Rarely does this publication focus on individual judges, unless there is a scandal, a landmark ruling or an assessment of a retiring chief justice’s tenure. Supreme Court judge Justice Ujjal Bhuyan deserves that space for another reason: his willingness to speak openly about the judiciary, democracy and the constitutional values that sustain both.
He is that rare judge who uses his position to articulate views that are as progressive as they are attuned to the times we live in. At a recent lecture at National Law University, Delhi, he said students cannot be threatened with punitive action merely for expressing a different point of view or asking questions. “The right to question is an essential part of citizenship, liberty and constitutional responsibility,” he said.
His remarks came just before the Delhi Police told the Supreme Court that it was dropping all FIRs against the Cockroach Janta Party protestors, barring one involving a history-sheeter who was present at Jantar Mantar at the time.
Justice Bhuyan stressed the importance of dissent, tolerance and independent thought in a constitutional democracy, particularly within universities. “In a democracy, the right to question is not an act of defiance. It is an essential expression of citizenship, liberty and constitutional responsibility. So, when students express a different point of view, when students ask questions, they cannot be threatened. They cannot be threatened with punitive action. That is unconstitutional. That is misuse of power and office.”
The statement carries particular resonance in the context of student protests across the country, and not merely those relating to examination paper leaks. Justice Bhuyan’s own association with legal education gives his words added weight: he served as Chancellor of the National Academy of Legal Studies and Research (NALSAR) before his elevation to the Bench.
“A university, in my view, should be one of the first places where the habit of thinking freely begins,” he said. Universities, he added, should be spaces where ideas are not accepted merely because they are familiar and where students do not hesitate to ask difficult questions simply because the answers may be uncomfortable.
A CONSCIENCE KEEPER
At virtually every forum where he has been invited to speak, Justice Bhuyan has reinforced his reputation as a kind of conscience keeper of the constitutional order.
At the 5th Justice GP Singh Memorial Lecture at NLIU Bhopal, his central message was again the importance of the right to question. He spoke of the “shrinking democratic space” in the country, concerns over the handling of bail matters and the need to preserve clear boundaries between the three organs of government.
He has used the analogy of a “three-legged stool” to describe the Executive, Legislature and Judiciary, warning that if the legs become asymmetrical, the system itself becomes unstable. He has also criticised the trend of former chief justices entering political spaces such as the Rajya Sabha, calling the idea of “bridging the gap” between the judiciary and executive fundamentally wrong.
But it is on the question of tolerance that Justice Bhuyan has perhaps been most emphatic. At a time when social, caste and religious fault lines have produced violence and, in some cases, deaths, he recalled Justice Chinnappa Reddy’s judgment in Bijoe Emmanuel vs State of Kerala: “Our tradition teaches tolerance, our philosophy preaches tolerance, our Constitution practises tolerance. Let us not dilute it.”
Those words, delivered four decades ago in 1986, are even more relevant today, Justice Bhuyan argued. “Tolerance is not merely a matter of personal courtesy. It is a constitutional value. A democracy becomes meaningful not when everyone speaks the same language of thought, but when different voices can coexist, be heard and be treated with dignity.”
The Constitution, he said, does not seek uniformity of thought. It creates a framework within which people holding different beliefs, opinions and convictions can live with equal dignity and participate in democratic life.
A democratic society, he argued, cannot be built on the assumption that everyone will think alike. Differences will exist, and those differences must be accommodated within the broader constitutional framework. Constitutional democracy requires the State to listen to citizens, citizens to listen to one another, institutions to remain accountable and society not to treat every dissenting voice as a threat.
For Justice Bhuyan, the maturity of a democracy is reflected not merely in how it treats popular opinions backed by a majoritarian mandate, but in how it responds to opinions that are “difficult, unpopular or sometimes very inconvenient”.
“An intolerant mind, by its very nature, is at odds with the spirit of the Constitution. It is a manifestation of another form of violence. The ability to live with disagreement is therefore not merely a social virtue. It is the very essence of a liberal constitutional democracy.”
TRANSPARENCY BEHIND THE BENCH
Justice Bhuyan has been equally forthright about judicial transparency and the Collegium system.
Only recently, during a lecture, he argued that the Supreme Court Collegium should give reasons for judicial appointments if public confidence in the process is to be preserved. Concealing the rationale behind appointments, he suggested, risks allowing individuals to enter the higher judiciary whose private conduct or past remarks might subsequently undermine core constitutional values.
He invoked the classic philosophical question: “Who watches the watchman?” He has also questioned the transfer of judges from one High Court to another when they have passed orders inconvenient to the government, warning that such actions can affect the independence of the judiciary.
His criticism extends beyond judicial administration to environmental jurisprudence. Speaking at the Vivekananda Kendra in Guwahati, he bluntly observed: “Environment is not a priority for politicians.”
