JUDGMENTS WRITING: WHAT IS ACCESSIBLE?

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This article is coauthored with Sanskriti Srimali, a fourth year student from Institute of Law Nirma Univeristy.

Introduction: Author-Reader Dichotomy

Friedrich Nietzsche’s famous lines “it is my ambition to say in ten sentences what others say in a whole book.” professedly conveys the idea of writing succinct yet successful texts. It unfolds various debates about reading and understanding texts. In simple words, the purpose of writing is not to impress the reader; rather, it is to express the author in the best way possible. Thus, both the reader and the author are important in the construction and deconstruction of a text. As Ronald Barthes argued, the decipherment of a text depends upon the reader because there are various social and cultural codes which a person uses (often unconsciously) in interpreting a text. Thus, the purpose of writing a text is fructified when it is read by someone, and understood in the closest intendment of the author (see e.g. Jessica D. Litman’s Readers’ Copyright).

Notably, the factor of “absence of text originator” in writing unlike the speech where both listener and the speaker remain present also underscores the importance of writing reader-friendly texts. However, recently it noticed that the Court Judgments are being reader-friendly. Given the texts produced under the control of Judges and hold the authority of a law, the need of a reader-friendly texts gets heighted. Moreover, it is noteworthy that how judgments are read by people (in)directly decides the functioning of the law. Given the reducing attention deficit in the world, longer and complicated texts are less likely to be read by people because they demand more concentration and effort. Rather, preference is given to the texts that are easy to read and understand.  In absence of such texts, people often shift to secondary sources such as blogs, commentaries, articles, opinions etc. which are written by someone who is often not the originator of primary text. When texts are read, written, and interpreted in such a way, the original meaning gets lost to the end reader, if not lost, then substantially changed for the end reader.

The present article is an attempt to highlight the importance of writing reader-friendly judgments which not only means shorter texts but also implies other factors including the systemized structure of text, language used, summary given. Deliberating upon the binding authority of judgments as a law and notion of ‘mistake of law is no excuse’, the authors have argued that writing complicated and non-reader friendly (verbose, jargonized) judgments can lead to infringement of the right to know.

Accessibility NOT should be limited to Physical Access

The way availability does not necessarily mean accessibility, accessibly does not necessarily mean comprehensibility. This becomes even more pertinent for the judgments which does not only need to be physically accessible (in addition to being available) but also need to be mentally accessible, meanng they should be such that they layman can understand them. When writers ideate and create, they presents a world of their own but it is the reader who ultimately decides to be a part of that world. In such an inexorable author-reader relationship, the burden comes on the author to convey the maximum message of the text shift to the reader. Hence, it becomes important to understand how the judgments are written and made accessible to people which includes whether they are deciphered by the people.

Following are excerpts from two different judgments, one showcasing the coarsely created complex sentences and other explicating an issue very simply.

In Subramaniam Swamy vs Union of India, the Court made a multiplex remark on the constitutionality of criminalizing defamation under IPC

“This batch of writ petitions preferred under Article 32 of the Constitution of India exposits cavil in its quintessential conceptuality and percipient discord between venerated and exalted right of freedom of speech and expression of an individual, exploring manifold and multilayered, limitless, unbounded and unfettered spectrums, and the controls, restrictions and constrictions, under the assumed power of “reasonableness” ingrained in the statutory provisions relating to criminal law to reviver and uphold one’s reputation.”

Juxtaposing this with the US case of Garcia v. Bloomberg pertaining to the issue of the right of protest versus the imperatives of public order:

“What a huge debt this nation owes to its “troublemakers.” From Thomas Paine to Martin Luther King, Jr., they have forced us to focus on problems we would prefer to downplay or ignore. Yet it is often only with hindsight that we can distinguish those troublemakers who brought us to our senses from those who were simply…troublemakers. Prudence, and respect for the constitutional rights to free speech and free association, therefore dictate that the legal system cut all non-violent protesters a fair amount of slack. These observations are prompted by the instant lawsuit, in which a putative class of some 700 or so “Occupy Wall Street” protesters contend they were unlawfully arrested while crossing the Brooklyn Bridge on October 1, 2011.”

