11 Oct 2020 2:05 PM GMT
Background Judgments delivered by the Supreme Court of India (SCI) have a significant social, economic and political impact on the Indian democratic polity. SCI is faced with complex legal issues emanating from an assortment of laws. It is, therefore, only natural to expect that people most affected by these judgments should have the right to know and inform themselves of the...
Judgments delivered by the Supreme Court of India (SCI) have a significant social, economic and political impact on the Indian democratic polity. SCI is faced with complex legal issues emanating from an assortment of laws. It is, therefore, only natural to expect that people most affected by these judgments should have the right to know and inform themselves of the basic implications these judgments have on their daily lives. Although there is no disagreement with the existence of this right per se, the most critical aspect thereto is the implementation — in both form and substance. The major difficulty in the implementation of this right is the inability of the layperson to comprehend judgments of the Court — a phenomenon attributable to the length, substance and language of the judgment. The prescient warning of Justice VR Krishna Iyer in 1978, that 'legalese and logomachy have the genius to inject mystique into common words, alienating the laity in effect from the rule of law', comes to the fore.
To address this gap in the public interface of the Court, many jurisdictions have established a press office. Although the duties of the office differ with each jurisdiction, the objective behind the conceptualisation of the office is the same — to aid accurate reportage by supplying brief and accurate information of the judgment, educate the public about the role and function of the courts, instill a rule of law culture, empower citizens by increasing their legal literacy and bolster access to justice.
Lack of Institutional Framework
In India, there is no institutional framework that offers informed public engagement with the judgments of the Court. Despite a surge in media coverage of SCI, there is little effort from the Court to make itself a more publicly oriented institution in terms of increasing access to its work for the public. While there have been a few instances of misreporting active cases, and judges have lamented (in the context of live reporting) that media coverage of SCI is biased or misleading, not much has been done by the Court itself to facilitate access to its work and counter the biases it perceives.
It is, therefore, imperative that the Court formulates a mechanism that provides citizens with reliable access to the results of adjudication. Based on global best practices, SCI can begin this process by publishing a brief press summary of the judgment it delivers.
In this backdrop, this piece shall discuss three jurisdictions before it borrows their best practices to recommend a model for SCI to publish summaries of its judgments.
Practice in the US, UK and South Africa
United States of America
The Supreme Court of the United States (SCOTUS) does not publish a press summary of its decisions. This is surprising since SCOTUS is a far more experienced Court in comparison to its foreign counterparts.
There is, however, a different but limited system prevalent for facilitating the judgments coming out from SCOTUS. The system entails the judgments of the Court being prefaced by a 'syllabus': a summary added by the Court to help the reader better understand the judgment. The syllabus is prepared by the Reporter of Decisions, an office established by a Federal Statute of 1817 and staffed by experienced lawyers. It often includes inputs by the judge, and outlines the facts of the case as well as its journey up to SCOTUS. The Reporter also prepares the opinions 'under the direction and control of Chief Justice'. As a concept, the syllabus is similar to headnotes attached to judgments in Indian law reports, and contains precedents, page number references, opinions of each judge on the Bench (concurring/dissenting), etc.
The legal relevance of the syllabus was discussed by SCOTUS in Detroit Timber & Lumber Co. (200 U. S. 321, 337). In this case, SCOTUS felt that it was important to clarify the nature of the syllabus after the State's attorneys placed reliance on the syllabus/headnote in Hawley v. Diller (178 U.S. 476), since the headnote in Hawley mischaracterized its holding. Elaborating on the limited role of the syllabus prepared by the Reporter, the Court ruled:
'In the first place, the headnote is not the work of the court, nor does it state its decision, though a different rule, it is true, is prescribed by statute in some states. It is simply the work of the reporter, gives his understanding of the decision, and is prepared for the convenience of the profession in the examination of the reports.'
The most notable aspect considered by Detroit Timber was the audience of the syllabus. According to the Court, the syllabus is addressed to members from the legal fraternity. These observations are important from the standpoint of distinguishing the syllabus from the summary of a judgment. As we discussed earlier, the latter is meant to simplify the judgment for the understanding of the media and public. In other words, a syllabus and a summary serve different goals and audiences.
After Detroit Timber, it became a practice for every SCOTUS decision to be presaged with a disclaimer stating that the syllabus is 'no part of the opinion of the Court'. There is, however, still no concept of a press summary even after a Public Information Office 'dedicated to facilitating accurate coverage of the Court and furthering the public's understanding of the Court's function and history' became part of SCOTUS. Among other concerns with this lack of transparency, this has become a reason for many academics to describe SCOTUS as the least democratic branch.
The Supreme Court of the United Kingdom (SCUK) has a dedicated communications department, which was established in 2009. The Head of Communications is responsible for spearheading the communications function of the Court, serving to promote public understanding of SCUK and its judgments. The Head of Communications works directly under the Chief Executive Officer appointed by the President of SCUK. The Head of Communications is a non-legal professional working in the field of public relations and communication.
As an integral part of the team led by the Chief Executive Officer, the Head of Communications in its role of public education is responsible for publishing a summary of the judgment delivered by SCUK. These summaries are prepared by Judicial Assistants (counterparts of the law clerks and judicial assistants to Indian judges) in consultation with the justices of SCUK and the Communications team. The involvement of judges with the communications office dispels the apprehension that summaries prepared independently by the office without consulting them might be inaccurate or unreliable. If they are not involved, their lack of participation would leave room for the office to act as a spin doctor instead of an objective information provider.
