New Delhi: “The piotal besides fulcrum of the entire list engaging the parties at contest,” reads part of a 2017 order by the Himachal Pradesh High Court. If you cannot make sense of the decree, do not worry, for you’re in the excellent company of the Supreme Court of India.
A division bench of the Supreme Court comprising justices K.M. Joseph and P.S. Narasimha, which was hearing an appeal on the 2017 order passed by Justice Sureshwar Thakur and Ajay Mohan, pulled up the Himachal Pradesh HC this Monday, on account of the utterly incomprehensible language used in it.
The order was written by Justice Thakur, who is now a judge at the Punjab & Haryana High Court. On three different occasions in the past too, the language of his judgments has drawn the attention of SC judges, who had then appealed for concision and straightforward English.
The bench of justices Joseph and Narasimha expressed dissatisfaction with the language used in this HC order, and said it was “as incomprehensible as Latin”.
“How are we supposed to understand this? Is this Latin? We are unable to understand a word,” Justice Joseph, who led the bench, said.
#SupremeCourt hears an appeal against a Himachal Pradesh HC verdict
KM Joseph J.: How do we understand this judgment? Is this in Latin?
Sr Adv Nidhesh Gupta: we are unable to understand a word
SC: We may have to send it back to the HC for it to be re-written
Matter adjourned pic.twitter.com/zeiUCW7djw
— Bar & Bench (@barandbench) January 17, 2022
Senior advocate Nidesh Gupta, appearing for the appellant, concurred that he could not understand a word of the order passed by the HP High Court. He told the SC that from a reading of the trial court order and a few sections of the HC order, he could only figure out the nature of the dispute as one involving property.
“The learned Single Judge, accepted the report of the Local Commissioner concerned, whereafter, it in consonance therewith, rendered a final decree of partition by metes and bound, of, the hitherto undivided suit property,” part of the High Court order reads.
“The necessity of making an incisive circumspect evaluation, of, the testifications rendered by, aforesaid Dws, (i) is sparked by the plaintiffs/respondents herein, making strenuous effort, to, bely the recitals borne therein, (ii) also theirs making a fervent effort, for earmarking the factum, of it, being merely a device or a contrivance deployed by the defendant, to, in collusion with one Mohinder Pal, invent tenancy with respect to the commercial establishment concerned,” it further continues.
The SC bench directed the parties to find an amicable settlement, while saying “we may have to send it back to the High Court for it to be re-written”, and adjourning the case till 24 January.
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3 previous instances and a mention in a book
In 2017, a SC division bench of justices Madan Lokur and Deepak Gupta (both now retired) had pulled up the Himachal Pradesh HC for the convoluted way in which an order on a property case was authored, ordering the HC to take up the matter afresh on merits.
“For facilitating its consummation, though the learned executing Court stood enjoined to pronounce an appropriate order, contrarily it by relegating the impact of the aforesaid germane factum probandum comprised in the enforceable executable conclusive decree, has inaptly dismissed the execution petition,” the HC had said in the order before the court.
This order was also authored by Justice Thakur.
“It is not possible to comprehend the contents of the impugned order passed by the high court. The order passed by the high court is, therefore, set aside and the matter is remanded to the high court for fresh consideration on merits,” the apex court had said.
Then, in December 2018, the SC had expressed dissatisfaction with the length of an order passed by the same judge in a remand case. In a highly voluminous order, the HC had devoted more than 60 pages in a simple matter, remanding the case back to the first appellate court.
An SC bench of justices A.M. Sapre and Indu Malhotra stressed the importance of conciseness and economy of language in authoring judgments. “Brevity being a virtue, it must be observed as far as possible while expressing an opinion,” the bench had said.
Last year in March, the apex Court had once again taken exception to the lack of clarity of a Himachal Pradesh High Court judgment — written by Justice Thakur — before it on appeal.
Justices D.Y. Chandrachud and M.R. Shah had then re-emphasised the importance of judgments being comprehensible not only to lawyers, but to common citizens too. The SC had advocated using more straightforward language, easily understood across the board.
In his book, Anita Gets Bail, politician, journalist and economist Arun Shourie noted how he was taken “by surprise” by the orders of Justice Thakur. Shourie has reproduced several of his judgments, all written in similarly impenetrable language. Shourie wrote that even if a judge “is the fairest of all”, language is an index of one’s thought process.
“A person whose flow of thoughts and words is such — and has been for years — is a High Court judge,” Shourie wrote in the book.
Justice Thakur’s career
Justice Thakur had started legal practice in the Himachal HC in 1987, and handled civil, criminal, and constitutional work. He served as the additional standing counsel for the central government for six years and has represented the Union of India in the Himachal HC.
Justice Thakur was first appointed to the bench in 2001, as the additional district and sessions judge at Dharamsala. He has presided over various courts, including the labour court, as well as the District Consumer Disputes Redressal Forum, Shimla.
He was finally elevated as an additional judge of the Himachal Pradesh High Court in 2014.
Justice Thakur had been recommended for transfer to the Allahabad High Court in September 2021. However, he was finally transferred to the Punjab and Haryana High Court on the recommendation of the Supreme Court Collegium. He has assumed charge at this high court in October and has a tenure of three more years.
Notably, if the Supreme Court decides to send the 2017 order for a redraft, the matter will now be before a different bench of the HC, as Justice Thakur is no longer at the Himachal Pradesh HC.
(Edited by Saikat Niyogi)
Also read: Arun Shourie’s ‘Anita Gets Bail’ a damning indictment of opaque & inefficient judiciary