From calling unemployed youth “cockroaches” to questioning workers, activists, women, voters and intimate choices, the higher judiciary's recent language reveals a disturbing shift from constitutional guardianship to moral policing.
By Ramphal Kataria
“Courts are not expected to echo the prejudices of society; they are expected to correct them.”
“Constitutional courts derive legitimacy not from the power to punish but from the confidence people repose in them.”
“When judges begin to speak like governments, citizens begin to fear courts rather than trust them.”
Introduction: When Remarks Become Constitutional Signals
Courts do not speak only through judgments. They speak through questions, observations, insinuations, metaphors and passing comments. In a constitutional democracy, especially one as unequal and polarized as India, the language of the higher judiciary carries immense moral authority. Every sentence uttered from the Bench becomes a signal to governments, bureaucracies, police officers, lower courts, media institutions and citizens.
That is precisely why the growing pattern of controversial observations emanating from India's higher judiciary deserves serious scrutiny.
A stray comment can be dismissed as human error. Two comments may be attributed to personal bias. But when a pattern emerges—where unemployed youth are described as “cockroaches”, RTI activists are portrayed as nuisances, trade unions are blamed for economic stagnation, rape survivors are asked whether they would marry their assailants, live-in relationships are viewed through moralistic lenses, and disenfranchised voters are told to seek bureaucratic remedies rather than immediate constitutional protection—the question becomes unavoidable:
Is the higher judiciary increasingly speaking the language of authority rather than the language of constitutional liberty?
The Constitutional Role of the Judiciary
The Indian judiciary was never conceived as an extension of executive power.
The Constitution envisages courts as:
· Protectors of fundamental rights.
· Guardians of minorities.
· Defenders of dissent.
· Custodians of procedural fairness.
· Counter-majoritarian institutions.
Constitutional Anchors
· Article 14: Equality before law.
· Article 19(1)(a): Freedom of speech and expression.
· Article 19(1)(b) & (c): Freedom of association and assembly.
· Article 21: Right to life and dignity.
· Article 32: Right to constitutional remedies.
· Preamble: Justice, liberty, equality and fraternity.
The judiciary exists not to discipline citizens but to discipline power.
When judges begin sounding more suspicious of citizens than of state authority, constitutional equilibrium begins to shift.
The Republic Needs Judges, Not Moral Guardians
The legitimacy of the Supreme Court rests neither upon the sword nor the purse. It rests upon public faith. Alexander Hamilton described the judiciary as possessing “neither force nor will, but merely judgment”. In India, that judgment carries an even greater responsibility because constitutional courts are not merely legal institutions; they are guardians of liberty, dissent and equality.
Yet a disturbing trend has emerged in recent years.
Oral observations and even judicial reasoning increasingly reveal a pattern of impatience with dissent, suspicion towards activists, hostility towards labour rights, moral anxiety over relationships, and an inclination to validate state authority over citizen freedoms.
Viewed individually, each remark may appear innocuous or merely offhand. Viewed together, they reveal something more troubling: a judicial culture gradually moving away from constitutional morality towards social conservatism and executive deference.
A Series, Not Isolated Incidents
1. Unemployed Youth as “Cockroaches”
Bench:
Chief Justice Surya Kant and Justice Joymalya Bagchi
Context:
Petition concerning Senior Advocate designation and fake law degrees.
Observation:
“There are youngsters like cockroaches, who don't get any employment… some become media, social media, RTI activists and attack everyone.”
India is home to one of the world's highest youth unemployment rates.
Article 41 speaks of securing the right to work.
The Constitution views unemployment as a social problem requiring state action.
The language of "cockroaches" transforms victims of structural unemployment into objects of contempt.
Such language echoes authoritarian instincts rather than constitutional compassion.
2. RTI Activism Reduced to “Business”
Bench:
Justice Sandeep Mehta and Justice Vijay Bishnoi
Context:
Anticipatory bail plea involving an RTI activist.
Remarks:
"RTI activism has become a new business."
"Who are you to monitor roads? Are you an engineer?"
Article 19 guarantees freedom of expression.
