Despite Justice Bhuyan's and Justice Nariman's virtue-signalling, the EC is doing a better job than the judiciary

Judges believe that they are beyond question, while, at the same time, they can question anybody.

Now consider the following hypothetical statement critiquing the judiciary.

“If any process results in denying justice to millions and millions of Indian citizens, making them second class citizens in their own country in the sense of being citizens without the benefit of equal treatment before the law, such a process is intrinsically arbitrary. No amount of whataboutery can justify it. It strikes at the very heart of the Constitution and I would go to the extent of saying that it is a negation of the constitutional order which we have adopted under the Constitution of India.” (words in italics inserted by author)

This is actually a statement made by a sitting judge of the Supreme Court, but with some words that indirectly referred to the Election Commission (another constitutional body) being modified by me. The purpose is to show that for every accusing finger raised by the judiciary against other constitutional bodies, four other fingers point to itself.

Here is the original statement by Justice Ujjal Bhuyan made in his valedictory address to the 19^th Nalsar Justice BR Sawhney Memorial Moot Court Competition 2026 yesterday (4 October 2026).  He said, with an obvious reference to the Election Commission’s Special Intensive Revision (SIR) of electoral rolls, which has left many genuine voters out of the list even though the intent was to weed out dead, migrated and non-citizen voters who remained on the list. He said that the right to vote is not merely a statutory right, but a constitutional one.

Bhuyan said:

“If any process results 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, such a process is intrinsically arbitrary. No amount of whataboutery can justify it. It strikes at the very heart of the Constitution and I would go to the extent of saying that it is a negation of the constitutional order which we have adopted under the Constitution of India.” (the words in italics are the ones which I have substituted in the paragraph above).

There is little doubt now that the Election Commission has left many voters angry due to the painful processes adopted to conduct the SIR. Some of those deleted voter names are being rechecked after the political outcry against partially botched SIR. A three-judge bench of the Supreme Court is going to examine the Election Commission’s conduct of the SIR and its shortcomings.

There are many problems with Justice Bhuyan’s virtue signalling statement on constitutional rights starting with this question: should a sitting judge start making statements on a case pending before the Supreme Court even before the hearings have started?

I have two other problems with Justice Bhuyan’s statement.

One is his reference to “whataboutery”, which is a nice way to saying don’t argue with me. Only my statements are important, not yours.

The word whataboutery is useful when people repeatedly try to deflect criticism of a current action by pointing out similar actions in the past that escaped scrutiny. However, it is also a way of trying to shut down anyone trying to point out hypocritical statements by someone who ought to be as accountable to the law as anyone else. And that is why I have modified Justice Bhuyan’s statement on the SIR with words that point fingers at the judiciary itself.

This may be an arguable point, but I believe that the level of anger against judicial failures is, if anything, much higher than that against the Election Commission. Despite being handicapped by the lack of full-time staff and having to manage voting schedules involving millions of people every year, the Election Commission has, by and large carried out its mandate admirably, though there have been a few hiccups now and then. SIR could be a partly botched-up effort, but it is not beyond correction and remedy, and corrective actions are now being taken. Justice Bhuyan spoke too much too soon, when we could easily say that the judiciary is responsible for justice delays. A deleted voter can be reinstated, but justice delayed or justice misdelivered is injustice.

The judiciary has been beyond reform and largely unaccountable. According to the National Judicial Data Grid, there are over 52 million cases pending in courts, the vast majority of them over a year old. Some are decades old. The Supreme Court itself is sitting on over 95,000 cases.

We also have a two-tier justice system where high-priced lawyers charging lakhs of rupees for a single appearance manage to get instant hearings in the Supreme Court, but those without the resources can end up waiting for Godot. Here are two egregious and contrasting examples:

In 2015, the Supreme Court gave petitioners a hearing at 3.15 am on 30 July in order to hear the final mercy petition of convicted terrorist Yakub Menon. And this after many appeals were earlier rejected, including by the Supreme Court itself. But in “secular India”, being seen as pro-minority is apparently more important than actually being so. In 2012, Swami Dayananda Saraswati (now departed) had filed a petition to free Hindu temples in three southern states and Puducherry from government control, but, after sitting on it for 13 years, a Supreme Court bench sent the case (which had other petitioners too) back to the High Courts in 2025. But it was forced to agree to hear them once it was pointed out that the court cannot waste 13 years without hearing the case and then expect the petitioners to begin the process all over again in the High Courts. After all, these decisions would again land in the apex court, given the stakes involved.

Another former Supreme Court judge, Justice RF Nariman, also criticised the SIR deletions in West Bengal and highlighted the (flawed) appointment process of the election commissioners (where the PM, a PM nominee and the leader of the opposition decide on appointments). He claimed the problem was that the appointments process was largely in the hands of the government. Taken together with the SIR voter deletions, Nariman said democracy was in peril.

He forgot two things:

Before 2023, when the Supreme Court decided that appointments to the Election Commission could not be done only by the executive, all appointments were done exclusively by the government. It was the government which brought in a law to include the leader of opposition for consultations on the appointment, even though he may be in a minority on the three-member panel. But, even without the law, did we have a major problem of credibility in any of the elections before 2023?

Secondly, if the Election Commission’s appointments cannot be decided by the executive alone, why then are appointments to the higher judiciary largely made by the judiciary on its own? The government can at best delay appointments and force the collegium to reconsider. Once it sticks to its decision, it is the judiciary’s nominee who gets selected as judge. The judiciary had a golden chance to bring in a better system of selections with the National Judicial Appointments Commission, legislated in 2015, but a five-judge bench junked it with just one dissenting vote. The judiciary is thus its own master and servant.

Despite the heartburn over SIR, if one were to actually do a survey, I suspect that it is the judiciary that will come out as less than popular, since we have evidence of poor justice delivery for decades now.

Judges like Bhuyan and Nariman should stop virtue-signalling and focus on judicial reforms instead of pontificating on another constitutional body, the Election Commission.

The Election Commission, warts and all, is still heroically doing its job; the judiciary is not.