Parth Birla and Chirag Motwani
Judicial precedents are of paramount importance. The clarity of judgments becomes a prerequisite for the sustenance of the legal system. The article focuses on the lacunas on the part of the Indian Judiciary to deliver comprehensible judgments which connect a common man with the judiciary. It further emphasizes the need for clear judgments consistent with the view of the Supreme Court’s judgments in vernacular languages.
The legal profession is often associated with the use of old-school English by lawyers and judges, especially the latter. The Supreme Court in August 2022 (verdict) in State Bank of India v. Ajay Kumar Sood reverted the impugned judgment of the Himachal Pradesh High Court (HPHC) dated 27th November 2020 on the account of the “incomprehensibility of the impugned judgment”. The Supreme Court of India (SC) was met with an immaculate task to decipher and analyze the impugned judgment and provide a conclusive judgment. The SC responded with the reversion of the judgment and instructed the HPHC to hear the matter “afresh”. The case provides an interesting and important note for the efficacy and the future of the legal system in India.
The verdict emphasizes the intelligibility, clarity and comprehensiveness of judgment writing and lays the importance of judgment writing and its impact on the legal system as well as the general public. The HPHC rather provides us with an unsettling example of the old “Babu-English” which plagues the legal system and is time and time again highlighted by the judgments of the past and present. The term “Babu English” was used by the British to characterize the overblown officialese of “babus” or Indian officials; the British Library describes the language as “aspiring to poetry heights in vocabulary and learning”.
This form of English has been at the forefront of the Indian judiciary frequently and exposes the lack of originality and reflects the unnecessary application of complex English. In the well-known case of State Of U.P. v. Dr. Rajesh Talwar and anr. 2013, the court observed, “The cynosure of judicial determination is the fluctuating fortunes of the dentist couple who have been arraigned for committing and secreting as also deracinating the evidence of the commission of the murder of their own adolescent daughter.” This case is particularly significant since it caused a great deal of debate, and the use of arcane language may distract readers from the case’s subject matter to such technical language and jargons used in the judgment.
Again, an order provided by HPHC in 2017 raised the same concerning issue to which the SC responded in a way which is noteworthy, “We will have to set it aside because one cannot understand this.” The Vidhi Centre for Law and Policy published a guide defining “plain language” writing techniques and offering ways to be clear, short, and approachable without compromising content a few years ago. The guide suggests that drafter’s main focus should be clarity. The primary audience for legislation is the citizen, which the drafter must keep in mind. Law reading is as likely to be done by a layperson with no legal knowledge. This collection of guidelines serves as the basis for recommending standard Indian legal drafting methods. The guide offers recommendations for organising a Bill and the appropriate language to be employed in judgment writing based on this framework. Vidhi Centre relied on the simple language drafting manuals of countries including New Zealand, Australia, Germany, Hong Kong, and the UK while creating these standards.
THE PROBLEM WITH HPHC JUDGMENT
The case revolves around a dispute between the bank and its employee. The employee was charged with gross misconduct due to misbehaviour with colleagues, disrupting the normal functioning of the bank etc. After conducting the disciplinary enquiry, the bank dismissed him from the service and the appeal of the employee was also rejected by the appellate authority of the Bank.
The aggrieved approached the Central Government Industrial Tribunal (CGIT) and the tribunal announced that dismissal from service is a harsh measure and disproportionate, reducing the penalty to compulsory retirement. Both parties filed writ petitions at HPHC against the CGIT verdict. HPHC, after hearing both sides, further affirmed the judgment of the tribunal but the language used by the judges was the reflection of the Victorian era rather than the comprehensive language that a common man seeks from the judiciary. The bank further appealed via a Special Leave Petition (SLP) before the SC. The SC rebuked and reverted back the judgment due to the “incomprehensive” language used in the HPHC judgment. It further directed the HPHC to hear the matter afresh and moreover decided that the pending applications if any be disposed of. The language of the judgment was incomprehensible to a common man due to the incorporation of highly punctuated sentences and legal jargons. Some of the pieces from HPHC judgment are as follows:
- “The learned Tribunal, had, upon consideration, of evidence adduced, hence concluded, qua theirs, not therethrough, becoming proven, rather it made a conclusion, vis-à-vis, their being lack, of, cogent evidence, or their being want, of, adduction, of, cogent evidence, qua therewith, by the employer, and, obviously, returned thereon(s) finding(s), adversarial, to the employer.
- The ire res-controversia, erupting interse the litigants, appertains, to findings, adversarial, to the workman.
- Thereupon, dehors the CCTV footage, not graphically displaying his tearing the apposite letter, rather not cementing or filliping any conclusion, vis- à-vis, perse therefrom, any exculpatory finding, becoming amenable to be returned upon charge.”
