CChief Justice Surya Kant’s comments from the bench on May 15 and the clarification the next day have revived a question that Indian law has tried to resolve twice. When a judge speaks from the bench and the speech is impugned, which standard controls? While hearing applications relating to designation of senior advocates, the Chief Justice remarked that “youth are like cockroaches” and that some lawyers were “parasites of the society”. The clarification limited the criticism to designers holding fake degrees. The clarification has not ended the controversy.
The court has named the conference twice. The first was the Restatement of the Values of Judicial Life, adopted by the Full Court on May 7, 1997. was the second Chief Election Commissioner vs MR VijayabhaskarThe decision was taken by Justice DY Chandrachud and Justice MR Shah on May 6, 2021. A century earlier, Benjamin Cardozo, in his Storrs Lecture at Yale in 1921, had named the standard that constrains all judicial statements. Judges, Cardozo wrote, “are to draw their inspiration from sacred principles. They are not to yield to uncritical sentiment, vague and irregular charity. They are to exercise prudence informed by tradition, organized by analogy, disciplined by system and subordinated to the fundamental necessity of order in social life.”
vijaybhaskar standard
trigger for vijaybhaskar Placed 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 the Karur polling station, headed by Chief Justice Sanjib Banerjee. The bench expressed displeasure at the Election Commission for allowing large political rallies during the assembly elections, remarking that the Commission was “wholly responsible” for the situation and that Commission officials “should probably be charged with murder.” The comments were not in formal order but were widely reported. The Election Commission moved the Supreme Court for a direction to stop the media from reporting the oral comments of the judges.
Justice Chandrachud refused that stay. The decision did three things. It defended bench questioning as a method that provides “clarity to judges” and lets lawyers develop arguments “with a sense of creativity based on spontaneity of thought”. It cautioned against sharp language directed at individuals or institutions, describing the Madras High Court metaphor as “inappropriate” and the comments as “harsh”. And as a matter of principle, it held that “the formal opinion of the judicial body is reflected through its decisions and orders, and not through its oral comments during hearings.” Thus the two aspects of the bench’s remarks were pointed out by the court itself: the question that tests and the language that wounds. The same standard, derived from Cardozo and codified in Item 8 of the 1997 Restatement, applies to both.
back question that tests
The first aspect is the bench question which tests an argument. To see how the lawyer defends against this, the judge explains the position she cannot be in. The form is unwritten; The work is hard. A decision is a considered position; The question on the bench is about the trial to be held before this. Three examples show the form at work. during the second round of hearing Brown vs. Board of Education Before the Supreme Court of the United States, Justice Felix Frankfurter asked Thurgood Marshall what he meant when he said that the Constitution required “equal” treatment in schools. Marshall replied: “Same means getting the same thing, at the same time and in the same place.” The bench’s question forced the petitioner to define his tenure in a phrase that would travel. Became involved in North 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 would have stripped them of their power to review government decisions for reasonableness. President Esther Hayut told the government lawyer from the bench: “We are not concerned about our reputation but about the vital interests of the public.” He pressed the government on whether reasonableness could survive as a legal obligation if a judge could not enforce it. The inquiry was widely read as a foreshadowing of an 8:7 majority to repeal the law in January 2024.
Marriage equality petitions to be heard in April 2023 Supriyo vs Union of IndiaChief Justice Chandrachud told Solicitor General Tushar Mehta that “there is no absolute concept of man or no absolute concept of woman… The concept of man and woman is not an absolute concept based on genitals.” The exchange was widely read as a signal that the bench would include same-sex relationships in the Special Marriage Act, 1954. The decision given six months later went the other way. Chief Justice Chandrachud himself was in minority. The question from the bench had acted as a test. The situation in question is elsewhere.
intemperate comment
The second face is intemperate comments. Standards against “bigoted language” become most strained when the language reaches the point of inhumanity.
Hearing in December 2015 Fisher v. University of Texas On race in university admissions in Austin, Justice Antonin Scalia said from the bench that there were those who argued that African-American students did better at “slow schools” than at competitive universities. This commentary turned to the empirical question of whether affirmative action helped its intended beneficiaries. The language he used to ask questions had its own importance. The comment was widely condemned as racist. Justice Scalia did not back down. He died two months later, and the remarks were left on the record.
Hearing the bail plea of a government employee accused of raping a schoolgirl in Maharashtra on March 1, 2021, Chief Justice SA Bobde asked his lawyer: “Will you marry her?” The accused’s lawyer told the court that his client was already married. The Chief Justice withdrew the suggestion. A week later, he said the comments were “grossly mischaracterized”: he had asked whether the accused was going to get married, not instructed him to do so.
Hearing a PIL on urban housing for the poor in February 2025, Justice BR Gavai, who will take over as Chief Justice three months later, wondered whether the free facilities were creating “a class of parasites”. That he was urging the homeless to join the mainstream does not justify this adjective. Justice Surya Kant’s May 15 comments belong to the same category and follow the same category: statement, criticism, clarification limiting the scope of what was said.
The same standard applies off the bench as well. In July 2016, United States Supreme Court Justice Ruth Bader Ginsburg called then-Republican presidential candidate Donald Trump “a fraud” in media interviews and said she did not want to think about his victory in the White House. After Mr. Trump called for her resignation, she issued a statement: “Upon reflection, my recent comments in response to press inquiries were ill-advised and I regret making them. Judges should refrain from commenting on any candidate for public office. I will be more cautious in the future.” Item 8 of the 1997 Restatement, which directs an Indian judge “not to engage in public debate or express his views publicly on political matters or on matters which are pending or likely to arise for judicial determination”, would have reached the same conclusion in less words.
A pattern runs through the incoherent comments. Each was followed, where it was not followed at all, by a return that did not match what was said. Scalia did not back down. Justice Bobde said that the comment was misrepresented. Chief Justice Surya Kant said the criticism was narrower than the report. Only Ginsburg stepped back and acknowledged the standard she had exceeded. The retreat that gives its name to the rule is of a rare type. A retreat refusing speech is more common.
Standard vijaybhaskar The identity has not changed. What has changed is the audience. Comments from the bench now travel from the courtroom to the news cycle in real time, before the court’s formal opinion is written. The discipline, called Cardozo, and codified in Item 8, is now conducted publicly. An explanation negating the speech leaves a wound on the record and the standard remains unanswered. An explanation in which the name of the rule is given vijaybhaskar asks the bench. The first opportunity to implement this has come and gone. One second is now in play.
(V. Venkatesan is a journalist and legal researcher.)
published – May 21, 2026 08:30 AM IST
