The article is authored by Anshika Agarwal, pursuing B.A. LLB from VIPS, GGSIPU. The author sets forth the trend of verbosity prevalent in the judgements since 1950. The article analyses certain case judgements on account of their writing style, syntax and length to answer the questions on the need of verbosity. The article attempts to reach a definite conclusion on the basis of these critical analyses substantiated with the opinions of some of the eminent jurists.
Table of Contents
Introduction
What if the 9 Judges Bench in the case of Keshavananda Bharti v. State of Kerala, established the basic structure doctrine in some 10 to 20 pages instead of producing a hefty judgement of around 500 pages? What if the pronouncement on the decriminalisation of Section 377 in the case of Navtej Singh Johar v. Union of India & Ors. was not as long as 500 pages? It would have been delightful, isn’t it?
The legal world would have become a lot more approachable and easier to avail by the masses. The lawyers would be at a huge relief for a great deal of time invested in sorting and researching would be saved. The law students would be exempted from the struggle of reading the tedious judgements just so as to ace academically. Lastly, the culture of unnecessarily using complex and flowery vocabulary would come to a halt.
However, when the topic of the need for verbose judicial pronouncements comes up, we need to look at a broader and a graver aspect of it. The effect that such judgements have on the entire judicial and administrative system needs to be closely monitored in order to determine their necessity. The prime consideration should be whether the volume of the words is adding any actual sense to the judgement or is unnecessarily burdening it.
Verbosity: a need or a temptation
The Indian Judicial system has witnessed hefty judgements since its very inception. Since 1950, the Judiciary has come up with nearly 40,000 judgements exceeding 100 pages. The 1973 Keshavananda Bharti’s judgement accounting for 676 pages, the 1981 and the 1993 judgements of the 1st and the 2nd Judges case extending up to 600 and 180 pages respectively, the 2016 judgement in the defamation case of Subramanian Swamy (Subramanian Swamy & Ors. v. Union of India) exceeding 200 pages are some of the widely reckoned verbose judgements delivered by the Judiciary.
The Judiciary, however, set a record with a 1045 pages judgement in the 2019 Babri Masjid case (M Siddiq v. Mahant Suresh Das & Ors.).
Amidst all, the technological and digital developments with a plethora of internet resources, have played a role in aiding the judges to write hefty judgements without much of a trouble. The judgements crossing a 100-page mark have now become a routine trend.
The topic has lately observed a multitude of debates and discussions. Eminent jurists and legal pioneers have adopted some very strong viewpoints in this regard. The Supreme Court too has released guidelines over the matter, from time to time.
Jurists and their opinions
The practice of incorporating more and more complex words just to embellish the judgements making them hefty has observed criticisms worldwide. Indian jurists too have condemned it, calling it a temptation or a flexing culture. The unreasonable use of words without adding any real meaning to the judgement is likely to be misinterpreted or misread by the lawyers and the common people.
In this regard, Mr Upendra Baxi, Professor of law at the University of Warwick and University of Delhi said, “ A judgement should unite reasoning and decision”. He further observed that the unchecked use of flowery language to an extent that it becomes almost incomprehensible for the reader, should not be promoted. He pointed out the unreasonably lengthy and verbose judgements leading to befuddled interpretations of the law. H.L.A Hart, Professor of Jurisprudence at the Oxford University, held a similar view. He emphasized on the acute need of brevity and concision as the primary elements for writing a sound judgement.
Based on many such opinions, we can not view the issue of verbosity as neutral. It has far-reaching effects on the clarity, interpretation and the understanding of the law and reasoning associated with it. Several judgements of the lower courts have been rejected by the higher judiciary on this ground. The quality of some of the constitutional landmark judgements too has been put into question and has attracted a plethora of criticisms, owing to their verbose nature.
What makes a judgement verbose
A judgement can exhibit verbosity in many forms and aspects. The length of the judgement, though important, is not the sole criteria to judge its quality. The kind of language, words, citations and examples used, are equally important. A Judge should exercise optimum expertise and care while using them. Now, let us look as to how these elements add to the verbosity of the judgements.
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Quoting Literature
Quoting literary proficients has lately become a part and parcel of the judgements. Most of the Judges find this as the most opportune way to adorn the judgements and upgrade their quality. The literary works of Shakespeare, Oscar Wilde, John Stuart Mill, Vikram Seth, Amartya Sen and many others, have often found their way in the judicial pronouncements. This indeed has added to the quality, providing us with some of the highly influential judgements.
The judgement delivered by D.Y. Chandrachud in the case of Justice K.S. Puttaswamy v. Union of India, incorporating the right to privacy within the wide ambit of Article 21, is one such praiseworthy articulation. The 686 pages judgement, though lengthy, is a well-structured unison of law, reasoning and decision. Justice Chandrachud has quoted the works of Prof. Amartya Sen to substantiate the reasoning, and it would be safe to conclude that it blends in well.
While focusing on the aspect of privacy, the Honourable Judge relies upon Sen’s The Ideal Of Justice and quotes, “In the Indian context, Sen points out that the Bengal famine of 1943 “was made viable not only by the lack of democracy in colonial India but also by severe restrictions on reporting and criticism imposed on the Indian press, and the voluntary practice of ‘silence’ on the famine that the British-owned media chose to follow”, Political liberties and democratic rights are hence regarded as ‘constituent components’ of development.” The judgement further uses excerpts from Sen’s writings in his The Country of First Boys (Oxford University Press, 2015) to illustrate the relationship between development and freedom.
