction with former Judge Advocate General Nilendra Kumar, Founder-Director of the Lex Consilium Foundation, as reported by Live Law.
The former judge was responding to the controversy surrounding Bhuyan’s valedictory address at the 19th NALSAR-Justice BR Sawhney Memorial Moot Court Competition at NALSAR University of Law in Hyderabad, where he spoke about the implications of the SIR exercise.
Bhuyan had said that if a process resulted in “disenfranchising millions and millions of Indian citizens making them second class citizens in their own country in the sense of being citizens without voting rights”, it was “intrinsically arbitrary” and “no amount of whataboutery” could justify it.
Rejecting the suggestion that the address amounted to criticism of judicial proceedings, Oka said he had listened to the speech in full and found no comment on the merits of a pending case or any Supreme Court order concerning the SIR.
“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.”
Oka further argued that judges speaking to law students could discuss legal questions in their capacity as students of law, given that learning remained a continuous process even for members of the judiciary.
“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,” he said.
Oka also recounted his own experience during the SIR process. According to LiveLaw, he was required to submit Form 8 after an error was allegedly found in the spelling of his surname, despite his having provided official identity documents carrying the correct spelling.
“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?”
He said arbitrary implementation could undermine an otherwise legal process, adding that citizens, including sitting judges, could raise objections when procedures were applied arbitrarily. On former Chief Justice of India BR Gavai’s criticism of Bhuyan’s remarks, Oka maintained that retired judges were not subject to the same restraints as those still serving on the bench.
Gowda, another former Supreme Court judge, took a stronger position, calling for the Supreme Court to recall its judgment upholding the SIR. According to Live Law, he said the ruling should be reconsidered “as it was a result of a fraud played by the Election Commission of India by misrepresenting facts and misleading the Court”.
Gowda also sought access to Election Commission of India records to establish whether the decision to conduct the SIR had received the concurrence of all three members of the commission — the Chief Election Commissioner and the two Election Commissioners.
“Illegality and unconstitutionality is writ large on the (SIR) judgment,” Gowda said.
Defending Bhuyan’s intervention, Gowda argued that a judge was entitled to speak on constitutional questions. He also questioned Gavai’s criticism, pointing out that the former CJI had himself spoken on public issues in the past. Gowda further criticised what he described as a failure to address public concerns surrounding reports about the Election Commission’s decisions.
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