Making Sense of Judicial Language — Guest Post by Smaran Shetty


Much of our legal system is built not merely on the foundation of the black letter of the law, but also the manner in which judges interpret and give meaning to these words. The words “procedure established by law” or “equality before the law”, mean a great deal more than those words themselves. Similarly, routine words employed in statutes and sub-ordinate legislation fall for contested consideration before our judges. Does must always mean must? Is there a difference between means and includes? In which circumstance does subject to yield to notwithstanding? The list is endless, and lawyers need no introduction to this fertile playground. Language then, is at the heart of our legal system (and arguably at the heart of most legal systems).

The manner in which we attempt to understand, rationalize and implement the letter of the law, is a crucial project, and is dependent on the competence and ability of judges to do so. Observes of the Indian legal system have noted on several occasions that judgments from our Supreme Court and High Courts are becoming increasingly incomprehensible. They are becoming longer, populated by extensive references to counsel submissions, repeated reference to precedent without regard to context and written in consultation with a thesaurus. These are not new or novel criticisms and have been repeatedly written about elsewhere (illustratively see here and here). These criticisms are entirely valid, and merit our serious consideration. But I would like to take the criticism a little further, and examine the manner in which complicated judicial language impacts the conduct of other legal actors within our legal system.

Increasingly, judgments of the higher judiciary are written without consideration for the intended audience of their rulings. Appellate Courts occupy different capacities and their judgments are directed at different actors in the legal system. The Supreme Court exercises an expansive jurisdiction – each of which is deeply varied and pose their individual legal challenges. Judgments rendered by the Court, in response to and acting in these various situations should reflect the unique stylistic and substantive requirements of these judicial capacities. For instance, the language employed by a Judge when deciding constitutional questions, is surely different when issuing guidelines to courts below or dealing with procedural issues. The language of a court when it is occupying its supervisory or appellate capacity should and must be different from the language it uses when deciding constitutional questions.

The judgment delivered by Justice Vikramjet Sen in Dashrath Rupsingh Rathod v. State of Maharashtra, is a classic example of this problem. Dashrath involved a question of jurisdiction for criminal offences under the Negotiable Instruments Act, 1881. The issue was which magistrate would have the power to take cognizance and try offences under the Negotiable Instruments Act. Would it be the magistrate exercising territorial jurisdiction over the place of residence of the accused, the complainant, the bank which issued the instrument or the bank where the dishonor occurred? For the purposes of this post, I do not address the merits of the judgment or the concurring opinion of Justice Thakur, and restrict myself to the language employed by the court in deciding the question falling for consideration.

When one reads the lead opinion in Dashrath, one is immediately aware of the complex language it uses. It relies heavily on legal jargon and words that would require readers to pause and look up their meaning. The reasoning is also complex and arrives at its final conclusion after discussing the law on the issue from various different perspectives in a manner that makes understanding the final ratio a little difficult. It concludes with issuing guidelines on transferring pending criminal complaints to the appropriate jurisdictions as per the reasoning laid down in the judgment. It would be relevant to note that the law laid down in Dashrath has ceased to have any legal effect. It was first over-ruled by way of two successive Ordinances to the Negotiable Instruments Act, 1881 and was later formally amended in 2015.

The main problem with cases like Dashrath is not so much the difficult language or the complex reasoning, but the fact that the audience for whom such a judgment is delivered, would rarely ever be able to fully understand the judgment. The issue in Dashrath was one of jurisdiction, and was therefore a question of law that would have to be decided by a Magistrate at the very threshold. This has two important considerations. Questions of jurisdiction must be decided by the Magistrate at the very instance when the complaint is brought before it and is therefore a judicial determination requiring immediate consideration, and in most cases, cannot await the outcome of a detailed trial. Second, in most states, complaints under the Negotiable Instruments Act, are assigned to and heard by Magistrates who often are at the very bottom of the judicial hierarchy. To expect a Magistrate to read, understand and implement a complex judgment such as Dashrath that uses words such as “piquant factor” and “curial compassion” is not only unrealistic, it is also plainly unfair. Given that the issue of jurisdiction would have to be decided as a threshold question, it would have been ideal that the judgement was written in a manner that would assist a Magistrate in making this determination in a time bound manner.

The issue with Dashrath is not exclusively one of complicated language. More troubling is the fact that the judgement is driven by verbose legal discussion that has no bearing on the actual question falling for consideration. Recall that the issue at the heart of this case was one of jurisdiction, which the court only begins to address at paragraph 18 of the judgement (SCC paragraph numbers). Preceding this discussion, the Court discusses the issue of cause of action under civil law (while admitting that it would have no application in criminal proceedings). It then surveys the parliamentary debates dealing with the Negotiable Instruments Act, which it does not use to arrive at its final reasoning. It also examines issues of statutory interpretation in terms of using marginal notes and chapter headings to interpret a provision which again it does not tie into its final reasoning.

Anecdotally, it would not be out of place to mention that when the judgment was rendered in 2014, many judges before whom I appeared at the time, openly commented that they had not read the judgment. They remarked that it was either too long or too complex for them, and instead relied on summaries of the judgment that were prepared by other judges or by the administrative offices of the Court.

Contrast the language in Dashrath with the order passed by the Supreme Court on 30 March 2017, arising out of a suo-motto matter related to adopting a uniform criminal procedure for criminal trials across the country. The order lists the various submissions made by the amicus curiae in simple and easily readable terms and highlights the inadequacies in criminal procedure in some parts of the country. The order then concludes by issuing notice to the Registrar General of all the High Courts, so as to formulate a consistent procedure for criminal trials that would uniformly incorporate best practices. The simple language employed by the Court not only renders the order easily understandable, but it also ensures that the intended audience of the order, i.e. Registrar Generals of the High Courts (who are often either retired or in-service District Judges), can understand and appropriately respond to the underlying issue.

Complex judicial language should alert us to the devastating impacts it can have on our legal system. If superior courts write in complex and dense language, subordinate courts are placed in a difficult position in attempting to understand these rulings. This can lead to situations where the law is simply not understood from the primary source, reliance is placed on unauthenticated secondary sources and could be applied incorrectly or an in arbitrary manner. Appellate Courts must be therefore be mindful of the intended constituency of its opinions, to ensure that the law as laid down, is understood and correctly acted upon by these legal actors.

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