These two illustrative judgments show that how writing a judgment plays major role in how a judgment is accessed by the reader. Ideally, a judgment cannot be said to be accessible when it cannot be comprehended. Being abreast of a judgment is no less than being updated with law as the judgments constitute a part of law (stare decisis). As such knowledge not only helps an individual harmonize her behaviors in the best way possible but also allows her to positively participate in society. The famous jurisprudential aphorism, ‘every right has a corresponding duty’ is relevant in this case as well. Tellingly, when an individual has a right to know, the corresponding duty not only falls on other individuals but also on the state to make the right available in the best way possible. If citizens are debarred from claiming excuse of law on the ground of ignorance, state can also not ignore whether people understand what law is. Pertinently, knowledge of law demands accessibility of law, and accessibility demands a convenient deciphering of law. Thus, when writing judgments, judges should keep the mental accessibility of the readers in mind, meaning that judgments should be produced in a way which is not only convenient for lawyers and law students to understand but also easy for the layman to understand. The idea of considering ‘wordy as the worthy’ needs to be disabused in judgment writing and precision and brevity need to be celebrated as tools to reach maximum readers. It also coincides with Lord Neuberger’s words who said that “judges themselves need to change the way they write – or risk losing the public’s confidence in the entire justice system”.

 Right to know →An attempt to Resurrect

Having a ‘right’ is one thing and exercising the same is another. Everyone has a right to know but not everyone is capable of exercising the right owing to their socio-economic-political reasons. Access to law is one of the most important rights in democratic set-up but how and whether it reaches everyone is something which deserves special attention. In Union Of India vs Vansh Sharad Gupta, the court observed that “It is impossible for any Government to expect obedience to their Law without informing the people in legible form. It is more difficult especially when the text of Law is not available in an easily accessible format.” Thus, merely providing a law is not important unless it is provided in the best way possible, only then the public can be seriously expected to follow the law.  The same was also underscored in the Secretary, Ministry of Information and Broadcasting v. Cricket Assn. of Bengal, where the Court has clarified while defining the right to impart and receive information as a specie of right of freedom of speech and expression, that every citizen has a right to use the best means available for the purpose of exercising a right. It is noteworthy that a significant amount of discourse is done on the accessibility of judgments and court records; however, the legibility of those judgments is still underdressed.

As said, judgment writing is a craft which needs to be ingrained in the judicial system and incorporated in the judicial training. Writing complex judgment is more appalling for than appealing. Illustratively, in Sarla Sood and Ors Vs Pawan Kumar Sharma, a  Himachal Pradesh High Court judgment was  overruled by the Supreme Court owing to its intoxicating verbiage and analytical ineptitude. Similarly, Subramanian Swamy v. Union of India & Ors is known for its confusingly crafted sentences as it incorporated the second sentence of around 228 words divided by more than six commas and 17 “ands.” Likewise, Kesavananda bharati v. State of Kerala, a 703 page judgment has been regarded to create “an illiterate bar”  by Prof. Upendra Baxi.

It is worth noting that writing such complex and lengthy judgments by the court gives a fillip to shifting to texts other than judgments. These other texts are often freely available on blogs or online sources which are written by anyone interested in the subject. Regardless of how succinctly or interestingly written, these texts cannot be regarded as the reliable source of information owing to their origination from a different author. Over the years it has been accepted as a trend that lengthy drafted judgments demonstrate the veracity of judicial merit. This belief gave rise to a persistent question – Could less be more? when it comes to delivering justice to the common man as said by Prof Shamnad Basheer.

Conclusion

Prima facie, a text is analyzed by its size, length, language, subject matter, authenticity of the publication platform, and the authority of the author.  As rightly said, time is precious and in spending time rightly we have come a long way, our preference has turned from research papers to articles/blogs, newspapers to online apps, facts to opinions and reading judgments to case summaries.

The fact that makes it imperative for the judges to provide cohesive text is that judgments are the primary sources of law and publicly pronounced decisions are also an essential way of maintaining public trust and, indeed, the rule of law. A well-rounded articulation without compromising the reasoning will facilitate logical advancement and integrity of legal scholarship.  Writing judgment is undoubtedly an art and professionals including Justice Krishna and Justice Gita Mittal have done a great work to bridge the gap between courts and common man. At their tenure, many of the judgments were succinct and understandable, including a clear crystallization of the law and the evidence.  Illustratively, while understanding the gravity the brevity beholds, in one of the decisions PICUP vs Pacquik that went over 100 pages, Justice Gita made it a point to have a helpful synopsis right at the start, with a contents page, making it much easier to navigate, and comprehend.

Simple composition is a representation of a towering intellect; we may be incorrect in our judgments, but they can still be overturned on appeal. But no one should criticize our judgment simply because they don’t understand it. At last, what least Indian courts should do to address this inadequacy is 1.) to write short, simple and succinct judgments as suggested by many scholars, 2.) if they have to be long, to encapsulate the essence of the long written judgment and make it available separately. This can further be uploaded by the registrar on an official platform to facilitate better understanding of people and discourage the practice of reading unauthorized sources to attain knowledge as a replacement of the judgment, and making the importance of the 3Cs (clarity, coherence and conciseness) a part of judicial training.

Image source: here

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