Bharat Bhushan | From The Bench To Barbs: ‘Cockroach’ Slur On Critics

Cockroaches are among the world’s oldest living insects. They survived for 300 million years simply by occupying spaces from which it is very difficult to exclude them. Whether some judges like them or not, they will continue to be irritated by their presence.

Chief Justice of India Surya Kant’s obiter dicta in a case before him described some unemployed youngsters as “cockroaches”, some of whom go on to “become” (sic) the media, social media, RTI activists, and start “attacking the system”. He called them social “parasites” and rebuked the petitioner, who was striving to be designated as a senior advocate, asking him whether he wanted to join them.

After the media backlash, a day later, he claimed that he had been “misquoted”, and that his reference to “parasites” was to those who had entered the legal and other “noble professions” with fake degrees. He also claimed that the “youth of India inspired” him and they too had “great regard and respect” for him. This seems to be an exercise in damage control -- journalism, social media activists and RTI applicants do not need any formal degrees.

Notwithstanding the denial, it is important to note that metaphors that dehumanise any citizen are not merely intemperate speech. They show contempt for fellow human beings. When youth unemployment is seen not as a structural issue but as individual failure, it normalises contempt towards the economically marginalised youth. Grievance is neither a deviant identity nor should expressing grievance be criminalised in a democracy.

In India, the poor and the unemployed have limited options of formal political participation except for voting once in five years. The use of social media and RTI are a few tools available to them to speak out and hold the system accountable. Such participation cannot be dismissed as idle frustration.

RTI activists do not file applications because the bureaucracy welcomes them. Journalists do not write about judicial conduct because the judiciary welcomes it. And social media critics do not post because institutions, including the judiciary, give them permission to do so. They work despite the hostility of State institutions by using the rights they legally enjoy and despite the hurdles.

Referring to them as an underclass who emerge like “cockroaches” will have a chilling effect on the safety of journalists, social media activists and RTI seekers, already under threat. An ideological cover will be provided to all those in the State system who wish to suppress democratic accountability. It aligns the judiciary with State power, weaponises judicial authority (threat of CBI investigation into “fake degrees” of lawyers), disparages the right to free speech, and implicitly attacks the democratic intent of Parliament, which passed the RTI Act.

The controversy has also foregrounded the power asymmetry between judges and ordinary citizens. Citizens who criticise judges risk being hauled up for contempt, but there is no legal accountability for judges who use dehumanising language for citizens. There is no mechanism for holding judges accountable for remarks made in open court. There is no independent disciplinary body for the judiciary. The self-appointed collegium, through which the judiciary claims to police itself, can hardly be called structurally independent.

The insularity of elite judicial careers, the exceptional degree of institutionalised respect they get in the courtroom and the long socialisation of judges with their social peers -- senior lawyers, corporate clients, and high State officials -- shapes the perception of judges about what is normal, legitimate or deviant. Experience of unemployment, grassroots journalism and RTI activism is alien to their social reality. The isolation that is meant to keep them independent often emboldens them to display their biases without fear.

That is why one finds that misogyny is embedded in adjudications on sexual violence, communal biases in property and civil disputes, and contempt is shown for social activists albeit in a paternalist voice. An independent press, free social media and RTI users make our institutions strong and accountable. They are not enemies of democratic institutions.

Yet, service has been rendered to Indian democracy in these critical times by the controversy surrounding the CJI’s remarks. By pointing out that persistent, fearless and uninvited accountability is precisely what the State institutions most fear today and are unable to stop. That is one victory already for “cockroaches”.

The signal to the “cockroaches” is clear: the institutions for delivering justice and guaranteeing their rights are not neutral but riddled with class interests, ideological commitments and fragile egos. This is useful knowledge for those who will hold such institutions accountable. That is victory number two.

A third victory lies in the fact that by making the comments in an open court created documentation -- a permanent public record, which clarification a day later cannot erase. When a person in a position of supreme institutional authority reaches out for such language, they also define themselves in terms of their relationship to ordinary citizens and those living on the margins of the economy.

The comments about unemployed youth, RTI and social media activists, are laden with elite contempt. The talk of “fake and bogus degrees” underlines a credentialled elite calling names to those, who in its eyes, are without them. Legitimacy, for them, follows from stable employment, professional standing and respecting institutions without carping about their functioning. Citizens bereft of these qualifications, it would seem, are not full citizens but interlopers in the civic space.

This is a class position, not a judicial one. Judicial authority in democratic India does not automatically flow from being part of a socially disconnected elite. The RTI Act was not made for lawyers and judges but for a daily wage worker on the government project wanting to know why he had not been paid minimum wages or a villager trying to find reasons for denial of a BPL ration card.

The freedom of speech guarantee is not only for those with credentials but for every citizen. The right to be heard does not require one to be in stable employment or to have the right institutional membership. The whole point of ensuring democratic accountability is that those who try to enforce it often have to work outside the permission structure of the institutions they scrutinise.

In India, constitutional rights are not distributed by social position and no amount of judicial obiter dicta can change that. Cockroaches have survived the dinosaurs. They will certainly survive freelance judicial philosophy as well.

The writer is a senior journalist based in New Delhi