All over the world, the extensive use of this tool is seen as an attempt to make judgments more readable and crisp. In India, the footnote is slowly finding its feet in the Supreme Court
By Devadatt Kamat
The art and the science of effective judicial writing have not received much importance or attention in India. A familiar complaint made against judgments by lay persons and lawyers alike is the sheer monotony, verbosity and length of judgments. Facts, precedents, legal propositions and conclusions all rolled and jumbled into one long saga of continuous narration. Several attempts have been made the world over to make judgments more readable and crisp. One such attempt has been the extensive use of the tool of footnotes.
Footnotes as a writing device have been in vogue since 1568 when one Richard Jugee used a footnote for the first time to effectively manage limitations of space.1 The practice of using footnotes to make judgments more readable is of rather recent origin. In jurisdictions such as the US, there have been a massive proliferation of the use of footnotes in judicial decisions. However, their use in judgments in India has been rather minimal. Traditionally, in Indian judicial decisions, footnotes are used only to indicate the citation or the source material relied upon in the main body of the judgment. However, for the last couple of years, there appears to be a growing trend among some judges of the Supreme Court (although a minority) to incorporate substantial material of their judgments in the footnote itself.
A familiar complaint made against judgments by lay persons and lawyers alike is the sheer monotony, verbosity and length of judgments. Facts, precedents, legal propositions and conclusions all rolled and jumbled into one long saga of continuous narration.
A cursory glance at the writing style of some present judges throws some interesting light in this regard. Justices Chelameswar, Madan B Lokur, AK Sikri and UR Lalit of the apex court all use footnotes to quote provisions of law and even past precedents. Justice Chelameswar, in particular, extensively uses footnotes not only to record provisions of law and precedents but also extracts of pleadings and includes some of his own observations in the footnote itself. For instance, in his latest judgment in Sasan Power Ltd Vs North American Coal Corporation2, on the interpretation of the provisions of S.45 of the Arbitration Act, 1996, the learned judge expresses his displeasure at bad drafting of a clause in the agreement in a footnote (FN 13) and observes: “whether it is a typographical error in the copy supplied to us or in the original plaint itself or the draftsmen’s error – god only knows!”. The said judgment is interspersed with 37 copious footnotes.
MERITS & DEMERITS
The device of quoting a substantive portion of a judgment in footnotes has its own merits and attendant demerits. Footnote proponents argue that it makes the task of the reader less cumbersome. The lesser important ideas and references to sources are put at the end of the page so that the harmony and the flow of thought of the author are not disturbed. On the other hand, quoting observations of a judge in a footnote may raise issues as to the precedential value to be given to such observations.
For the last couple of years, there appears to be a growing trend among some judges of the Supreme Court (although a minority) to incorporate substantial material of their judgments in the footnote itself.
In jurisdictions like the US, use of footnotes in judicial decisions, though more prevalent, have been severely questioned. For instance, is the material in a footnote of a judgment as authoritative as the body of the judgment? There seems to be a divergence of opinion on this. Chief Justice Charles Evans Hughes of the Supreme Court of the United States once declared: “I will not be bound by a footnote”3. In United States V Dixon4, the US Supreme Court commented upon a footnote in Brown v. Ohio, and referred to it as “suspect” being in conflict with the text of the judgment. One federal appellate judge, Abner J Mikwa, had sarcastically remarked to a legal newspaper that “if God had intended us to use footnotes, He would have put our eyes in vertically instead of horizontally”5. On the other hand, Jack L Landau of the Oregon Supreme Court argues that “the precedential force of pronouncements does not vary with the size of the typeface with which they are expressed6”.
In India, there has hardly been any debate on the use of footnotes as a drafting tool in judicial pronouncements (like any other facet of judicial writing). Whether footnoting as a tool for judicial writing ought to be resorted to in India is a conundrum worth a debate. But for now, the footnote seems to be slowly finding its feet in our Supreme Court.
—The Author is Additional Advocate General, Karnataka, and a
practicing lawyer in the Supreme Court. Views are personal.
1 The Devil’s details: A history of footnotes, Chuck Zerby
2 2016(8) SCALE 225, delivered on 24.08.2016
3 Footnote Folly, A history of citation creep in the law, Jack J Landau https://www.osbar.org/publications/bulletin/06nov/footnote.html
4 432 U.S. 161 (1977)
5 At the Bar; The footnote fetish in Judicial Opinions, David Margolick http://www.nytimes.com/1991/01/04/news/bar-footnote-fetish-judicial-opinions-weather-vane-high-court-philosophy.html
Lead picture: Supreme Court. Photo: Anil Shakya