Courts, couplets and the decoupling of law and complex, tangential language

This Independence Day, advocate Saif Mahmood asks an important question: Is the freedom to write a judgment carte blanche for judges to showcase their literary or linguistic prowess?

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IS the freedom to write a judgment carte blanche for judges to showcase their literary or linguistic prowess?

On a warm summer morning in 2018, I was holding the fort for senior counsel Salman Khurshid before a rather hostile Bench of the Delhi High Court. As soon as the Bench took a break, the counsel arrived and inquired about the proceedings.

When I told him that the judges seemed quite antagonistic, he asked if I could capture the situation in Urdu poetry. I recited Shuja Khawar's couplet:

Ho gaya is baat par sab munsifon main ittefaaq

Main laga patthar ko pehle, phir mujhe patthar laga

On this issue, all judges concurred

I struck the stone first, and then it struck me in return

He smiled and, when the Bench resumed, he told the judges that he wanted them to hear the couplet, particularly because it pertained to munsifs.

Justice Siddharth Mridul, who was presiding, remarked, "An Urdu couplet about a munsif can never be charitable to the munsif," and requested that I recite it.

I hesitated, as I typically avoid using poetry in court. However, when his brother judge, Justice Najmi Waziri, echoed the request, I had no choice but to recite the couplet.

Both judges shared a laugh and, after a lively repartee with us, suggested, "We should probably return to the counter affidavit." The courtroom atmosphere lightened significantly.

This was a rare instance where poetry was skilfully woven into court proceedings, serving its purpose effectively. The attempt succeeded because the counsel was aware of the judges' fondness for Urdu poetry— it was simply good advocacy. However, such instances are few and far between.

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The surging trend of judges showcasing their literary or linguistic skills— whether perceived or actual— in their judgments is deeply problematic.

I categorise such judgments into three distinct types: first, those that meander through extensive, unrelated discussions to flaunt knowledge of an unrelated subject; second, those characterised by convoluted or opaque language; and third, those that incorporate irrelevant literary references.

Lol and Order

Consider the first type. Last month, the Punjab and Haryana High Court granted bail to a woman accused of defrauding the state by claiming compensation for a non-existent tree.

In its seven-page bail Order, the high court used up more than four pages in deciding a completely irrelevant question, namely whether the full title of the code under which the bail application was filed, The Bharatiya Nagarik Suraksha Sanhita, could be abbreviated to 'BNSS'.

No one in their right mind would object to the name of a statute being abbreviated, much less challenge such an abbreviation before a high court, and no one did.

If one did, the challenge ought to have been thrown out at the threshold with exemplary costs. Nevertheless, the single judge chose to delve into a sprawling discourse on semantics and generously penned (or keyed) four pages on the art of abbreviations.

Ironically, his treatise begins with a call for brevity and concludes by endorsing "lol" as a legitimate abbreviation!

This is what he says: "A fad for brevity and convenience of usage led to the truncation and conciseness of long words, leading to the ever-increasing trend of abbreviations and their species of initialisms and acronyms, formal or colloquial, lol!"

Full stops are for laymen

Let us turn to the second category: judgments characterised by incomprehensible language. In August 2022, the Supreme Court set aside a judgment of the Himachal Pradesh High Court on the ground that it "found it difficult to navigate through the maze of incomprehensible language in the decision of the high court".

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Yet, it seems that the high court was only adhering to established precedent, if you may. Ironically, it was the Supreme Court itself that began its landmark judgment in Subramanian Swamy versus Union of India upholding the constitutionality of criminalising defamation with this perplexing 73-word sentence:

"This batch of writ petitions preferred under Article 32 of the Constitution of India exposits cavil in its quintessential conceptuality and percipient discord between venerated and exalted right of freedom of speech and 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."

The second sentence is even longer and more perplexing: it has 226 words.

Obiter dictaphone?

In the third category of judgments involving irrelevant literary references of which there is no dearth, I refer to just one: the Delhi High Court's bail Order for Kanhaiya Kumar, then President of the Jawaharlal Nehru University Students' Union, who was arrested under Sections 124A and 34 of the Indian Penal Code.

The Order begins with the refrain from the 1967 Hindi film song, "Mere desh ki dharti sona ugle, ugle heere moti" (the soil of my country yields gold, produces diamonds and pearls).

Instead of confining herself to the facts and legal principles, the single judge chose to lecture the petitioner on nationalism, chastising him for his perceived lack of patriotism.

The veneer of complex language

All these examples demonstrate that while a well-read judge is admirable, judicial opinions should not serve as a personal space for exhibiting linguistic or literary flair. Such digressions can obscure legal arguments, complicate the issues at hand, and squander valuable judicial time and resources.

