Supreme
Court: need of writing SHORT & crisp judgment
The hon’ble Supreme Court has again re-emphasized
the need of writing crisp judgment and the issue is worth pondering. The
recitation of the sentiment is timely and welcome. The judicial time and its
consumption in select cases cast additional burden on courts and ordinary
litigants. The judgment ought to be crisp for litigant to read and fathom it
cannot be questioned. The prelude of the post script written by hon’ble Supreme
Court is litigant centric which is
understood. The judicial time and its paraphernalia cannot be allowed to be
apportioned to select few cases and lengthy petitions, pleadings and counter
affidavits are required to be short and
crisp . The writing of lengthy judgment emanates from lengthy pleadings and
arguments, cannot be overstated. To mention a few judgments like Ayodhya title
Judgment running into 1045 pages, Aadhar
Judgment of 2018 relating to its validity running into 1448 pages,
judgments on Right to Privacy, pronounced in 2017 comprised of 547
pages, whereas judgments in 2018 about gay sex decriminalising judgment ran
into 495 pages. There are several instances beforehand. Their lordship had
quoted the need of application of Wret
& Martin principles of precis writing in pleading and arguments with a
view to underscore the acknowledgement of malaise by their lordships.
The hon’ble
Supreme Court has delved on the aforesaid issue, while delivering judgment in a
matter related to Delhi Assembly’s power to summon Twitter officials in Writ
Petition (C) No.1088 of 2020 in a matter captioned as Ajit Mohan &
Ors Vs Legislative Assembly, National Capital Territory of Delhi & Ors when
it is held that there is no dispute about the right of the Assembly or the Committee
to proceed on grounds of breach of privilege per se and also The power to compel attendance by initiating
privilege proceedings is an essential power. The Members and non-Members (like
the petitioners) can equally be directed to appear before the Committee and
depose on oath. The broad contour of this write up however is the post
script written by hon’ble Supreme Court while rendering the judgment on July
8th 2021. What is of
utmost importance is that hon’ble Supreme Court ( CORAM: hon’ble Sanjay Kishan Kaul, J, hon’ble Dinesh MaheshwariJ, & Hon’ble
Hrishikesh Roy J has written a post script, thereby, venting their lordships
concern in this regard and need for a discussion on it. The anguish of hon’ble
Supreme Court is well founded, given the judicial time consumed in select
number of cases and competing spree of lawyers resulting into lengthy arguments.
The net result of this is delay in pronouncing judgment.
To put it in nutshell, the phenomenal
time slots are consumed in following way:
(i)
Filing of lengthy petition;
(ii)
Filing of lengthy written statement/reply;
(iii) Filing of lengthy
rejoinder by the parties;
(iv) Filing of Written
synopsis/arguments;
(v)
Filing of additional written synopsis;
(vi) Arguments by all
the stake holders such as petitioner and any number of respondents;
(vii) Lengthy hearing
as the pleading may entail;
(viii) Referring to
judgments/precedents and its applicability or reasons as to how that could be
distinguished;
(ix) Prolonged
criminal proceedings and interim proceedings consuming vast amount of time.
Once arguments are concluded and judgments are reserved after
hearing of the matter, then too, much time is consumed in perusing each and
every averments and reliance by the parties with a view to arrive at a just conclusion
by the courts. The delay is inevitable and judgments are often lengthy, due to
voluminous pleadings and reliance. This is in contradiction to the cherished purpose
of early justice. The observation and post script written by hon’ble Supreme
Court is also significant from the standpoint that what may actually happen
post Covid. The burden on court may increase manifold and there may be surge of
new cases and also hearing of old cases may come to centre stage.
The Supreme Court has observed that that there needs to be clarity
in the thought process on what is to be addressed before the Court and
necessity of Counsels, being clear on
the contours of their submissions from the very inception of the arguments. In
this backdrop, it is observed that problem may be alleviated somewhat, if brief
synopsis by both sides right in the beginning are filed and strictly adhered
to. The emphasis is also put
on the desirability to look into best international practices so as to aptly apply
in Indian context and to do away with expansive discussion.
