Lengthy judgments, unlimited arguments

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 also to the people at large.
Supreme Court
Supreme Court

“It is the need of the hour to write clear and short judgments which the litigant can understand,” observed a three-judge Bench of the Supreme Court headed by Justice Sanjay Kishan Kaul recently in the case of Ajit Mohan v. Legislative Assembly, Delhi.

In addition to this, the Court also stated that 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. It will help people to understand the law easily.

As per Article 141 of the Constitution, the law declared by the Supreme Court becomes law of the land, but this is confined only to a privileged class of lawyers and academicians who can understand the judgment. Nowadays, it has become a fashion to deliver lengthy judgments, particularly in cases of constitutional importance, that cannot be easily understood by the people. 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 also to the people at large.

If the reading is easy and effortless, it is a sign of good writing. If the reader drops off in the middle or struggles to comprehend, something is amiss and the courts cannot ignore it. 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 can follow the same easily.

Notably, the verdict in the Kesavananda Bharati case (1973) that propounded the Basic Structure Doctrine contained 700 pages and was difficult to comprehend. The SP Gupta case (1981) that had 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 1,448 pages; the Ayodhya judgment had 1,045 pages.

Who reads such lengthy judgments? It is a matter of fact that in the modern era, a person's capacity to read overlong documents, books, judgments, etc has significantly diminished. Even lawyers, judges, professors, or even law students, whose work demands serious reading, hardly spare much time in reading books, articles, etc. which provide them intellectual diet to develop their academic skills. Gone are the days when people used to sit in libraries for hours. In the present times, disciples of Google like quick, short, and easy readings. With this kind of readership, lengthy judgments will result in half-knowledge, which is highly hazardous for the legal profession.

Lengthy judgments do not serve any purpose. Rather, they create more confusion and bring inconsistency in case laws. A five-judge bench was created in the Islamic Academy of Education case (2003) to explore the true import of the 11 judge-bench judgment of TMA Pai (2003). But the same was miscarried, and finally a 7 judge-bench in PA Inamdar (2005) resolved the issue.

A question comes to mind as to why judges write lengthy opinions. 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 when judges agree, they do not critically engage with the views of their colleagues. In the majority of cases, it becomes hard to decrypt the precise law from the discordance of different opinions; all judges seem to be saying the same thing.

The unanimous privacy judgment (9:0) pitched six separate but concurring opinions. Each judge offered a different test to define the contours of the right to privacy, resulting in a long judgment. Similarly, in the NCT Delhi Case, three separate concurring opinions with substantial agreement on all important issues eventually increased the number of pages to 535. The erudite concurrence of Justice Krishna Iyer in Shamsher Singh (1974), Justice KK Mathew in Sukhdev Singh (1975), and of Justice Mohammad Hidayatullah and Justice JR 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 Supreme Courts of UK and USA, 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 v. Madison case (1803) that explained the doctrine of judicial review had just 18 pages. The leading Texas v. Johnson (1989) on 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, unlike Indian judges who used 493 pages to deal with similar questions in the Navtej Singh Johar case (2018). Another landmark decision in Roe v. Wade (1973) dealing with abortion rights used just 66 pages to communicate the law.

Justice HR Khanna 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, should not try to emulate Krishna Iyer or Lord Denning who developed their distinct style of judgment writing. Brevity, simplicity, and clarity are the essentials of good judgment.

Lokendra Malik is an Advocate at the Supreme Court of India. Prof Yogesh Pratap Singh is a Professor of Law at National Law University, Odisha.

Disclaimer: The views and opinions expressed in this article are those of the authors' and do not necessarily reflect the views of Bar & Bench.

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