By Lokendra Malik and Prof Yogesh Pratap Singh
Last week, in Ajit Mohan vs Legislative Assembly, Delhi, the Supreme Court observed that judgments should be more crisp, clear and precise so that the common man can understand the law being laid down by courts easily. In addition, the Court stated that lawyers should finish their arguments within a short time and avoid citing unnecessary precedents.
“We do believe that there needs to be clarity in the thought process on what is to be addressed before the Court. Counsels must be clear on the contours of their submissions from the very inception of the arguments. This should be submitted as a brief synopsis by both sides and then strictly adhered to,” the Court said. It added that much as the legal fraternity would not want, restriction of time period for oral submissions is an aspect which must be brought into force. “We really doubt whether any judicial forum anywhere in the world would allow such time periods to be taken for oral submissions and these be further supplemented by written synopsis thereafter. Instead of restricting oral arguments it has become a competing arena of who gets to argue for the longest time.”
This is a timely suggestion that must be taken seriously by all courts of law. As per Article 141 of the Constitution, the law declared by the Supreme Court becomes the law of the land, but this is confined only to a privileged class of lawyers and academicians who can understand the judgment. Nowadays, it has become a fashion to deliver lengthy judgments, particularly in constitutional cases that cannot be easily understood by the people because of their length and repeated observations by the judges.
Admittedly, the main purpose of judgment writing is to convey the interpretation of the law as clearly as possible not only to the parties in litigation but to the people at large. If the reader stays engaged and possibly entertained, that is much better. If the reading is easy and effortless, that’s a sign of good writing. If the reader drops off in the middle or struggles to comprehend, something is amiss and the courts cannot ignore it. As the Supreme Court decides the legal destiny of the nation, it owes a big responsibility to lay down the law in clear terms so that other courts can follow the same easily.
Notably, the Supreme Court’s judgment in Kesavananda Bharati (1973) that propounded the Basic Structure Doctrine which ran into700 pages was difficult to comprehend. This was followed by the S.P. Gupta case (1981) which was 830 pages. However, during the last few years, the Supreme Court has broken its own record of writing the longest verdict. It seems there is a competition among the judges to make new records in writing long judgments. The NJAC judgment (2015) had 1,042 pages; the Aadhaar judgment (2018) in the Puttaswamy case had 1,448 pages; the Ayodhya judgment had 1,045 pages. This list is not exhaustive. But who reads these commodious judgments? These are very important judgments that must be brought to the knowledge of people as they affect our socio-political system deeply.
It is a matter of fact that the modern Google era has adversely affected the reading habits of people as they do not have much patience to read long documents, books and judgments. Digital reading has become the new normal. Even lawyers, judges, professors and law students whose profession demands serious reading, hardly spare much time in reading books and articles which provide them intellectual diet to develop their academic skills. Gone are the days when people used to sit in libraries for hours.
In present times, disciples of Google Guru like quick, short and easy reading as they are also part of the same global Google community that searches everything on its search engine. With this kind of readership, lengthy judgments will result in half-knowledge. This is hazardous for the legal profession. Should not judges consider all these factors while authoring their opinions?
Not only this, lengthy judgments do not serve any purpose. Rather, they create more confusion and bring inconsistency in case laws. A five-judge bench was created in the case of Islamic Academy of Education (2003) to explore the true import of the 11 judge-bench’s long judgment of TMA Pai (2003) but miscarried, and finally a seven-judge bench in P.A. Inamdar (2005) resolved it.
Long judgments also became an avenue for the legal profession to play with the justice delivery process by citing irrelevant portions and hiding the relevant parts. The observations made by the Supreme Court in the Ajit Mohan case must be taken seriously by all the courts of law. It would be helpful for promoting more constitutional and legal literacy in the country.
A question comes to my mind: why do judges write so much? The primary justification may lie in the fact that Constitution permits every judge to write his own opinion (concurring or dissenting). But what is distressing is that when judges agree, they do not critically engage with the views of their colleagues.
In a majority of cases, it becomes hard to decrypt the precise law from the discordant viewpoints. The unanimous privacy judgment (9:0) pitched six separate but concurring opinions, each offering a different test to define the contours of the right to privacy, resulting in a long judgment which could be misunderstood.
Similarly, in NCT Delhi case, three separate concurring opinions with substantial agreement on all important issues eventually increased the number of pages (535), led to effort in reading and the likelihood of misperceptions.
The erudite concurrence of Justice Krishna Iyer in Shamsher Singh (1974), Justice Mathew in Sukhdev Singh (1975) and Justice Hidayatullah and Justice Mudholkar in Sajjan Singh (1965) have immensely contributed to the development of law and are cited more often than the majority views.
But the current trend, especially in high-profile cases, lacks substance.
This practice should be changed and judges should contribute meaningful concurring opinions. Judgments of the UK and the US Supreme Courts, which Indian judges are fond of, are illuminating.
The verdict in the Parliament Prorogation case (2019) by the UK Supreme Court had only 24 pages. The Marbury vs Madison (1803), that explained the doctrine of judicial review, had just 18 pages, while the leading Texas vs Johnson (1989) on free speech in the context of the right to burn the American flag was 43 pages. The judgment in Lawrence vs Texas (2003) that decriminalised sodomy in the State of Texas had only 49 pages. These judgments are unlike Indian judges who used 493 pages to deal with similar questions in Navtez Singh Johar case (2018). Another landmark judgment, Roe v. Wade (1973) dealing with abortion rights, used just 66 pages to communicate the law.
So, what should be done to generate people’s interest in reading judgments? The judges may be convinced to write short opinions by focusing on facts, issues involved, arguments raised, relevant case laws and the judicial analysis that could be cited as an authority to justify the basis of their judgments. Unnecessary citations, repetition of cases, excessive foreign precedents, lengthy academic references and superfluous literary rhetoric may be eluded.
Academic writings have persuasive value in the judicial decision-making process and therefore, writings of highly eminent scholars/jurists are worthy of citations. Similarly, a literary device may be restrictively used to increase communion with one’s audience and not to show off verbal dexterity and cultural knowledge in the judgment.
No judgment is immune from critical analysis and it is difficult for judges to please both parties in a case. Mostly, one party is always a loser and the loser has no option but to criticise the verdict. Justice HR Khanna has rightly said that the function of a judge while deciding a case is not the same as that of a research scholar writing a thesis on a particular branch of law. Other judges have also expressed similar views.
Every judge is unique and therefore, he should not try to emulate Krishna Iyer or Lord Denning who developed distinct styles of judgment writing. In his book Family Story, Denning states: “I start my judgment, as it were, with a prologue – as the chorus does in one of Shakespeare’s plays – to introduce the story. Then I go on from act to act as Shakespeare does – each with its scenes – drawn from real life.”
Brevity, simplicity, and clarity are the essentials of good judgment. It is high time that Indian courts look into this problem and make sustainable reforms to improve the quality of judgments.
—Lokendra Malik is an Advocate, Supreme Court, and Professor Yogesh Pratap Singh is from National Law University, Odisha