In this backdrop, the hon’ble Supreme Court has referred to Article 6 of the European
Convention on Human Rights, 1953 while recognizing the right of fair trial and
public hearings, qualifies it inter alia to be completed “within a
reasonable time”. This is intrinsically linked to administering justice without
delays. Delay in judicial proceedings has been the bane of our country and it
is necessary to jettison the appendages of old practices, in as much as that has
become obsolete and has outlived its purpose. It is the litigants who bear the
costs of our complex and prolonged adjudicatory process. The litigants ,
though, are the backbone of judicial dispensation system and thus bar and bench
has to be conscious to the predicament and a situation of helplessness, that a
litigants may be subjected to by delay. It is thus felt by hon’ble Supreme Court
writing clear and short judgments which could be understood by litigants are
must. The judicial precedents some time as early as about a century or reference
of earlier judgments may cause unnecessary consternation. Moreover, there is no
denying that on every aspects there could be various judgments, but the malaise
of hon’ble Supreme Court is reflected in their lordship’s observation that in
every case precedent is not needed thus, referring to the precedents in many
cases being avoidable, should in fact be avoided. The other scenario, also, though,
cannot be ruled out i.e the cited judgments may be found quite apposite to the
facts of the case and that could be used as a guiding principle. The R. v. Erskine;
R. v. Williams [2009] EWCA Crim 1425,
[2010] 1 WLR 183 a well-known aphorism of Viscount Falkland in 1641 was thus
quoted, as noticed “if it is not necessary to refer to a previous decision of the
court, it is necessary not to refer to it. Similarly, if it is not necessary to
include a previous decision in the bundle of authorities, it is necessary to
exclude it. That approach will be rigidly enforced.”
As this forms the basis of the criminal practice directions in the
UK which apply to all criminal matters before the Court of Appeals (ref: Crown 151 [2009] EWCA Crim 1425,
[2010] 1 WLR 183. [185] Court, and the Magistrate’s Court). The Criminal practice
directions clarifies that if a judgment
does not refer to a cited case, it is not that the court has not referred to it
but rather, that the court was not assisted by it.
The contribution to the
development of law can certainly be nurtured by comprehensible precedent and
its importance cannot be overstated. The impediments, however, several times, may
be consumption of time in dealing with the complexity of matters leading to further
complexities and delays. The judgments cannot be allowed to be lengthy and
verbose, for the sake of their reference in main body of judgment, since the
same was referred to at bar and its applicability or in case it is
distinguished is to be categorically dealt with. The larger in number are precedents
cited the dealing with it shall consume more time and delays shall be
inevitable. The necessity of a judgment being crisp is just not a metaphor but
a need of the hour. The necessities are to be dealt with whether on facts and
law, but the adjunct to the arguments which may not be as integral to the case
may be relegated.
The fact is that judicial time even on administrative side is
spent on devising way of case management, but if the outcome of such a
discussion on case management are seldom followed, then the problem gets
accentuated further.
We may note that the US Supreme Court and courts in United
Kingdom is more restrictive in its time frame and that is not without reason.
The norms are devised and pattern turns to traditions which is capable of taking
care of the requirement of limited time frame so as to aptly and adequately address
submissions. The same are preceded by the contours of arguments given in the
written synopsis and the reliance sought to be referred to and applied in the
case. The lawyers also have a gigantic task to do, no doubt, i.e to crisply
putting across the broad contour of arguments in timely and effective manner. Despite
this, precision and clarity should come out of the wisdom.
In retrospect the Supreme Court has stressed that as on 01.05.2021 the pending cases were numbered as
67,898. If one factor the time taken in routine matter and the time spent on
routine matters, the courts are left with little time to settle legal principles
and sitting of larger benches could be postponed in view of time consumed in
routine matter. The effect of that could be the matters which must be awaiting
for settling of legal principles may not see the light of the day.
Another matter of grave concern also is time consumed in prolonged
interim proceedings. Sometime after hours of arguments, the matters are to be
adjourned for the reasons arising out in the course of arguments, thereby
nullifying the prospect of good and effective use of time. Similar are the
situations with criminal matters and even bail matters. If one ventures into
civil side, again the situation is no different. In civil side, considerable
time is spent at interim stage itself and lis remains pending for long. And substantive
proceedings remains procrastinated. In this backdrop, it is also felt that even
after prolonged battle, once the lis in a civil case is decided, the successful
litigant has to brace for another round of litigation-execution proceedings
The writing of post script by hon’ble Supreme Court with a view
to start a discussion among the legal fraternity by bringing to notice the
importance of succinctly framed written synopsis in advance is therefore
laudable. The prescription of limited time frame for advancing oral arguments
is required, and the same should be strictly adhered to in course of oral arguments
and this should not be allowed to spill over.
The more crisp, clear and precise judgments as may be understood to the common
man could be pronounced in case mode and manner as narrated above is acted
upon. After all, it is for ‘the common
man’ that the judicial system exists.
According to E.N. Brandis, J, U.S. Supreme Court. The
judgment must be designed and structured so that readers find their way through
it easily and quickly. There is no such thing as good writing. There is only
good rewriting. It is absolutely necessary to revise the judgment. A
revised judgment takes care of errors and reassures the Judge of the
correctness of his opinion. It also ensures to avoid silly mistakes. It is
advisable to the Judges, to read their judgments after a few years, to ensure
that same mistakes are not repeated. There is always a room for improvement.
