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Long and short of judgements

NOVEMBER 30, 2022

By Vijay Kumar

I seek your indulgence and patience in reading the paragraph below:

The present appeal projects and frescoes a scenario which is not only disturbing but also has the potentiality to create a stir compelling one to ponder in a perturbed state how some unscrupulous, unprincipled and deviant litigants can ingeniously and innovatively design in a nonchalant manner to knock at the doors of the Court, as if, it is a laboratory where multifarious experiments can take place and such skillful persons can adroitly abuse the process of the Court at their own will and desire by painting a canvas of agony by assiduous assertions made in the application though the real intention is to harass the statutory authorities, without any remote remorse, with the inventive design primarily to create a mental pressure on the said officials as individuals, for they would not like to be dragged to a court of law to face in criminal cases, and further pressurize in such a fashion so that financial institution which they represent would ultimately be constrained to accept the request for "one-time settlement" with the fond hope that the obstinate defaulters who had borrowed money from it would withdraw the cases instituted against them.

You must have noticed that the entire paragraph is one sentence, yes one short sentence. This sentence is considered to be the longest sentence in a judgement. It was by Justice Dipak Misra in the case of Mrs Priyanka Srivastava vs State of UP - 2015-TIOL-45-SC-MISC - in the Supreme Court on March 19 2015.

Another sample of Justice Misra's long sentences is this from - State of Maharashtra through CBI Vs. Vikram Anantrai Doshi & Ors in the Supreme Court on 19th September, 2014.

The centripodal issue that strikingly emerges, commanding the judicial conscience to ponder and cogitate with reasonable yard-stick of precision, for consideration how far a superior court should proceed to analyse the factual score in exercise of its inherent jurisdiction bestowed upon it under Section 482 of the Code of Criminal Procedure or under Article 226 of the Constitution of India, to quash the criminal proceeding solely on the ground that the parties have entered into a settlement and, therefore, the continuance of the criminal proceeding would be an exercise in futility, or the substantial cause of justice warrants such quashment to make the parties free from unnecessary litigation with the assumed motto of not loading the system with unfruitful prosecution, of course with certain riders, one of which, as regards the cases pertaining to commercial litigations, appreciation of predominant nature of civil propensity involved in the lis or social impact in the backdrop of the facts of the case.

Justice Dipak Misra was famous not only for the length in his sentences, but also the depth, especially in employing the English Language.

See the following sentences from the Priyanka Srivastava vs State of UP judgement, mentioned above.

The facts, as we proceed to adumbrate, would graphically reveal how such persons, pretentiously aggrieved but potentially dangerous, adopt the self- convincing mastery methods to achieve so. That is the sad and unfortunate factual score forming the fulcrum of the case at hand, and, we painfully recount.

Such persons, pretentiously aggrieved but potentially dangerous, adopt the self-convincing mastery methods to achieve so.

The labyrinth maladroitly created by the respondent does not end here. It appears that he had the indefatigable spirit to indulge himself in the abuse of the process of the Court.

If a borrower is allowed to take recourse to criminal law in the manner it has been taken it, needs no special emphasis to state, has the inherent potentiality to affect the marrows of economic health of the nation.

When a citizen avails a loan from a financial institution, it is his obligation to pay back and not play truant or for that matter play possum. He has been able to do such adventurous acts as he has the embedded conviction that he will not be taken to task.

He used to famously write judgements full of English.

In Sterling Agro Industries Ltd Vs Union of India - 2011-TIOL-457-HC-DEL-CUS-LB, Chief Justice Dipak Misra (as he then was) of the Delhi High Court, heading a Full Bench observed, (for your convenience and ready reference, I am giving you the meanings of some of the words, phrases and doctrines, he used.

In view of the similitude of the principal controversy pertaining to the jurisdiction of the High Court of Delhi being involved in these writ petitions, they were heard analogously and as the said issue is the only question of reference, it is being adverted to and dealt with by a singular order. For the sake of convenience, we shall adumbrate the facts in W.P.(C) No.6570/2010.

Similitude - likeness; similarity

Advert - to turn attention. Singular - please note it is not single.

