Commentary and Explanation of CJI “Cockroaches”: Verbal Notes and Institutional Limits

CChief Justice Surya Kant’s rulings on May 15 and the clarification that followed the next day revived an issue that Indian law has tried to settle twice. When a judge speaks from the bench, what is the standard? While hearing applications regarding the appointment of senior advocates, the Chief Justice observed that “there are young people like cockroaches” and that some advocates are “parasites of society”. The clarification limited the criticism to bogus title holders. The clarification did not close the dispute.

The court named the convention twice. The first was the Restatement of Values ​​of Judicial Life, adopted by the Full Court on 7 May 1997. The second was Chief Election Commissioner v MR Vijayabhaskar, decided by Justice DY Chandrachud and Justice MR Shah on 6 May 2021. A hundred years earlier, Benjamin Cardozo in his Storrs standard in all Yale lectures constrains judges12 speech. The judge, Cardozo wrote, “is to draw inspiration from sacred principles. He is not to yield to convulsive sentiment, vague and unregulated benevolence. He is to exercise discretion based on tradition, methodized by analogy, disciplined by system, and subordinated to the primal necessity of order in social life.”

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 regarding the COVID protocols at the polling booth in Karur, presided over by Chief Justice Sanjib Banerjee. Irritated by the Election Commission for allowing large political rallies during the Assembly elections then held, the Bench observed that the Commission was “specially responsible” for the situation and that the officials of the Commission “should probably be charged with murder”. The remarks were not in formal order, but were widely reported. The Election Commission has proposed to the Supreme Court to restrict the media from reporting oral observations of judges.

Justice Chandrachud rejected this restriction. The judgment did three things. He advocated bench questioning as a form that provides “clarity for judges” and allows lawyers to develop arguments “with a sense of creativity based on the spontaneity of thought”. He warned against scathing language directed at persons or institutions, calling the Madras High Court metaphor “inappropriate” and the remarks “harsh”. And as central to the doctrine, he held that “the formal opinion of a judicial institution is reflected in its judgments and orders, not in its oral submissions during hearings.” Thus, the Court itself named the two faces of the bench note: the question that tests and the language that injures. The same standard, adopted from Cardozo and codified in § 8 of the 1997 Restatement, applies to both.

A question on the bench that tests

The first face is a bench question that tests the argument. The judge lists the position she is not allowed to hold so she can see how the defense attorney defends against her. The form is scriptless; function is strict. Judgment is a 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 v Board of Education before the United States Supreme Court, Justice Felix Frankfurter asked Thurgood Marshall what he meant by the Constitution requiring “equal” treatment in schools. Marshall replied, “To be equal is to get the same thing, at the same time and in the same place.” A question on the bench forced the petitioner to define his term in a phrase that would travel. The answer entered American civil rights doctrine.

On September 12, 2023, Israel’s Supreme Court sat as a 15-judge court to hear petitions against an amendment that stripped 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 statutory duty if no judge could enforce it. The hearing was widely seen as a foreshadowing of the 8-7 majority which struck down the law in January 2024.

In April 2023, when hearing the marriage equality petitions in Supriyo vs Union of India, Chief Justice Chandrachud told Advocate General Tushar Mehta that “there is no absolute concept of man or woman at all…the very concept of man and woman is not absolutely based on genitalia”. The exchange was widely seen as a signal that the court would read same-sex unions into the Special Marriage Act of 1954. A ruling six months later went in the opposite direction. Chief Justice Chandrachud himself was in the minority. The test question did its job. The position considered lay elsewhere.

An intemperate remark

The other face is an intemperate remark. The standard against “caustic language” is most severe when the language amounts to dehumanizing.

In December 2015, when Justice Antonin Scalia heard Fisher vs. University of Texas at Austin about race in college admissions, Justice Antonin Scalia noted from the bench that there were those who argued that African-American students did better at a “slower school” than at competing universities. The note addressed the empirical question of whether affirmative action helped its intended beneficiaries. The language he used to ask the question carried weight. The remark was widely condemned as racist. Justice Scalia did not budge. He died two months later, leaving a note on the record.

On 1 March 2021, when hearing the bail plea of a government employee accused of raping a schoolgirl in Maharashtra, Chief Justice SA Bobde asked his counsel: “Will you marry her? The accused’s counsel informed the court that his client was already married. The presiding judge withdrew the motion. A week later, he said the remark was “totally misreported”: he asked if the accused was going to get married and did not order him to so he did.

When Justice BR Gavai, who took over as Chief Justice three months later, heard a PIL on urban housing for the poor in February 2025, he wondered aloud whether the freedman was creating a “parasite class”. That he urged the homeless to be mainstreamed didn’t buy the epithet. Justice Surya Kant’s May 15 remarks fall into the same category and follow the same arc: speech, criticism, clarification limiting the scope of what was said.

The same standard applies off the bench. In July 2016, United States Supreme Court Justice Ruth Bader Ginsburg called Donald Trump, then the presumptive Republican presidential nominee, a “phony” in media interviews and said she did not want to think about him winning the White House. After Mr. Trump called for her resignation, she issued a statement: “On reflection, my recent comments in response to press inquiries were unwise and I regret making them. Judges should avoid commenting on a candidate for public office. I will be more cautious in the future.” Clause 8 of the 1997 Revised Proclamation, which directs an Indian judge “not to enter into public debate or publicly express his views on matters of policy or on matters pending or likely to arise for judicial decision”, would reach the same conclusion in fewer words.

A pattern runs through the intemperate notes. Each, where followed at all, was followed by a retreat that did not correspond to what was said. Scalia did not back down. Judge Bobde said the note was misreported. Chief Justice Surya Kant said the criticism was narrower than reported. Only Ginsburg, when she recused herself, acknowledged the standard she had exceeded. The retreat that names the rule is the rarer kind. A retreat that denies speech is more common.

The identified standard Vijayabhaskar has not changed. What has changed is the audience. Bench notes now travel from the courtroom to the news cycle in real time before the court’s formal opinion is written. The discipline named Cardozo and codified item 8 now works in public. The specification that the speech denies leaves the wound on the record and the norm unanswered. The clarification that named the rule is what Vijayabhaskar is seeking from the bench. The first opportunity to apply it has come and gone. Now there is a second in the game.

(V. Venkatesan is a journalist and legal researcher.)

Published – 21 May 2026 08:30 IST