When the Constitution speaks through its judges

A democracy breathes best when its judges think aloud — for justice, after all, is not born in silence but in dialogue.

There has been a quiet, almost imperceptible transformation within India’s courtrooms. Judges are no longer content to speak only through written orders; they speak to the moment, aloud, sometimes passionately, and always with moral urgency. Their questions are sharper, their reflections deeper, and their unease more transparent. Each word, however, now travels beyond the walls of the courtroom — replayed, excerpted, sometimes distorted — turning judicial thought into public spectacle. Yet beneath this noise lies a question of constitutional philosophy: should judges think aloud?

The question acquires urgency not in the abstract but in the everyday. Consider what happened recently inside court number one of the Punjab and Haryana High Court during the Khadoor Sahib MP Amritpal Singh’s plea for attending the Lok Sabha. Chief Justice Sheel Nagu did not settle for procedural exchanges; he demanded constitutional responsibility.

Addressing senior advocate RS Bains, he asked pointedly: “What is your preparation? How will you participate? What is your research work? You are talking about your rights. Now, we will also talk about your duty as an MP… Which item are you going to discuss there? Or will he just be a silent spectator?”

The courtroom was not witnessing an opinion; it was witnessing constitutional pedagogy — a reminder that democratic entitlement flows with democratic accountability.

The same Bench did not shy away from administrative candour. When Punjab tried to explain delay in construction of residences of judicial officers, the Chief Justice clarified he was not casting the State down but reflecting institutional reality: “We have seen in Gurugram how the State functions. We are still waiting for the tower of justice to be handed over — waiting for years together. Haryana is doing better than you. If they cannot do it, how can you do it?” It was not a reprimand for public consumption; it was a constitutional demand for efficiency.

Other hearings tell the same story. On the Tribune flyover issue, the Bench verbally questioned the very foundation of the project: “The Master Plan is screaming no flyover. How are you going in for it?”

In another matter concerning the unhygienic Sector 26 market, the Chief Justice noted in open court:

“Have you seen the muck that is there? You cannot even step into that market.”

None of these comments were judgments — but each was a demonstration of constitutional conscience working aloud.

These examples reinforce the point: oral observations are not outbursts; they are laboratories of reasoning. They test hypotheses, expose governance failures and demand accountability in a way that written orders alone cannot. The courts have repeatedly made it clear that oral remarks do not constitute binding law. They are instruments of inquiry, not weapons of opinion. To suppress them out of fear of misinterpretation would be to weaken the democratic fibre of adjudication itself.

American legal philosopher Lon Fuller insisted that the moral force of law lies not merely in outcome but in procedure — in how justice is reasoned into existence. American legal professional and philosopher Ronald Dworkin’s “Judge Hercules” could never have been imagined as silent. Law’s legitimacy flows not from muted intellect but from open reasoning.

In our constitutional architecture, this openness is not ornamental — it is foundational. Article 19(1)(a) may belong to citizens, but a democracy suffocates if its judges are forced into intellectual silence. Open justice is more than the right to enter a courtroom; it is the right to witness the judicial mind at work.

There is, of course, a danger in the age of instantaneous reporting. A sentence extracted from its forensic context can acquire unintended political colour. Yet the solution cannot be a gag on thinking aloud. A constitutional republic cannot mature if its judges fear that every question might become a headline. The answer lies in public literacy — in recognising that remarks probe whereas judgments decide.

Indian constitutional history validates judicial candour. The doctrine of Basic Structure grew not only from the written opinions in Kesavananda Bharati but from the fierce, audible debate that preceded them. Constitutional law has always evolved through what judges dared to ask — not only through what they finally wrote.

Yes, candour must be disciplined. The strength of a judge lies not in silence but in control — the art of probing without prejudging. As Lord Denning cautioned, a judge must say what justice demands even if the words sting — but must also know when to stop speaking and let the law speak instead.

The real question is not whether judges should speak; it is whether society has the maturity to listen. A silent Bench may look dignified, but a speaking Bench keeps democracy breathing. For when judges think aloud, it is not an individual opinion that resonates — it is the Constitution thinking through them.