Minding the language of justice: Justice Chandrachud’s comment on simplicity in court couldn’t have come sooner

In Ajit Mohan vs NCR Legislative Assembly, decided in July last year, another brilliant judge of the court, Sanjay Kishan Kaul, had said more or less the same things about counsels’ written submissions in appeals. Such submissions serve as feeders for extraneous material in court judgments which incorporate long abstracts from them. This practice makes the judges’ work easier but leaves the litigants in the lurch, sometimes leading to frivolous litigation which, in the words of the new Chief Justice of India, U U Lalit, puts “additional burden on an already burdened judiciary”.

Some learned judges have been known for their oratorical skills, expressed through the use of deeply philosophical or literary expressions in their judgments. Most well-known for this phenomenon was the late V R Krishna Iyer. The opening paragraph of his judgment in the Fuzlunbi case (1980) begins with the words “Twixt Tweedledum and Tweedledee (characters in an old nursery rhyme)” and talks of “karuna and samata (compassion and equality) of the law.” An Australian judge Michael Kirby said about him: “The power of his oratory is likened to the hypnotic capacity of music to capture the attention of the cobra, transfixing us by the majesty of language and the manifest sincerity of his ideas.” An Indian judge Yatindra Singh wrote: “Many a time Justice Iyer’s contribution to jurisprudence has been lost due to his language.” Trying to imitate Iyer’s inimitable style some judges of our times make their judgments awfully irritating.

Victorian English beyond law students’ understanding is not the only phenomenon impairing court judgments. Shakespeare had said in The Tragedy of Hamlet that “brevity is the soul of wit” but the observation eminently applies also to court judgments. This sine qua non for the effective dispensation of justice is often overlooked by judges. There is an inexplicable tendency to stuff judgments with obiter dicta, unnecessary and sometimes irrelevant, which makes them unduly long and even unintelligible. Judgments are written as if the writer-judge has to prepare a doctoral or postdoctoral thesis on the legal issue involved in the case. Higher courts of the country which, under our constitutional and judicial system, have to provide precedents to be followed by the lower judiciary often seek precedents for their decisions in foreign judgments by copying longish extracts from them. Further, cases that should be decided exclusively on the authority of the Indian Constitution and law are sometimes decided with reference to religious texts.

In the recent Shayara Bano case on triple talaq (2017) the learned CJI of the time wrote about 300 pages to reach the indefensible conclusion that the abominable practice was covered by the constitutionally protected fundamental rights of the citizens. Yet, contrary to this misbelief, he chose to stifle that “right” by issuing an impracticable order of “injuncting Muslim husbands from pronouncing talaq-e-biddat as a means for severing their matrimonial relationship”. Two other learned judges on the Shayara Bano bench rightly dissented from his belief in the supposed constitutional cover for the anachronistic practice but the final order, based on their views – “the practice of talaq-e-biddat, triple talaq, is set aside” — also left much to be desired in respect of its meaning and implications.

Some learned judges of the country’s higher courts have innovated a new style of writing judgments with the lavish use of Urdu poetry which non-Urdu speaking lawyers and litigants hardly understand. In a PIL relating to the plight of an Indian prisoner in a Pakistan jail, former Supreme Court Justice Markandey Katju had concluded his judgment with Faiz Ahmad Faiz’s famous couplet beginning with the words “Qafas udaas hai yaro saba se kuchh tou kaho” (prison is sad, friends, say something to the breeze). In another appeal, relating to police excesses, Katju alluded to another line of the great poet, “Baney hain ahl-e-hawas muddayi bhi munsif bhi; kise vakil karen kis se munsifi chahen” (gluttonous are both the petitioners and the arbiters, who to seek advice from, where to look for justice). An income tax appeal filed by a noted lawyer was dismissed by a Delhi High Court judge Rajiv Shakdhar citing a couplet of the great Ghalib: “Dil-e-nadaan tujhe hua kya hai; aakhir iss dard ki dawa kya hai” (what has happened to you, O foolish heart, what after all is the cure for this pain). I wonder whether the litigants in any of these cases understood what the judges wanted to convey through poetry and what purpose of justice this flair for Urdu poetry would have served.

The exhortation of Justice Chandrachud about the pressing need for simplicity and meaningfulness in court judgments has not come a moment too soon. I can only say three cheers for the learned judge who I have known since his student days in Delhi University where I taught law for three decades. Last year, when hearing an urgent bail appeal as a vacation judge, he had alerted the custodians of state authority: “If the State targets individuals they must realise that the apex court is there to protect them.” A great promise indeed, rejuvenating confidence in the court’s capacity to safeguard people’s human and constitutional rights. The nation will look forward to him for even more important and long-awaited redresses than his timely reprimand about linguistic idiosyncrasies in court judgments.

The writer is Professor of Law & ex-member, Law Commission of India