When even judges can’t understand judgments

Recently, a Supreme Court bench set aside an eight-page Himachal Pradesh High Court judgment because it could not “comprehend the contents”. The case was about a tenant-landlord dispute.

Here’s an extract: “However, the learned counsel…cannot derive the fullest succour from the aforesaid acquiescence… given its sinew suffering partial dissipation from an imminent display occurring in the impugned pronouncement here at where within unravelments are held qua the rendition recorded by the learned Rent Controller…”

Aishwarya Bhati, the lawyer representing the tenant, told the court in jest that she would have to hire an English professor to interpret the judgment. “It had one entire page without a full stop,” she recalls.

The aforesaid (sorry) instance points to the curious case of judicial writing in India which has left lawyers such as Bhati yearning for “a movement towards simple English in judgment writing”. Time and again, in Indian judgments, facts, reasons and decisions find themselves under obscure, verbal stampedes.

“Innovative nuances of evidential inadequacies, processual infirmities and interpretational subtleties, artfully advanced in defence, otherwise intangible and inconsequential, ought to be conscientiously cast aside with moral maturity and singular sensitivity to uphold the statutory sanctity , lest the coveted cause of justice is a causality,” said the judgment of a high-profile political leader’s corruption case last year.

And a 268-page judgment on a criminal defamation case, contained phrases such as “exposits cavil”, “quintessential conceptuality” and “percipient discord”.

Floridity isn’t a new syndrome in legal writing. The late Justice V R Krishna Iyer – who would pepper his judgments with words like ‘jejune’ and ‘logomachy’-was criticised by some and revered by many for his literary flourishes. The problem is “everyone wants to emulate Justice Krishna Iyer without realising that they first need a command over the language,” says Mumbai-based lawyer Mrunalini Deshmukh.

Various papers by Indian judges on the art of judgment writing insist on “brevity” and “clarity”. “A judgment should unite reasoning and decision,” says Upendra Baxi, professor of law at University of Warwick and University of Delhi. “It should reserve one-third of the space for arguments, one-third for what has been said in preceding cases and one-third for the decision.”

Last week, the SC remanded a case back to Rajasthan High Court after it found the judgment neither set out facts nor gave any reasons for the conclusions reached. “Nothing should be put below the carpet in the judgment,” says 84-year-old Justice (retd) D R Dhanuka, who used to correct some of his own judgment drafts five times for improvements. Chiefly, a judgment serves two purposes, according to Justice (retd) P C Agarwal. “It is meant for the judge to safeguard himself against his own self (biases) and it lets the defeat ed party know why they lost,” he says.

Needless to say, it must be easily understood by judges, lawyers and the layman. “The use of legalese must be restricted to the minimum,” says Justice (retd) A S Aguiar, remembering the late Justice B Lentin of Bombay High Court as a role model for writing judgments. While lawyers themselves are guilty of using convoluted English, “they can still get away with it,” says Bhati. “But judges shape important decisions.”

The plurality of language in India makes judgment writing in English difficult for some, points out SC lawyer Karuna Nundy. “There is the desire to sound knowledgeable, and it’s this human impulse that must be resisted to create more certainty and clarity for those who must implement the law.”

Sometimes, the essence is lost in translation. Deshmukh, a family court lawyer, once came across a magistrate court judgment that said the husband would “beat beat beat” his wife, a literal conversion of the Marathi phrase, “maar maar maarla”. “Judges should also be trained in the basics of language and articulation,” feels Deshmukh. Institutes such as Bhopal’s National Judicial Academy (NJA) train professionals in judgment writing.

“The idea of using big words to sound important owes to our society’s “pre-modern hangup”, feels sociologist Dipankar Gupta, who finds judgments getting progressively longer since the 1980s. “To show how learned you are, you are expected to write a lot and go around in circles, even in examinations,” says Gupta.

To be sure, verbal indulgence in legal writing isn’t an Indian phenomenon.Years ago, Yale Law School professor Fred Rodell had criticised law reviews saying they reminded him of “an elephant trying to swat a fly”.

Ultimately , neither style nor content should delay justice. “We should ask ourselves if we are losing track of the end consumer of justice,” says Bhati, who realised the cost of verbosity when her tenant-client, a shopkeeper from rural Himachal, queried: “What was my fault?