Lengthy judgments are not only counter-productive, they are hazardous too
Lengthy judgments also give lawyers room to manipulate justice delivery process by citing irrelevant portions and hiding the relevant parts. Courts are duty-bound to communicate their verdicts clearly
Last week, in the case of Ajit Mohan vs Delhi Legislative Assembly, the Supreme Court of India observed that the judgments need to be more crisp, clear, and precise so that a common man could easily understand the law being laid down by the courts. In addition to this, the Court also stated that the lawyers should also finish their arguments within a short time and should avoid citing unnecessary precedents. It is indeed a timely suggestion that must be taken seriously by all courts of law. Let us welcome this observation by the apex court.
Under the Indian constitutional scheme of things, the law declared by the Supreme Court becomes law of the land as prescribed by Article 141 of the Constitution. But it is confined only to a privileged class of lawyers and academicians who can read the entire judgment and understand it. Nowadays it has become a fashion to deliver lengthy judgments particularly in constitutional cases that cannot be easily understood by the people because of their length and repeated observations by the judges that make the verdicts complex and inconsistent.
Admittedly, the main purpose of judgment writing is to convey the interpretation of the law as clearly as possible not only to the parties in the litigation but to the people at large. If the reader stays engaged and possibly entertained along the way, that is much better. If the reading is easy and effortless, that’s a sign of good writing.
But if the reader drops off in the middle or struggles to comprehend, something is amiss and the courts cannot ignore it. They are duty-bound to communicate their verdicts clearly. As the Supreme Court decides the legal destiny of the nation, it owes a big responsibility to lay down the law in clear terms so that other courts could follow the same easily according to the law of precedent.
"The judgment in Lawrence vs Texas (2003) that decriminalised sodomy in the state of Texas had only 49 pages, unlike Indian judges who used 493 pages to deal with similar questions in the Navtez Singh Johar case (2018)"
Notably, the Supreme Court’s judgment in the Kesavananda Bharati case (1973) that propounded the famous Basic Structure Doctrine into 700 pages is difficult to comprehend was followed by the S.P. Gupta case (1981) having roughly 830 pages. However, during the last few years, the Supreme Court of India has broken its own record of writing the longest verdict. It seems there is a competition among the judges to make new records in terms of writing long judgments.
The NJAC judgment (2015) had 1042 pages; the Aadhaar judgment (2018) in the Puttaswamy case had 1448 pages; the Ayodhya judgment had 1045 pages. The list is not exhaustive. But who reads these commodious judgments? These are very important judgments that must be brought to the knowledge of people as these verdicts have affected our socio-political system deeply. The modern Google era has adversely affected the reading habit of people who do not have much patience in reading overlong documents, books, judgments, etc. as digital reading has become a new normal.
Even the lawyers, judges, professors or law students whose profession demands serious reading hardly devote much time to the reading of books, articles etc. that provide them intellectual diet to develop their academic skills. Gone are the days when people used to sit in the libraries for hours. In the present times, disciples of Google Guru like quick, short, and easy readings as they are also part of the same global Google community that searches everything on Google search engine.
"Justice H.R. Khanna has rightly said 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. Some other judges have also expressed similar views. Brevity, simplicity, and clarity are the essentials of good judgment"
With this kind of readership, lengthy judgments are bound to result in half-knowledge which is highly hazardous for the legal profession. Should not the judges consider all these factors while authoring their opinions? I think they should.
Not only this, but lengthy judgments also create confusion and bring inconsistency in the case laws. For example, a five-judge bench was created in the case of the Islamic Academy of Education (2003) for exploring the true import of 11 judge-bench long judgment of TMA Pai (2003) but miscarried and finally 7 judges-bench in P.A. Inamdar (2005) resolved it.
Lengthy judgments also become a paradise for the legal profession to play with the justice delivery process by citing irrelevant portions and hiding the relevant parts.
A question comes to my mind why do judges write so much? The primary justification may lie in the fact that Constitution permits every judge to write their own opinion (concurring or dissenting), but what is distressing is that when judges agree, they do not critically engage with each other. In the majority of cases, it becomes hard to decrypt the precise law from the discordance of different opinions all seem to be saying the same thing.
The unanimous privacy judgment (9:0) pitched six separate but concurring opinions, each offered a different test to define the contours of the right to privacy, resulting in a long judgment with a state of misunderstanding. Similarly, in the NCT Delhi Case, three separate concurring opinions with substantial agreement on all important issues eventually increased the number of pages (535 pages), the effort involved in reading, and the likelihood of future misperceptions.
The erudite concurrence of Justice Krishna Iyer in Shamsher Singh (1974), Justice Mathew in Sukhdev Singh (1975), and Justice Hidayatullah and Justice Mudholkar in Sajjan Singh (1965) have immensely contributed to the development of law and are cited more often than the majority views. But the current concurring trend especially in high-profile cases lacks substance. This practice should be changed and judges should contribute meaningful concurring opinions.
Even the judgments of the UK and US Supreme Courts -- which Indian judges are very fond of -- do teach a lesson. The verdict in the Parliament Prorogation case (2019) by the UK Supreme Court had only 24 pages. The Marbury vs Madison (1803) that explained the doctrine of judicial review had just 18 pages, the leading Texas vs Johnson (1989) on free speech in the context of the right to burn the American flag had just 43 pages.
The judgment in Lawrence vs Texas (2003) that decriminalised sodomy in the state of Texas had only 49 pages, unlike Indian judges who used 493 pages to deal with similar questions in the Navtez Singh Johar case (2018). Another landmark judgment Roe vs Wade (1973) dealing with abortion rights used just 66 pages to communicate the law.
Justice H.R. Khanna has rightly said 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. Some other judges have also expressed similar views. Every judge is unique and therefore he should not try to emulate Justice Krishna Iyer or Lord Denning who developed his distinct style of judgment writing. Brevity, simplicity, and clarity are the essentials of good judgment.
(The writer is Advocate, Supreme Court of India. Views are personal)