He traced the right to a pollution-free environment to Article 21—the fundamental right to life—and pointed to the failure of state executives to discharge their environmental responsibilities. In such circumstances, he argued, citizens and courts are compelled to step in to protect India’s increasingly fragile ecology.
Earlier this year, at another speaking engagement, he considered how far India remains from genuine constitutional morality, pointing to disturbing social realities, including objections by parents to Dalit women cooking mid-day meals for schoolchildren.
OPENING THE DOORS OF THE SUPREME COURT
Perhaps his most significant intervention has been on the question of representation within the higher judiciary.
Justice Bhuyan recently drew attention to Article 124(3) of the Constitution, which permits the appointment of a person who, in the opinion of the president, is a “distinguished jurist” as a Supreme Court judge. No jurist has been appointed to the Supreme Court under this provision to date.
He offered two possible explanations. The first was the view, initially held by the central government and later by the Collegium, that there was insufficient depth in Indian academia for legal scholars to be seriously considered for elevation to the Supreme Court. His second explanation was more pointed: “Both the central government and the collegium have not seriously explored this provision thus far.”
Justice Bhuyan traced the provision to the Constituent Assembly debates and recalled that HV Kamath had proposed expanding the pool of eligible candidates beyond judges and advocates to include distinguished jurists. The proposal was ultimately accepted.
“The Constituent Assembly evidently felt it important to have legal academics and professors as judges of the Supreme Court of India,” he said.
He rejected the argument that academics lack the practical experience required for the Bench, calling it a “shallow objection”. A distinguished jurist, he argued, could add enormous value through scholarship and contribute significantly to decision-making at the highest level. “It is regrettable that this provision has remained one of our Constitution’s unused mandates,” he said.
He pointed to the appointment of academics to constitutional courts in jurisdictions, including the United States, United Kingdom, Canada and Kenya. He has also, controversially, said he would welcome transgender or sexual-minority individuals serving as judges.
AN ASSAMESE VOICE IN THE SUPREME COURT
Justice Bhuyan is one of the relatively few Supreme Court judges to have come from Assam. Justice Ranjan Gogoi remains the most prominent, having risen to become chief justice of India, although Gogoi subsequently took a position in the Rajya Sabha—contrary to Justice Bhuyan’s view that judges should avoid entering political spaces after retirement.
Justice Bhuyan studied at Kirori Mal College in Delhi and Government Law College, Guwahati. He enrolled as an advocate in 1991 and practised primarily before the Gauhati High Court. He was elevated to that court as a judge in 2013, later serving in the Bombay High Court and the Telangana High Court, where he became chief justice. He was appointed a judge of the Supreme Court on July 14, 2023.
He currently ranks 18th in the Supreme Court hierarchy and is due to retire on August 1, 2029. He is not in the line of succession to become chief justice of India. Yet, his public articulation of issues concerning the judiciary and society has given him a distinct identity: that of a judge willing to speak as a constitutional conscience.
His most consistent position is that judicial independence must be maintained at all costs because it is fundamental to the judiciary’s relevance and legitimacy.
“If we lose our credibility, nothing will be left of our judiciary. Judges will be there. Courts will be there. They will adjudicate. But its heart and soul will evaporate.”
Justice Bhuyan acknowledges that judges, like everyone else, may possess political or ideological leanings. But those leanings, he insists, cannot determine judicial decision-making. Judges must follow constitutional principles, not political ideology.
The Supreme Court, he has stressed, exists to uphold personal liberty and human rights. It is not an institution established to justify executive action that denies liberty or violates human rights.
WHEN THE SUPREME COURT SPEAKS IN MANY VOICES
Perhaps his strongest criticism of the highest court concerns the consequences of conflicting judicial pronouncements.
“When we apply principles of laws, there can’t be a multiplicity of views in the Supreme Court. When several benches of the top court speak in different voices while expounding the law, it risks not only conveying a wrong message to the courts below but also undermines the court’s credibility.”
There can, he argued, be no divergence on the fundamentals upon which the legal system rests. While some judges regard “polyvocality” as a sign of diversity on the Bench, others see it as a serious threat to institutional credibility.
That distinction goes to the heart of Justice Bhuyan’s larger argument. A judiciary can be independent and still lose public confidence. It can possess constitutional authority and yet weaken its legitimacy if its processes appear opaque, its decisions inconsistent or its institutional boundaries blurred.
There are, certainly, other Supreme Court judges who have raised similar concerns and deserve credit for defending judicial independence and constitutional rights. But Justice Bhuyan stands out for the consistency with which he has argued that greater transparency is essential to strengthening constitutional democracy.
A judiciary that enjoys public trust is better equipped to hold governments accountable, protect individual liberty and uphold the rule of law for ordinary citizens.
At a time when the credibility of the judiciary is itself increasingly under scrutiny—with the recent controversy involving the Rajasthan Acting Chief Justice adding to those concerns—voices such as Justice Bhuyan’s deserve to be heard.
More importantly, they deserve to be answered.
—The writer is former Senior Managing Editor, India Legal magazine
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