However, criticisms follow when judgements are unreasonably burdened with a lot of literary excerpts. When the reasoning and the decision are sufficient to communicate the law established, quoting literature only adds to the verbosity, making judgements vulnerable to misinterpretations.
The judgement authored by Justice Deepak Mishra in the celebrated case of Navtej Singh Johar and Others v. Union of India scrapping Section 377, has garnered criticisms on this account. The judgement accounting for 495 pages, is crowded with the excerpts from the works of Shakespeare, Wilde, John S. Mill and other thinkers. The initial paragraphs of the verdict exclusively deal with the quotes from German thinker Johann Wolfgang von Goethe, Arthur Schopenhauer and Shakespeare. This insane flex of literature only multiplies the complexity of the judgement leaving the readers all perplexed.
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Floridity
The use of ostentatious vocabulary to ornament the grammar and the syntax of the judgement to make it appear appealing is yet another routine trend. This practice is termed as floridity.
Justice V.R. Krishna Iyer has often been praised for his command over English grammar and vocabulary. The judgements rendered by him have often been looked upon for their influential and well-structured language. Judgement like Commissioner of Income Tax v. T.N. Aravinda Reddy 1979, reflects his skilled articulation and wordplay. It exhibits pure art, compiling hundreds of pages of statutory interpretation into 2 pages. His compassion for poetry and his linguistic romance comes to light when he concludes the judgement by quoting, “A point of suffocating scholarship sometimes arrives in court when one nostalgically remembers the escapist verse “Where ignorance is bliss’ Tis folly to be wise.”
The floridity, however, takes the form of syndrome when there is an irregular and unbalanced use of vocabulary. Most of the judgements have been flawed with flowery language which goes beyond human comprehensibility. In this regard, Mr Baxi has opined that Judges should use plain and basic language. He further believes that a judgement should be formulated in such a way that one should not be requiring a dictionary to read it.
The judgement delivered by Justice Deepak Mishra on the constitutionality of Section 499 in the case of Subramanyam Swamy and Others v. Union of India is one such specimen of erroneous flowery syntax. It has observed a high influx of criticisms on account of its convoluted language.
The very first paragraph of the judgement that reads as, “This batch of writ petitions preferred under Article 32 of the Constitution of India exposits cavil in its quintessential conceptuality and percipient discord between [the] venerated and exalted right of freedom of speech and [the] expression of an individual, exploring manifold and multilayered, limitless, unbounded and unfettered spectrums, and the controls, restrictions and constrictions, under the assumed power of “reasonableness” ingrained in the statutory provisions relating to criminal law to reviver and uphold one’s reputation.”, serves as a baffling riddle to the lawyers. The insane use of words like “exposits cavil”, “quintessential”, “percipient”, “venerated”, “unfettered” in a single sentence has only added to its incomprehensibility.
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Repetition of concurring views
Another inconsistency that adds to the verbosity of the judgements is the repetition of the concurrent views. The judgements have often been seen reporting the individual opinions of each Judge even when the Bench has unanimously agreed on the matter. This adversely affects the quality of the judgements making them monotonous and insensitively lengthy. The same view projected in the paraphrased sentences only makes it befuddling for the readers.
The verdict delivered by the 9 Judges Bench in the case of Justice K.S.Puttaswamy v. Union Of India confirming the right to privacy under Article 21, reflects one such inconsistency. Despite the unanimous nature of the verdict, it observed six separate concurring judgements. The main judgement authored by Justice D.Y. Chandrachud incorporated the sayings of Justice Khehar (the then CJI), Justice R.K. Agarwal and Justice Abdul Nazeer and Justice Chandrachud himself. While the remaining 5 judges namely Justices Chelameshwar, Bobde, Sapre, Nariman and Kaul authored their separate judgements. The verdict hence, observed plurality in opinions with no apparent fundamental difference in the reasonings. The judgement despite its constructive nature and balanced use of words, attracted criticisms on the grounds of verbosity owing to its concurrency.
Conclusion
Sound judgement is a perfect blend reasoning and law communicating conclusions in a clear and an unambiguous way. Jurists and thinkers have constantly emphasised on the need for brevity and clarity in the judgements. The Supreme Court too has proposed that an appropriate amount of care needs to be taken with respect to the length of the judgements.
The language used is another aspect that determines the verbosity and the quality of judgements. It should be simple and plain instead of being fictitious or satirical. The basic rules of grammar should be complied with in order to avoid any sort of perplexity from the readers’ end.
Writing judgements hence is not less than an art. It gets better with time, practice and experience. The Judicial system has observed some of the praiseworthy and highly influential judgements, adding to the betterment of the society. Sound, brief and error-free judgements play a crucial role in the furtherance of glitch-free deliverance of justice. Justice that is not misunderstood or misinterpreted but is clearly comprehended, is the dire need of the society at large.
Concluding in the words of Justice Krishna Iyer, ” The Justice system ceases to be functional if courts do not make the technology of statutory construction serve the betterment of the society.”
References
- https://www.researchgate.net/publication/305760450_The_country_of_first_boys_by_Amartya_Sen_Oxford_University_Press_New_Delhi_2015_276pp_index_1499_ISBN_978-0-19-873818-3
- https://www.sci.gov.in/pdf/JUD_2.pdf
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