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At its core, judgment writing serves as a mechanism for articulating the court's interpretation of the law and its application to the facts of the case being decided. It serves two crucial functions: reflecting judicial reasoning and providing a formal record of the court's deliberative process, both designed to offer clarity and rationale for the decision reached.

The effectiveness of a judgment relies on its capacity to balance legal precision with accessibility, ensuring that complex legal principles are conveyed clearly to both legal professionals and the general public.

While setting aside the Himachal judgment mentioned above, the Supreme Court, speaking through Justice Dr D.Y. Chandrachud (as he then was), eloquently explained the purpose of judgment writing and went so far as to proclaim that poor judicial writing erodes public trust in the judiciary:

"The purpose of judicial writing is not to confuse or confound the reader behind the veneer of complex language. The judge must write to provide an easy-to-understand analysis of the issues of law and fact that arise for decision.

"Judgments are primarily meant for those whose cases are decided by judges. Confidence in the judicial process is predicated on the trust which its written word generates. If the meaning of the written word is lost in language, the ability of the adjudicator to retain the trust of the reader is severely eroded."

Judicial opinions are not meant to serve as essays on linguistics or literature. Although literary and linguistic elements may, in some cases, enhance clarity or evoke empathy when judiciously employed, their use should be carefully constrained to serve the legal arguments effectively.

Navigating the rabbit hole

In his celebrated dissent in Liversidge versus Anderson, Lord Atkin had famously invoked Alice in Wonderland to take a swipe at his colleagues, calling them a "Humpty Dumpty" majority.

The House of Lords was called upon to interpret a clause in the UK Defence Regulations that empowered the Secretary of State to detain a person if he "has reasonable cause to believe" that person to be of hostile origin or association.

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The question was whether "if the Secretary of State has reasonable cause to believe" could be read as "if the Secretary of State 'thinks' he has reasonable cause to believe". The majority was of the view that it could be so read.

Lord Atkin vehemently dissented and averred that he knew only one 'authority' that might justify the method of construction: "'When I use a word,' Humpty Dumpty said in rather scornful tone, 'it means just what I choose it to mean, neither more nor less.'

"'The question is,' said Alice, 'whether you can make words mean different things.' 'The question is,' said Humpty Dumpty, 'which is to be master that's all'."

Lord Atkin added, "After all this long discussion, the question is whether the words 'If a man has' can mean 'If a man thinks he has'. I am of the opinion that they cannot, and that the case should be decided accordingly."

Atkin's powerful reference to Alice in Wonderland, though criticised by some scholars as unnecessary, turned out to serve his legal argument rather effectively. His dissent was vindicated later, with many Law Lords agreeing with it. But every judge is not Atkin, nor needs to be one.

50 million cases, brief?

Many years ago, at a literature festival in Delhi, I asked Justice Aftab Alam of the Supreme Court, a great Urdu poetry afficionado, if he had ever used poetry in his judgments. He recounted doing so once but never again, after a senior lawyer friend privately questioned whether the couplet he had used made any difference to his ruling or could be contested on appeal.

The concept of judicial restraint underscores the virtue of humility in judges, extending beyond mere respect for the roles of other branches of the State. It entails confining judicial decisions to the specific issues before the court and refraining from exceeding their proper limits.

This approach promotes stability and predictability in the judicial system by ensuring that decisions are based on established law rather than personal biases, thereby safeguarding democratic processes and bolstering public trust in the judiciary.

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The case of India is even more peculiar. Given that we have more than 50 million cases pending, any indulgence in luxury or ornate writing from the Bench ought to be strictly eschewed.

I began with a court story and I will conclude with one. In 1820, as George IV ascended the throne, he urged the Parliament to pass a Bill to strip his wife, Queen Caroline, of her title and dissolve their marriage. Defended by the renowned Henry Brougham, Queen Caroline received a stirring opening statement before the House of Lords on October 3, 1820.

Blossom cut off from the root

In light of our judges' evident fondness for linguistics, I take a leaf from Justice Chandrachud's remarks in the case cited above about erosion of public trust and, with utmost humility, offer a few words from that historic address:

"My lords, I pray your lordships to pause. You are standing upon the brink of a precipice. It will go forth your judgment, if it goes against the Queen. But it will be the only judgment you ever will pronounce which will fail in its object and return upon those who give it.

"Save the country, my lords, from the horrors of this catastrophe— save yourselves from this situation— rescue that country, of which you are the ornaments, but in which you could flourish no longer, when severed from the people, than the blossom when cut off from the root and the stem of the tree."