INCOMPREHENSIVENESS: A LONG-STANDING ISSUE
The incomprehensiveness or rather incorporation of flowy English that is unsuitable to a common man has been an ever-present issue in the Indian Judiciary since the British era to the contemporary era. The problem persists and plagues. Justice V.R. Krishna Iyer, a stalwart of the Indian Judicial system who served a seven-year term at SC, was also pointed out for using such language despite the massive contributions that he made. One instance of such language being used by Justice Iyer in 1975 can be found in Chitan J. Vaswani and Another v. State of West Bengal and Anr. as, “Scantily clad female flesh of sweet seventeen or thereabouts flit about or sit on laps, to the heady tune of band music. They solicit carnal custom, and the willing male victims pay Rs. 30/-, choose whom they fancy, drink together and, taking leave of decencies, indulge in promiscuous sex exercise legally described as operation prostitution. The stage is busy with many men and girls moving into rooms, lavatories and chambers. The curtain rises and a raiding party of police and excise officers surprise this arotic company drowned in drink and damsels.” This language is perhaps unknown to a common man for whose justice the judicial system fights and goes to a greater extent to protect, preserve and promote the principles of natural justice.
While this is an example of 1970s of the Indian Judiciary, the contemporary judicial precedents also reflect the same persisting issue which is highlighted by some of the judgments that include, Justice Deepak Misra’s penned words, which were, “This batch of writ petitions preferred under Article 32 of the Constitution of India exposits cavil in its quintessential conceptuality and percipient” and “made paraplegic on the mercurial stance”. The issue was again highlighted by a HPHC judgment in 2017 whose wordings were, “given its sinew suffering partial dissipation from an imminent display occurring in the impunged pronouncement hereat wherewithin unravelments are held qua the rendition recorded by the learned Rent Controller…”. Facing the issue again in 2019 the SC returned a Bombay HC judgment on the grounds that the judgment was “unintelligible”.
This has been a trend which needs to be checked up on for reaching the aim of accessibility and understanding of justice to the common man. The need for a clear and comprehensive language of judgments was again brought to the forefront by a Public Interest Litigation (PIL) filed by a lawyer Subhash Vijayran in October 2020, highlighting the need for clear judgments with less ambiguity. The lawyer quotes a contemplative line in his plaint, “For whom are the Constitution, Law and Legal System? For the lawyers? Or the judges? Or—most important, but often neglected—The Common Man?”
SC’s VIEW ON AN IDEAL JUDGMENT
The position as laid in the SBI v. Ajay Kumar Sood and other mentioned cases are plainly from the jurisprudential aspect. The abovementioned cases highlight the usage of arcane language and its continuity which if becomes a trend would hamper the relation between common man and judiciary. What the judiciary and society need to understand is that this has not been a one-off incident, this shows the regularity of inconsistencies in our judicial system. The judgments, as a part of the system, are surrounded by rich, pompous and erudite literature rather than acting as a pillar and an indispensable organ of the government that interprets the law. For the purpose of accessibility of justice, it becomes quintessential that the judgments should focus on the explanation of the legal points and intricacies rather than the language. The SC verdict mentions the importance of IRAC in the case, regarding structuring judgments, it would be advantageous for courts to organize them such that the “Issue, Rule, Application, and Conclusion” are readily recognized. The well-known “IRAC” method, which is commonly used for assessing cases and organizing arguments, can also help judgments when supplemented by the recording of facts and arguments. Clearly identifying the issues with plain language helps in enhancing the comprehensibility of judgments. After issues, if the rule applied and its application are correctly elaborated in a judgment then it can automatically solve the issue of ambiguity that sometimes may arise. When a judgment is correctly outlined with a conclusion it would help the public at large to access and understand the verdict in a much more precise manner. The IRAC method audibly advocates the requirement and the issue of interpretation of the law which is currently limited to just a lawman. A clear judgment paired with IRAC structure provides a concise and simple framework for the people that would help in achieving the purpose of the legal system of improving public understanding.
Chief Justice DY Chandrachud has the vision to make available all the judgments of SC in vernacular languages, the same notion was praised and endorsed by the Prime Minister. On the 74th Republic Day, the vision of accessibility of justice to all took a first step in the form of 1091 judgments being translated into Punjabi, Oriya, Khasi Assamese, Garo, Nepali, and Bengali. As part of the e-SCR initiative, the judgments of the apex court will be accessible on the apex court’s website, its mobile app, and the judgment portal of the National Judicial Data Grid (NJDG). The prerequisite to the vision of accessibility of justice to all is the clarity, comprehensiveness and simplicity of the language of the judgment. The more complex the language of the judgment will be, the more tedious it would become to translate the said judgments. The SC has laid certain guidelines concerning the writing of the judgments. The intent of the SC guidelines is in consonance to that of Vidhi Centre guidelines’ recommendations. The SC guidelines aim for clarity in judgments for a common man and to achieve coherence, both guidelines provide for comprehensibility in the verdicts that caters to a common man Individual judges may continue to have varying styles of speech and distinct approaches to crafting decisions. A judge’s judgment reveals the inner workings of his or her mind. We cannot question the subjectivity or the ideology of a judge and even though each judge may have their own way of writing decisions, they must make sure that all of them are clear.
The HPHC judgment becomes a spot in the course of the Indian Judiciary and poses a question of whether it has the effects of starting a chain of events that have a hand in the development of the judiciary in terms of the judgment’s language, which is to be seen with glazing eyes. It is of utmost importance if the vision of the SC concerning accessibility as well as digitization turns into a fruitful reality, the requisite judgments should adopt a simple, clear and unequivocal judgment. The need for such clarity is universal and holds the utmost importance in the realm of law. Poor use of language leaves society staler, less dynamic and less original: “If thought corrupts language, language can also corrupt thought.”
The authors are undergraduate law students from Hidayatullah National Law University.