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 the jurisdictions, the UK Supreme Court verdict offers valuable lessons especially for Indian Supreme Court Judges who suffers from obscure prolixity and floridity syndrome.
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. The purpose of judgement writing is to convey the interpretation of law as clearly as possible. If the reader stays engaged and possibly entertained along the way, that much better. If the reading is easy and effortless, that's a sign of good writing. If the reader drops off in the middle or struggle to comprehend, something is amiss.
The Kesavananda Bharati case (1973), which conceived basic structure doctrine in 700 pages difficult to comprehend was followed by S. P. Gupta case (1981) that had roughly 830 pages. However, during 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 habit and people do not have patience of reading overlong documents, books, judgments, etc. E-reading has become a new normal. 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. With this kind of readership, lengthy judgements will produce half knowledge, which is hazardous for legal profession.
Long judgments hardly serve any purpose rather create misunderstanding and brings inconsistency in the case laws. A five-judge bench was constituted in Islamic Academy of Education (2003) to explore the true import of 11 judge-bench judgement of TMA Pai (2003) but miscarried and finally 7 judges-bench in P.A. Inamdar (2005) apparently resolve the problem. Long judgements become paradise for the legal profession to play with justice delivery process by citing irrelevant portions and hiding the relevant parts.
Why do then 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 the views of their colleagues. In 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 judgement (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 judgement with a state of misunderstanding. Similarly, in NCT Delhi Case (2018) three separate concurring opinions with substantial agreement on all important issues eventually increased only 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 the majority views. But the current concurring trend especially in leading cases lacks substance.
Even the US Supreme Court's judgments to which Indian judges are very fond off do teach a lesson. The verdict in leading Texas v. Johnson (1989) on free speech in the context of the right to burn the American flag had just 43 pages. The judgement 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 Navtej Singh Johar case (2018). Another landmark Roe v. Wade (1973) dealing with abortion rights used just 66 pages to communicate the law.
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. Similarly, a literary device may be restrictively used to increase communion with one's audience and not to show off their verbal dexterity and cultural knowledge in the judgement. 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 (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 Krishna Iyer or Lord Denning who developed his distinct style of judgement 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. This is high time perhaps that the apex court must look into this problem and make sustainable reform which will also improve the timely delivery of judgements to litigants.
Views are personal only
(Authors are Advocate, Supreme Court of India and Professor of Law, NLUO respectively)