CJI’s ‘cockroaches’ comment & clarification: Oral remarks and institutional limits

Chief Justice Surya Kant’s remarks from the bench on May 15 and the clarification that followed the next day have revived a question Indian law has tried to settle twice. When a judge speaks from the bench and the speech wounds, what standard governs? Hearing applications relating to the designation of senior advocates, the Chief Justice remarked that “there are youngsters like cockroaches” and that some advocates were “parasites of society.” The clarification confined the criticism to fake-degree-holding designees. The clarification has not closed the controversy. The court has named the convention twice. The first was the Restatement of Values of Judicial Life, adopted by the Full Court on May 7, 1997. The second was Chief Election Commissioner vs M.R. Vijayabhaskar, decided by Justice D.Y. Chandrachud and Justice M.R. Shah on May 6, 2021. A century before either, Benjamin Cardozo, in his Storrs Lectures at Yale in 1921, named the standard that constrains all judicial utterance. The judge, Cardozo wrote, “is to draw his inspiration from consecrated principles. He is not to yield to spasmodic sentiment, to vague and unregulated benevolence. He is to exercise a discretion informed by tradition, methodized by analogy, disciplined by system, and subordinated to the primordial necessity of order in the social life.” The Vijayabhaskar standard The trigger for Vijayabhaskar lay in the Madras High Court. In April 2021, during the second wave of COVID-19, the Madras High Court was hearing a petition on COVID protocols at a Karur polling booth, with Chief Justice Sanjib Banerjee presiding. The Bench, exasperated at the Election Commission for permitting large political rallies during the Assembly elections then under way, remarked that the Commission was “singularly responsible” for the situation and that Commission officers “should be put up for murder charges probably.” The remarks were not in the formal order but were widely reported. The Election Commission moved the Supreme Court for a direction restraining the media from reporting oral observations of judges. Justice Chandrachud refused that restraint. The judgment did three things. It defended bench questioning as a form that provides “clarity to the judges” and lets lawyers develop arguments “with a sense of creativity founded on a spontaneity of thought.” It cautioned against scathing language directed at persons or institutions, calling the Madras High Court’s metaphor “inappropriate” and the remarks “harsh.” And it held, as the doctrinal centrepiece, that “the formal opinion of a judicial institution is reflected through its judgments and orders, not its oral observations during the hearing.” Two faces of the bench remark were thus named by the court itself: the question that tests and the language that wounds. The same standard, drawn from Cardozo and codified in Item 8 of the 1997 Restatement, applies to both. The bench question that tests The first face is the bench question that tests an argument. The judge states a position she may not hold, to see how the lawyer defends against it. The form is unscripted; the function is rigorous. The judgment is the considered position; the bench question is the testing that precedes it. Three instances show the form at work. During the second round of hearings in Brown vs Board of Education before the United States Supreme Court, Justice Felix Frankfurter asked Thurgood Marshall what he meant by saying the Constitution required “equal” treatment in schools. Marshall answered: “Equal means getting the same thing, at the same time, and in the same place.” The bench question forced the petitioner to define his term in a phrase that would travel. The answer entered the American civil rights doctrine. On September 12, 2023, the Israeli Supreme Court sat as a 15-justice panel to hear petitions against an amendment that stripped the courts of their power to review government decisions for reasonableness. President Esther Hayut told government counsel from the bench: “We are not concerned with our prestige but with the vital interests of the public.” She pressed the government on whether reasonableness could survive as a legal obligation if no judge could enforce it. The questioning was widely read as foreshadowing the 8:7 majority that struck down the law in January 2024. In April 2023, hearing the marriage equality petitions in Supriyo vs Union of India, Chief Justice Chandrachud told Solicitor General Tushar Mehta that “there is no absolute concept of a man or an absolute concept of a woman at all… the very notion of a man and a woman is not an absolute based on genitals.” The exchange was widely read as signalling that the bench would read same-sex unions into the Special Marriage Act, 1954. The judgment delivered six months later went the other way. Chief Justice Chandrachud himself was in the minority. The bench question had done its work of testing. The considered position lay elsewhere. The intemperate remark The