Adumbrate - to give a sketchy outline of.

Before we proceed to analyze and appreciate the ratio decidendi in New India Assurance Company Limited (supra), it is seemly to exposit the necessitous primary facts averred in the present writ petition.

Ratio decidendi - legal rule derived from, and consistent with, those parts of legal reasoning within a judgement on which the outcome of the case depends.

Seemly - proper or fitting

Exposit - set forth

Necessitous - needy

Regard being had to the aforesaid historical backdrop, we shall presently proceed to deal with the Full Bench decision …..

Presently - as generally misunderstood and misused in India and America, presently does not mean 'at present', it means 'in the immediate future' as correctly used by the judge.

On a nuanced scrutiny of the decision of the Full Bench, it is clear as day that it has expressed the view which can be culled out in seriatim as follows:

nuance - to give subtle differences

Presently, we shall proceed to advert to the authorities that have been referred to and relied upon by the Full Bench for the simon pure reason that understanding of the principles exposited therein would enable us to appreciate the enunciation of the law by the Full Bench and also refer to certain authorities that have been cited before us.

Simon pure - Genuinely and thoroughly pure

From the aforesaid pronouncements, the concept of forum conveniens gains signification.

Forum conveniens: The court in which an action is most appropriately brought, considering the best interests and convenience of the parties and witnesses.

Signification: meaning/sense/significance

The principle of forum conveniens in its ambit and sweep encapsulates the concept that a cause of action arising within the jurisdiction of the Court would not itself constitute to be the determining factor compelling the Court to entertain the matter.

Encapsulate: to sum up in a short or concise form; condense; abridge

The judgement of the Allahabad High Court in the Ayodhya Case is perhaps the longest judgement in history, running into some 6000 pages in 21 volumes. The judgement referred to 274 books and the index to referred books ran into 17 pages. It referred to 798 citations. Even the Supreme Court judgement on appeal against this High Court order ran into 1045 pages beating the Kesavananda Bharati judgement as the longest judgement by the Supreme Court.

The Kesavananda judgement ran into nearly seven hundred pages. Justice YV Chandrachud, the junior-most judge in the 13 member Bench started his judgement with,

I wanted to avoid writing a separate judgment of my own but such a choice seems no longer open. We sat in full strength of 13 to hear the case and I hoped that after a free and frank exchange of thoughts, I will be able to share the views of someone or the other of my esteemed Brothers. But, we were overtaken by adventitious circumstances. Counsel all round consumed so much time to explain their respective points of view that very little time was left for us to elucidate ours.

He observed,

The largest Bench sat for the longest time to decide issues described as being of grave moment not merely to the future of this country but to the future of democracy itself.

And concluded with:

I began this judgment by saying that I wanted to avoid writing a separate judgment of my own. Are first thoughts best?

Referring to the recent 153-page judgement of the Supreme Court in the Mohit Minerals case, a senior GST officer asked me, "How can a judge write a 150-page judgement? Do they have somebody to write for them?" I told him, "Judges are not Commissioners and they don't have adjudication superintendents to write their judgements. They do write their own judgements". And a 150-page judgement is not really all that lengthy!

In Board of Trustees of Martyrs Memorial Trust and another Vs. Union of India and Others - [Civil Appeal No. 4444 of 2010], Justice R.M. LODHA observed,

Brevity in judgment writing has not lost its virtue. All long judgments or orders are not great nor brief orders are always bad. What is required of any judicial decision is due application of mind, clarity of reasoning and focused consideration. A slipshod consideration or cryptic order or decision without due reflection on the issues raised in a matter may render such decision unsustainable. Hasty adjudication must be avoided. Each and every matter that comes to the court must be examined with the seriousness it deserves.

Until Next week

Sub: Legalese and Plain English

Plain English is alien to "Legal English. Obscurity is the hallmark of legalese. Lord Denning, in his magnum opus titled "The Discipline Of Law" observed: "Obscurity in thought inexorably leads obscurity in language".

One should write in order to express and not impress. Writing is meant to be understood and not misunderstood. This should borne in mind by all officers of the Court.

Posted by Chakravarthi Bommakanti

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