The hon’ble Supreme court
has held in K’ a Judicial officer, In re (2001) 3 SCC 54:
A Judge
entrusted with the task of administering justice should be bold and feel
fearless while acting judicially and giving expression to his views and
constructing his judgment or order. It should be no deterrent to formation and
expression of an honest opinion and acting thereon so long as it is within four
corners of law that any action taken by a subordinate judicial officer is open
to scrutiny in judicial review before a superior forum with which its opinion
may not meet approval and the superior court may upset his action or opinion.
The availability of such fearlessness is essential for the maintenance of
judicial independence. However, sobriety, cool, calm and poise should be
reflected in every action and expression of a Judge6.”
It is further
written that “Judicial restraint and
discipline are as necessary to the orderly administration of justice as they
are to the effectiveness of the army. The duty of restraint, this humility of
function should be constant theme of our judges. This quality in decision
making is as much necessary for judges to command respect as to protect the
independence of the judiciary. Judicial restrain in this regard might better be
called judicial respect, that is, respect by the judiciary. Respect to those
who come before the court as well to other co-ordinate branches of the State,
the executive, and legislature. There must be mutual respect. When these
qualities fail of when litigants and public believe that the judge has failed
in these qualities, it will be neither good for the judge nor for the judicial
process."
The
discussion shall probably remain incomplete, if Justice Sunil Ambawani of
Allahabad High Court is not quoted in this regard:
“ A
judgment 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 a
Judge. 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.
The
“decree” in section 2(2) means formal expression of an adjudication, which, so
far as regards the Court expressing it, conclusively determination the rights
of the parties with regard to all or any of the matters in controversy in the
suit and may be either preliminary or final.
According to E.N. Brandis, J., U.S. Supreme Court.
The judgment must be designed and structured so that readers find their way
through it easily and quickly. There is no such thing as good writing. There is
only good rewriting5. It is absolutely necessary to revise the judgment. A
revised judgment takes care of errors and reassures the Judge of the
correctness of his opinion. It also ensures to avoid silly mistakes. It is
advisable to the Judges, to read their judgments after a few years, to ensure
that same mistakes are not repeated. There is always a room for improvement.
K’ a Judicial officer, In
re (2001) 3 SCC 54, by Hon’ble Justice R.C. Lahoti.
A Judge entrusted with the
task of administering justice should be bold and feel fearless while acting
judicially and giving expression to his views and constructing his judgment or
order. It should be no deterrent to formation and expression of an honest
opinion and acting thereon so long as it is within four corners of law that any
action taken by a subordinate judicial officer is open to scrutiny in judicial
review before a superior forum with which its opinion may not meet approval and
the superior court may upset his action or opinion. The availability of such
fearlessness is essential for the maintenance of judicial independence.
However, sobriety, cool, calm and poise should be reflected in every action and
expression of a Judge6.”
It is further
written that “Judicial restraint and discipline are as necessary to the orderly
administration of justice as they are to the effectiveness of the army. The
duty of restraint, this humility of function should be constant theme of our
judges. This quality in decision making is as much necessary for judges to
command respect as to protect the independence of the judiciary. Judicial
restrain in this regard might better be called judicial respect, that is,
respect by the judiciary. Respect to those who come before the court as well to
other co-ordinate branches of the State, the executive, and legislature. There
must be mutual respect. When these qualities fail of when litigants and public
believe that the judge has failed in these qualities, it will be neither good
for the judge nor for the judicial process."
CONCLUSION
The Post
Script written by hon’ble Supreme Court in Writ Petition (C) No.1088 of 2020
in a matter captioned as Ajit Mohan & Ors Vs Legislative Assembly,
National Capital Territory of Delhi & Ors is timely and the object of initiating
a discussion on the issue is laudable. The bottom line is that judgment ought
to be meaningful and timely. All the stakeholders have to realize that the most
significant stakeholders are litigants and there interest cannot be relegated
to peril. If the judgments are delayed, the ultimate impact visits on
litigants. The judgment need to be simple, lucid and easy to comprehend. It is
hoped, that our judicial system has overcome many hurdles, more particularly, procedural
and it is hoped that the post script shall attract the attention, it deserve
for furthering the legal cause.
When the judges
pronounce a judgment after conclusion of arguments, only, if the arguments are
short and concise with to the point pleadings and verbose discussion is avoided
in the course of arguments, that the timely and well thought of judgment could
be pronounced more frequently. It needs to be
realized that the cumbersome arguments and pleading shall act as a deterrent
for timely dispensation of justice.
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ANIL K KHAWARE
Founder/
Sr Associate societylawandjustice.com
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