Introducing the Problem
The Supreme Court of the United Kingdom delivered a brilliant judgment in Parliament Prorogation case [(On the Application of Miller v. The Prime Minister (Respondent) Cherry and Others (Respondents v. Advocate General for Scotland (Appellant)] on 24 September 2019. In a judgment of around 24 pages, the U.K. Supreme Court ruled that Prime Minister Borris Johnson’s advice to the Queen regarding the prorogation of Parliament for five weeks was unlawful. The unanimous judgment from 11 judges of the U.K. Supreme Court followed an emergency three-day hearing dealing with many significant issues and the judgment was pronounced just five days from the closing of the arguments. Appreciated across jurisdictions, the UK Supreme Court verdict offers valuable lessons especially for Indian Supreme Court Judges who suffer from obscure prolixity and floridity syndrome.
As per Article 141 of the Constitution, the law declared by the Supreme Court becomes the law of the land but the understanding of such law is confined only to a privileged class of lawyers and academics who can understand the judgment. The purpose of judgment writing is to convey the interpretation of law as clearly as possible not only to the lawmen and women but also to the common people. If the reading is easy and effortless, that’s a sign of good writing. If the reader drops off in the middle or struggles to comprehend, something is amiss.
The Kesavananda Bharati case (1973), which conceived the basic structure doctrine in 700 pages was followed by the S. P. Gupta case (1981) that had roughly 830 pages. However, in the last few years, there seems to be a fashion and competition amongst judges to make new records in terms of writing long judgments. The NJAC judgment (2015)-1042 pages; the Aadhar judgment (2018) in Puttaswamy case-1448 pages and Ayodhya judgment had 1045 pages. The list is not exhaustive.
Who reads these commodious judgments? Modern Google era has adversely affected the reading habits of people and consequently, people do not have the patience of reading overlong documents, books, judgments, etc. E-reading has become the new normal. Disciples of Google Guru like quick, short and easy readings as they are also a part of the same global Google community that searches everything on the search engine. With this kind of readership, lengthy judgments will produce half knowledge, which is hazardous for the legal profession. This is why there is an urgent need to discontinue this trend of lengthy judgments.
It is a matter of fact that long judgments hardly serve any purpose and instead create more misunderstanding alongside generating inconsistency in the case laws. A five-judge bench of the Supreme Court was constituted in Islamic Academy of Education (2003) to explore the true import of the 11 judge-bench judgment of TMA Pai (2003) but miscarried and finally a 7 judges-bench in P.A. Inamdar (2005) apparently resolved the problem. Long judgments become a potential paradise for the members of the legal profession to play with justice delivery process by citing irrelevant portions and hiding the relevant parts.
The Big Question
Why then, do our judges write so much? The primary justification may lie in the fact that the Constitution permits every judge to write their own opinion (concurring or dissenting), but what is distressing is that even when judges agree, they do not critically engage with the views of their colleagues. In majority of the cases, it becomes hard to decrypt the precise law from the discordance of different opinions especially when all of them seem to be saying the same thing.
The unanimous privacy judgment (9:0) pitched six separate but concurring opinions, each offering a different test to define the contours of the right to privacy, resulting in a long judgment with the potential to generate misunderstanding. Similarly, in NCT Delhi Case (2018) three separate concurring opinions with substantial agreement on all important issues eventually increased only the number of pages (535 pages).The erudite concurrence of Justice Krishna Iyer in Shamsher Singh (1974), Justice Mathew in Sukhdev Singh (1975), and Justice Hidaytullah and Justice Mudholkar in Sajjan Singh (1965) have enormously contributed to the development of law and are cited more often than even the majority views. But, the current concurring trend especially in leading cases lacks substance. In concurring judgments, it is expected that the judges would add something new and valuable that has not been said by other judges in the judgment.
Even the US Supreme Court’s judgments to which Indian judges very fondly refer, teach a lesson in this regard. The verdict in the landmark case of Texas v. Johnson (1989) which dealt with free speech in the context of the right to burn the American flag, had just 43 pages. The judgment in Lawrence v. Texas (2003) that decriminalized sodomy in the State of Texas had only 49 pages. On the other hand, Indian judges used 493 pages to deal with similar questions in Navtej Singh Johar case (2018). Another landmark case, Roe v. Wade (1973) which dealt with abortion rights, used just 66 pages to communicate the law.
Generating Interest: Some Suggestions
How to generate people’s interest in reading judgments? The judges may be convinced to write short opinions by focusing on facts, issues involved, arguments raised, relevant laws, relevant case laws, and the judicial analysis that could be cited as an authority to justify the basis of their judgments. Unnecessary citations, repetition of cases, excessive foreign precedents, lengthy academic references and superfluous literary rhetoric may be eluded. Academic writings have persuasive value in the judicial decision-making process and therefore writings of highly eminent scholars/jurists are worthy of citations. At the same time, unnecessary or repetitive citations need to be avoided. Similarly, a literary device may be restrictively used to increase communion with one’s audience and not to show off verbal dexterity and cultural knowledge in the judgment. Justice H. R. Khanna rightly stated that the function of a judge while deciding a case is not the same as that of a research scholar writing a thesis on a particular branch of law (H. R. Khanna, Judiciary in India and Judicial Process, Tagore Law Lectures, 1985). Some other judges have also expressed similar views.
Judges should not try to emulate Justice Krishna Iyer or Lord Denning who developed a distinct style of judgment writing. In his book Family Story, Denning states ‘I start my judgment, as it were, with a prologue – as the chorus does in one of Shakespeare’s plays – to introduce the story. Then I go on from act to act as Shakespeare does – each with its scenes – drawn from real life’. Brevity, simplicity and clarity are the essentials of a good judgment. It is perhaps high time that the Apex Court looks into this problem and facilitates sustainable reform, which will also improve the timely delivery of judgments to litigants.