The RTI Act institutionalised citizen oversight precisely because corruption flourishes without scrutiny.
The judiciary itself has repeatedly celebrated transparency.
To dismiss activism as nuisance undermines democratic accountability.
3. Trade Unions Blamed for Industrial Backwardness
Bench:
Chief Justice Surya Kant
Context:
Minimum wages for domestic workers.
Observation:
Trade unions are largely responsible for stalling industrial growth.
Article 19(1)(c) guarantees association.
Article 43A mandates workers' participation.
Trade unionism is not an obstacle to democracy; it is democracy entering the workplace.
From the Ahmedabad Textile Strike to Bombay Mill movements, labour rights have built modern India.
Judicial suspicion towards unions reflects neoliberal economics rather than constitutional socialism.
Ambedkar's Warning
Dr. B.R. Ambedkar repeatedly warned that political democracy without social and economic democracy would remain fragile.
Labour rights are not obstacles to democracy.
They are among its foundations.
4. Reconsidering the Broad Definition of "Industry"
Nine-Judge Constitution Bench
Context:
Review of Bangalore Water Supply judgment.
Government argued that hospitals, educational institutions and welfare departments should not be industries.
If narrowed, millions may lose protection under labour laws.
The Constitution does not place efficiency above dignity.
Article 21 guarantees dignified life.
Article 39 directs protection against exploitation.
Yet labour protections increasingly appear burdensome in judicial discourse.
5. "Will You Marry Her?" – Rape and Marriage
Bench:
Chief Justice S.A. Bobde
Context:
POCSO rape case involving a minor.
Question:
“Will you marry her?”
This triggered nationwide outrage.
Marriage cannot erase rape.
Article 21 protects dignity.
A rape survivor is not an object to be rehabilitated through marriage.
The Supreme Court itself later acknowledged that compromise cannot extinguish sexual violence.
Feminist Critique
The idea of “marry your rapist” reflects what feminist scholars identify as the transfer of concern from the victim's autonomy to society's notions of honour.
The Constitution protects dignity.
Patriarchy protects reputation.
The two are not the same.
“A constitutional court must ask whether justice is done, not whether social respectability is restored.”
But the damage was already done.
6. Live-In Relationships and Marital Assumptions
Repeated judicial observations have questioned whether sexual intercourse between live-in partners can amount to rape.
Such comments revive patriarchal assumptions that intimacy implies perpetual consent.
Against:
· Article 21
· Bodily autonomy jurisprudence
· Puttaswamy
· Navtej Johar
Consent is continuous, not permanent.
Marriage or cohabitation does not extinguish autonomy.
7. Voters Can Wait
Bench:
Chief Justice Surya Kant and Justice Joymalya Bagchi
Context:
Deletion of names during electoral revisions.
The Court observed that rights cannot be "washed away forever" but refused interim voting rights.
The right to vote may be statutory, but democracy itself is constitutional.
Missing one election means losing political voice for five years.
Justice delayed in electoral matters often becomes justice denied.
8. Women Asked to Control Their Sexual Urges
Calcutta High Court
The Court advised adolescent girls to resist "two minutes of pleasure."
The Supreme Court later overturned these observations.
Victim-blaming dressed as morality has repeatedly surfaced in Indian courts.
The Constitution does not protect chastity; it protects liberty.
9. Career Women and Desertion
Lower courts treated a woman's professional aspirations as cruelty.
The Supreme Court corrected these feudal assumptions.
Yet the frequency with which such ideas emerge shows how patriarchy remains embedded within legal consciousness.
The Larger Pattern
Seen together, these comments share common characteristics:
Suspicion towards:
· Activists
· Media
· Labour unions
· Civil society
Paternalism towards:
· Women
· Relationships
· Sexual autonomy
Preference for:
· Order over liberty
· State authority over citizen participation
· Efficiency over rights
Constitutional Morality Versus Popular Morality
Dr. B.R. Ambedkar warned:
"Constitutional morality is not a natural sentiment."
Judges are expected to defend constitutional morality even against popular prejudice.
In:
Navtej Singh Johar v. Union of India (2018)
the Court held:
Constitutional morality must prevail over social morality.
