"However, the learned counsel...cannot derive the fullest succour from the aforesaid acqueisence... given its sinew suffering partial dissipation from an imminent display occurring in the impunged pronouncement here at where within unravelments are held qua the rendition recorded by the learned Rent Controller..." This excerpt from a judgement of Himachal Pradesh High Court in 2016 is...
"However, the learned counsel...cannot derive the fullest succour from the aforesaid acqueisence... given its sinew suffering partial dissipation from an imminent display occurring in the impunged pronouncement here at where within unravelments are held qua the rendition recorded by the learned Rent Controller..."
This excerpt from a judgement of Himachal Pradesh High Court in 2016 is not relevant to this article except to invite the attention of readers towards the language used. Thankfully, this was set aside by Hon'ble Apex court on ground of convoluted English used.
The Supreme Court of India and many other eminent jurist across the world have been pressing time and again that judgements should be simple, lucid, apparent and obvious with detailed reasoning. Authors increasingly failed to understand what purpose the lengthy judgement with quotations of Salmond or HLA Hart serve when the same judgement can be concised justifiably. It is apt that judgements of constitutional courts act as stare decisis ( a law which all other courts are bound to follow), but it doesn't mean that courts are bound to add legal maxims ( which hardly any layman understands) and quotations or citation from western legal historians.
What is a Judgment?
Judgement is the statement given by the Judge, on the grounds of a decree or order. It is the end product of the proceedings in the Court. The writing of a judgment is one of the most important and time consuming task performed by a Judge. The making and the writing of a judgment and the style in which it is written, varies from Judge to Judge and reflects the characteristic of a Judge. Every Judge, of every rank has his own distinct style of writing. But the fact of the matter is that the reportable judgements from constitutional courts are written in such a language mixed with a Latin legal terminology that even advocates/ law students have to refer law dictionary, forget the common people of land. The judge, justice system, courts, judgements or decrees are all for the interest of general public at large. If the common man is not able to understand the reasoning or ratio of a judgement, then we are failing as a system.
Hon'ble Mr. Justice M.M. Corbett, Former Chief Justice of the Supreme Court of South Africa, recommended a basic structural form for judgment writing:
- Introduction section
- Setting out of the facts
- The law and the issues
- Applying the law to the facts
- Determining the relief including costs
- Finally, the order of the Court; and all these should be in very simple language which could be understood by the person standing last in the queue.
Length vs Brevity
The avoidable citations and quotations from historians make the judgement lengthy. In the era of advanced technology, when all the information including judgements are available at one click, people are reluctant to read the full judgement spread in thousands of pages. A perfect example can be seen in an order in the month of March 2015, when Justice Dipak Misra in the case of Priyanka Srivastava and Anr vs State of UP and Ors, had written what can be said to be as one of the longest sentences ever written in a Supreme Court judgement. He wrote a single opening sentence with 192 words. Length of documents does not attract readers rather brevity is loved. Brevity is the virtue of a wise man and is familiarized by those, who have clarity in mind. No one likes to read long judgments. Brief opinions are comfortable in reading. Shri Gurcharan Das in his article published on 03.10.2003 in the Times of India said, "Soon after he became Prime Minister, Winston Churchill wrote to the First Lord of the Admiralty to ask-Pray Sir, tell me on one side of the sheet of paper, how the Royal Navy is preparing for the war, Churchill knew that if he did not qualify his request, he would have received an unreadable 400 page report." Brevity is a great virtue, and nowhere more needed than in India.
Our Judges write judgements that are too long; our lawyers ramble on; our executives try to impress with lengthy memos; our politicians well try to get in a word. It can be safely said that lengthy judgements are not favoured.
Use of Latin principles
The number of law students that have studied Latin at school is quite meagre. The proportion which can understand Latin in the community at large is small. If the purpose of reasons for judgment is to communicate effectively with the various audiences, it is highly desirable that Latin expressions should be dropped or where still useful, these should be translated. Otherwise a barrier is placed between legal expression and an important section of the audience for whom the judgment is written. Such barriers serve only to alienate judges and lawyers from the community they serve. The usage of Latin as an illustration of classical learning is unnecessary. Learning can quite readily be demonstrated by those anxious to do so in other ways. Our judgements are read not only by the experts but also by persons, not so conversant with law. We have to make their task easy by writing in a language that is comprehensible. Use of Latin, foreign and difficult words is to be discouraged. Writing of judgments should be to express and not to impress.
It is often that advocates and judges use a peculiar cant and jargon of their own that no mortal can understand, which need to be avoided. After 70 years of Independence when we have fairly developed our own legal system then there is no point using Latin or foreign words.
Lets look at some of the illustrations and consider which one is better:
1.NEMO DEBET ESSE JUDEX IN PROPRIA SUA CAUSA.
2. NO MAN CAN BE JUDGE IN HIS OWN CAUSE.
The first one is in Latin and the second one is its English version. The author fails to understand what purpose would be served by writing in Latin which commoners would not understand.
Simple writing is the hallmark of a superior mind. It is the usage of plain and familiar word that catches the readers' attention. Legal expert, lawyers, judges or law students may understand the difficult words, but is is difficult for the readers. The layman may neither have patience nor time to consult the dictionary. The courts and Judges of India are respected all over the world due to their highest level of wisdom and intelligentsia. But when the general public finds it difficult to understand, the entire exercise becomes pointless.
Use of double/triple negatives:
One more major issue which the readers including the legal fraternity face while reading the judgements is the enhanced use of double or triple negative. Sometimes a sentence is framed with two or three negatives which compel the readers to engage their mental faculty in an exercise which could be easily avoided. In order to understand it, consider this example. A judge writes in his judgement: "I cannot say that I do not disagree with you."
The words "cannot," "not" and "disagree" all have negative meanings on their own. Because there are three of them in a single sentence, the sentence has a negative meaning overall. Saying "I do not disagree with you" would be positive, since it has only two negatives. Hence, inspite of doing the lengthy exercise of triple negative, it would have been better to simply say that I'm not agree with you.
Similarly, another illustration is proposed through an excerpt from the judgement of a Tribunal on a service matter. The Hon'ble tribunal was pleased to write in a para: 'A member who has no fewer than 25 years of credited service but has not yet attained the age of 60 years and is not eligible for retirement may not voluntarily retire early without first getting approval from the Board after filing a written application.'
The tribunal tried to accommodate all the things in single sentence with negatives creating chaos and confusion to readers. Now in this case, if the negatives are removed and it is split, the same can be written as follows:
'The members, ineligible for retirement, may voluntarily retire if they are:
● under the age of 60 years, and
● have at least 25 years of credited service.
This can only be done after getting approval from the board by filing a written application.'
I need not say, which one is better.
No doubt, judgment writing is an art. The wit and wisdom of a Judge reflects from his writings. In India, we had Justice Mukherjee, Justice Krishan Aiyer having an unparalleled skill of writing the judgements. Chief Justice Marshall of Supreme Court of USA is well known for his art of writings. All these Honourable Judges are respected because they impress the common people. The writings should be simple and split into smaller sentences as such unambiguous and lucid judgements will bring the common man more closer to the judicial system and will act as a bridge of trust between public and courts.
The author is a lawyer and may be reached at lawyer.harimudgil@gmail.com. Views are personal only.