"However, the learned counsel...cannot derive the fullest succour from the
aforesaid acqueisence... given its sinew suffering partial dissipation from
an imminent display occurring in the impunged pronouncement here at where
within unravelments are held qua the rendition recorded by the learned Rent
This excerpt from a judgement of Himachal Pradesh High Court in 2016 is not
relevant to this article except to invite the attention of readers towards
the language used. Thankfully, this was set aside by Hon'ble Apex court on
ground of convoluted English used.
The Supreme Court of India and many other eminent jurist across the world
have been pressing time and again that judgements should be simple, lucid,
apparent and obvious with detailed reasoning. Authors increasingly failed to
understand what purpose the lengthy judgement with quatations of Salmond or
HLA Hart serve when the same judgement can be concised justifiably. It is
apt that judgements of constitutional courts act as stare decisis ( a law
which all other courts are bound to follow), but it doesn't mean that courts
are bound to add legal maxims ( which hardly any layman understands) and
quotations or citation from western legal historians.
What is a Judgment?
Judgement is the statement given by the Judge, on the grounds of a decree or
order. It is the end product of the proceedings in the Court. The writing of
a judgment is one of the most important and time consuming task performed by
The making and the writing of a judgment and the style in which it
is written, varies from Judge to Judge and reflects the characteristic of a
Judge. Every Judge, of every rank has his own distinct style of writing. But
the fact of the matter is that the reportable judgements from constitutional
courts are written in such a language mixed with a Latin legal terminology
that even advocates/ law students have to refer law dictionary, forget the
common people of land.
The judge, justice system, courts, judgements or
decrees are all for the interest of general public at large. If the common
man is not able to understand the reasoning or ratio of a judgement, then we
are failing as a system.
Hon'ble Mr. Justice M.M. Corbett, Former Chief Justice of the Supreme Court
of South Africa, recommended a basic structural form for judgment writing:
- Introduction section
- Setting out of the facts
- The law and the issues
- Applying the law to the facts
- Determining the relief including costs
- Finally, the order of the Court; and all these should be in very simple
language which could be understood by the person standing last in the queue.
Length vs Brevity:
The avoidable citations and quotations from historians make the judgement
lengthy. In the era of advanced technology, when all the information
including judgements are available at one click, people are reluctant to
read the full judgement spreaded in thousands of pages.
A perfect example
can be seen in an order in the month of March 2015, when Justice Mishra in
the case of Priyanka Srivastava and Anr vs State of UP and Ors
, had written
what can be said to be as one of the longest sentences ever written in a
Supreme Court judgement. Hon'ble Justice wrote a single opening sentence
with 192 words. Length of documents does not attract readers rather brevity
is loved. Brevity is the virtue of a wise man and is familiarized by those,
who have clarity in mind. No one likes to read long judgments.
opinions are comfortable in reading. Shri Gurcharan Das in his article
published on 03.10.2003 in the Times of India said, "Soon after he became
Prime Minister, Winston Churchill wrote to the First Lord of the Admiralty
to ask-Pray Sir, tell me on one side of the sheet of paper, how the Royal
Navy is preparing for the war, Churchill knew that if he did not qualify his
request, he would have received an unreadable 400 page report.
a great virtue, and nowhere more needed than in India.
Our Judges write judgements that are too long; our lawyers ramble on; our
executives try to impress with lengthy memos; our politicians well try to
get in a word. It can be safely said that lengthy judgements are not
Use of Latin principles
The number of law students that have studied Latin at school is quite meagre.
The proportion which can understand Latin in the community at large is
small. If the purpose of reasons for judgment is to communicate effectively
with the various audiences, it is highly desirable that Latin expressions
should be dropped or where still useful, these should be translated.
Otherwise a barrier is placed between legal expression and an important
section of the audience for whom the judgment is written. Such barriers
serve only to alienate judges and lawyers from the community they serve.
usage of Latin as an illustration of classical learning is unnecessary.
Learning can quite readily be demonstrated by those anxious to do so in
other ways. Our judgements are read not only by the experts but also by
persons, not so conversant with law. We have to make their task easy by
writing in a language that is comprehensible. Use of Latin, foreign and
difficult words is to be discouraged. Writing of judgments should be to
express and not to impress.
It is often that advocates and judges use a peculiar cant and jargon of
their own that no mortal can understand, which need to be avoided. After 70
years of Independence when we have fairly developed our own legal system
then there is no point using Latin or foreign words.Lets look at some of the illustrations and consider which one is better:
- Nemo Debet Esse Judex In Propria Sua Causa.
- No Man Can Be Judge In His Own Cause.
The first one is in Latin and the second one is its English version. The
authors fail to understand what purpose would be served by writing in Latin
which commoners would not understand.
Simple writing is the hallmark of a superior mind. It is the usage of plain
and familiar word that catches the readers' attention. Legal expert,
lawyers, judges or law students may understand the difficult words, but is
is difficult for the readers.
The layman may neither have patience nor time
to consult the dictionary. The courts and Judges of India are respected all
over the world due to their highest level of wisdom and intelligentsia. But
when the general public finds it difficult to understand, the entire
exercise becomes pointless.
Use of double/triple negatives:
One more major issue which the readers including the legal fraternity face
while reading the judgements is the enhanced use of double or triple
negative. Sometimes a sentence is framed with two or three negatives which
compel the readers to engage their mental faculty in an exercise which could
be easily avoided. In order to understand it, consider this example.
A judge writes in his judgement: I cannot say that I do not disagree
The words cannot
negative meanings on their own. Because there are three of them in a single
sentence, the sentence has a negative meaning overall. Saying I do not
disagree with you would be positive, since it has only two negatives.
Hence, inspite of doing the lengthy exercise of triple negative, it would
have been better to simply say that I'm not agree with you.
Similarly, another illustration is proposed through an excerpt from the
judgement of a Tribunal on a service matter. The Hon'ble tribunal was
pleased to write in a para: 'A member who has no fewer than 25 years of
credited service but has not yet attained the age of 60 years and is not
eligible for retirement may not voluntarily retire early without first
getting approval from the Board after filing a written application.'
The tribunal tried to accommodate all the things in single sentence with
negatives creating chaos and confusion to readers. Now in this case, if the
negatives are removed and it is split, the same can be written as follows:
The members, ineligible for retirement, may voluntarily retire if they
- under the age of 60 years, and
- have at least 25 years of credited service.
This can only be done after getting approval from the board by filing a
written application. I need not say, which one is better.
No doubt, judgment writing is an art. The wit and wisdom of a Judge reflects
from his writings. In India, we had Justice Mukherjee, Justice Krishan Aiyer
having an unparalleled skill of writing the judgements. Chief Justice
Marshall of Supreme Court of USA is well known for his art of writings. All
these Honourable Judges are respected because they impress the common
people. The writings should be simple and split into smaller sentences as
such unambiguous and lucid judgements will bring the common man more closer
to the judicial system and will act as a bridge of trust between public and
Written By: Hari Mudgil,
is lawyer and legal scholar with five books
to his credit