Yet recent observations increasingly mirror social conservatism rather than constitutional values.
What the Constitution Demands
Article 14
Equality before law.
Article 19
Speech, association and dissent.
Article 21
Dignity and personal liberty.
Article 23
Protection against exploitation.
Directive Principles
Social and economic justice.
Preamble
Justice—social, economic and political.
Judges are expected to be:
· Counter-majoritarian.
· Protectors of minorities.
· Guardians of dissent.
· Defenders of labour.
· Champions of liberty.
Not managers of social morality.
Why Such Remarks Matter
Many argue these are merely oral observations.
That argument misses the point.
Oral remarks:
· Shape public discourse.
· Influence subordinate courts.
· Affect police behaviour.
· Legitimize prejudices.
· Create fear among citizens.
When a Chief Justice calls unemployed youth "cockroaches," millions hear contempt.
When RTI activists are treated as irritants, transparency suffers.
When rape survivors are asked about marriage, patriarchy receives judicial sanction.
When labour rights are viewed as impediments, capital gains moral legitimacy.
Pleasing Power?
Indian constitutional history remembers courts for moments of courage:
· Kesavananda Bharati.
· Maneka Gandhi.
· Puttaswamy.
· Navtej Johar.
· Vishaka.
But it also remembers failures:
· ADM Jabalpur.
· Habeas corpus during Emergency.
· Excessive deference to executive authority.
The concern today is not merely conservative language.
It is the appearance of judicial attitudes increasingly aligned with governmental narratives:
· Activists as troublemakers.
· Labour as obstruction.
· Dissent as nuisance.
· Citizens as subjects.
The Constitution envisioned judges as checks upon power, not its cultural allies.
A Crisis of Confidence
Courts possess no army.
Their authority rests upon trust.
Once citizens begin to believe that judges mock the unemployed, distrust activists, moralise women, and sympathise more with authority than liberty, something deeper than individual cases is damaged.
The moral legitimacy of constitutional democracy begins to erode.
And unlike governments, courts cannot win back legitimacy through elections.
Conclusion: The Constitution Requires Empathy, Not Contempt
A constitutional court must speak with restraint because its words carry the weight of the Republic.
Judges are entitled to opinions, but constitutional judges are not ordinary commentators.
They are trustees of the people's faith.
History remembers judges not for how loudly they defended institutions, but for how courageously they defended citizens.
India does not need philosopher-kings on the bench.
It needs constitutional sentinels.
For when courts begin to speak the language of power rather than the language of rights, democracy may survive procedurally, but its moral soul begins to wither.
References
1. Constituent Assembly Debates, Vol. VII (Dr. B.R. Ambedkar).
2. Kesavananda Bharati v. State of Kerala (1973).
3. ADM Jabalpur v. Shivkant Shukla (1976).
4. Maneka Gandhi v. Union of India (1978).
5. Bangalore Water Supply and Sewerage Board v. A. Rajappa (1978).
6. Vishaka v. State of Rajasthan (1997).
7. Justice K.S. Puttaswamy v. Union of India (2017).
8. Navtej Singh Johar v. Union of India (2018).
9. Joseph Shine v. Union of India (2018).
10. Hannah Arendt, Eichmann in Jerusalem (1963).
11. Granville Austin, The Indian Constitution: Cornerstone of a Nation (1966).
12. Upendra Baxi, The Crisis of the Indian Legal System (1982).
13. A.G. Noorani, Constitutional Questions in India (2000).
14. LiveLaw reports on oral observations of the Supreme Court (2021–2026).
15. Frontline, “Banality of Evil and Violence Against Women” (2021).
16. Parliamentary Standing Committee on Home Affairs, Report on Crimes Against Women and Children.
17. Articles 14, 19, 21, 23, 39, 41 and 43A of the Constitution of India.
Keywords
Supreme Court, Surya Kant, Judicial Activism, Constitutional Morality, RTI Activists, Unemployment, Labour Rights, Live-in Relationships, Rape Jurisprudence, Voter Rights, Judicial Independence, Constitutional Culture, Rule of Law, Democracy