The main contents of the summary are the names of the judges deciding the case, a brief background of the appeals, judgment and main reasons for the judgment. These summaries are tailored in a manner that common people can understand the significance and import of the judgment. The summaries published by SCUK are qualified by the following statement:
'This summary is provided to assist in understanding the Court's decision. It does not form part of the reasons for the decision. The full judgment of the Court is the only authoritative document.'
The effort of the Court to publish these summaries in addition to other media and public relations measures show that SCUK has actively endeavoured to make itself more accessible by broadening its engagement with the public. It reflects an understanding that SCUK is willing to adopt practices any court in a modern democracy is expected to implement.
The High Court of Australia and the Supreme Court of Canada have a model similar to the UK for press summaries.
The Constitutional Court of South Africa and the Supreme Court of Appeals of South Africa also have the practice of publishing summaries (see here and here) — both prepared by the Court with the assistance of Law Clerks.
The summaries published by the two South African Courts are somewhat similar to the press summaries published by SCUK with a conventional caveat that the summaries are intended for the benefit of the media and do not form part of the judgment. What distinguishes South Africa is that no separate press office has been created for these two courts and the summaries are solely drafted by the judge with assistance of their law clerks.
Interestingly, SCUK as well as South Africa's Constitutional Court provide a case summary / pre hearing media summary as well. They provide the issues and facts related to the case and are prepared for cases that are yet to be argued and decided, so that the public is aware of the scope of the case being argued. The South African Constitutional Court additionally also provides the arguments to be presented by the parties.
A strikingly missing component from the South African model is that the summaries are not published in any language other than English, though Article 6 of the South African Constitution provides for 11 'official languages'. According to a study, only 8.1% Africans speak English. Despite a constitutional stipulation and the alarming statistics on language, the country's Chief Justice recently passed a directive mandating English to be the only language of record in South African Courts. This has serious implications for access to justice for the citizens in Africa, since translations should be a necessary practice in countries with flourishing linguistic diversity.
Recommended Model for India
The idea of publishing a summary to a judgment is not entirely novel to SCI. In the landmark case of Kesavananda Bharati (AIR 1973 SC 1461), nine out of the thirteen judges signed a summary of the judgment ('view of the majority') recapitulating the major conclusions of the Court. Speaking for the majority in Minerva Mills (AIR 1980 SC 1789), Justice YV Chandrachud referred to this summary prepared by the nine judges, without deciding whether it forms 'a legitimate part of the judgment, or is per incuriam'. He argued that the summary rightly captured the majority ratio that Parliament cannot alter the basic structure under Article 368 of the Constitution. This practice of preparing a summary was, however, buried without any effort to retain it.
Given the lack of an existing framework to publish summaries, the authors propose four recommendations in this article. These recommendations are guided by the experience, gaps and criticisms faced by the peers of SCI from other jurisdictions in their efforts or lack thereof to make the institution more transparent and justice oriented.
First, a press office should be established in SCI under the administrative supervision of the existing Registrars, staffed with persons having experience in legal journalism. Like SCUK, the press office can coordinate with the judges of the Court – assisted by their law clerks – in drafting summaries. Keeping the judges close to the process will impart accuracy and authenticity to the document.
Second, judges of SCI are overburdened by an onerous caseload. In these circumstances, it will be inexpedient to expect that SCI publishes a summary of every judgment it renders. In the initial phases, the project can therefore be limited to summaries of the judgments delivered by constitution benches, the social justice bench, cases dealing with Fundamental Rights, Directive Principles of State Policy, Federalism and Elections. For matters beyond this illustrative list, judges may consider whether a summary will be beneficial for the media and public, and issue appropriate directions to the press office in this regard.
Third, the summary should be qualified by a statement highlighting its non-binding nature. Notwithstanding Justice YV Chandrachud's ambivalence on the precedential value of the summary, this approach is consonant with the observations made by Justice PN Bhagwati in Minerva Mills that a summary holds no precedential value under Article 141 of the Constitution. It also is in tune with the best practices of comparable common law jurisdictions.
The final recommendation pertains to language used for publishing a summary. Recently, SCI started publishing translated judgments in vernacular languages (see here) depending on the State from where the appeal is made to SCI. The translation project known as 'Project SUVAS' under the Artificial Intelligence Committee of SCI, chaired by Hon'ble Mr. Justice L. Nageswara Rao, deploys the use of artificial intelligence in translating the judgments of the Court. Since a well-conceived system for translation is already established, the authors recommend that summaries should be made part of Project SUVAS. With both summary and language assuming an important role in access to justice, publishing summaries in more than one language will incrementally advance the cause of justice.
In conclusion, the authors would like to state that there is always scope for enlarging the scope of this project, including pre-judgment case summaries, summaries for High Courts, etc. and keeping pace with the latest trends in modern courts for their democratisation. The time has come for India to make more headway in this direction.
Views are personal only.
(Sarthak Raizada is an advocate practising in Delhi. He tweets @sarthakraizada. Ribhav Pande is from the 2020 batch of the Faculty of Law, Delhi University. He tweets @ManifestlyArb)