SC slams Bombay HC for ‘unintelligible’ order, but courts are full of convoluted rulings

From former CJI Dipak Misra’s 200-word-long sentences to high courts’ ‘hereat wherewithin’ orders, judges have a history of using complicated language.

File image of the Supreme Court of India | Photo: Manisha Mondal | ThePrint

New Delhi: The Supreme Court’s outburst Monday over an “unintelligible” order passed by the Aurangabad bench of the Bombay High Court baffled many.

In a brief but curt order, a bench comprising Justices Deepak Gupta and Aniruddha Bose set aside the high court order, saying it “could not decipher what has been decided by the high court”.

“We request the High Court to pass an order which we can understand,” the bench said.

The two-page order passed by the high court did, in fact, provide little insight into the case. Sample the second paragraph of this order:

“The submissions made show that the present petitioner for the offence punishable under Section 324 read with Section 149 of the Indian Penal Code and it is at the stage of final argument in the matter. An investigation in Crime Register No. 88 of 2016 is not completed, there is no question of taking cognizance of the offence allegedly against the present petitioner by other side. It was always open to the present petitioner to bring on record the relevant circumstances which can be said to be in favour of the petitioner. For that, the of proceeding of Sessions Case which is on the verge of the completion and decision cannot be stalled. As the present proceeding is premature in respect of Crime Register No. 88 of 2016. Present proceeding is also disposed of.”

But this is hardly the first time judges have authored a convoluted order.

A 198-word sentence, another 226 words long

Consider, for instance, this opening sentence written by former Chief Justice of India Dipak Misra:

“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.”

This is a single, 192-word-long sentence in a judgment delivered in March 2015. Observers wondered if this was the longest sentence ever written in a judgment.

However, if it was the longest, Justice Misra beat his own record a year later in May 2016, in a case which upheld criminal defamation.

The 268-page judgment with 198 paragraphs had this as its second sentence:

“The assertion by the Union of India and the complainants is that the reasonable restrictions are based on the paradigms and parameters of the Constitution that are structured and pedestaled on the doctrine of non-absoluteness of any fundamental right, cultural and social ethos, need and feel of the time, for every right engulfs and incorporates duty to respect other’s right and ensure mutual compatibility and conviviality of the individuals based on collective harmony and conceptual grace of eventual social order; and the asseveration on the part of the petitioners is that freedom of thought and expression cannot be scuttled or abridged on the threat of criminal prosecution and made paraplegic on the mercurial stance of individual reputation and of societal harmony, for the said aspects are to be treated as things of the past, a symbol of colonial era where the ruler ruled over the subjects and vanquished concepts of resistance; and, in any case, the individual grievances pertaining to reputation can be agitated in civil courts and thus, there is a remedy and viewed from a prismatic perspective, there is no justification to keep the provision of defamation in criminal law alive as it creates a concavity and unreasonable restriction in individual freedom and further progressively mars voice of criticism and dissent which are necessitous for the growth of genuine advancement and a matured democracy.”

A 226-word sentence.

The rest of the judgment was equally convoluted, with the use of phrases such as “proponements in oppugnation” and “…and made paraplegic on the mercurial stance of individual reputation and of societal harmony”.

‘Variegated cancerous concoctions of corruption’

In another such instance, the Supreme Court, in its February 2017 judgment convicting AIADMK general secretary V.K. Sasikala in the disproportionate assets case, used phrases such as “octopoid stranglehold” and “variegated cancerous concoctions of corruption”.

The bench, comprising Justices P.C. Ghose and Amitava Roy wrote a total of 570 pages, the last seven of which were a “supplement” — an essay of sorts by Justice Roy. While the essay was meant to express concerns over growing corruption, it made headlines for its verbosity.

Here is an excerpt: “A growing impression in contemporary existence seems to acknowledge, the all pervading pestilent presence of corruption almost in every walk of life, as if to rest reconciled to the octopoid stranglehold of this malaise with helpless awe. The common day experiences indeed do introduce one with unfailing regularity, the variegated cancerous concoctions of corruption with fearless impunity gnawing into the frame and fabric of the nation’s essentia.

“Emboldened by the lucrative yields of such malignant materialism, the perpetrators of this malady have tightened their noose on the societal psyche. Individual and collective pursuits with curative interventions at all levels are thus indispensable to deliver the civil order from the asphyxiating snare of this escalating venality.”

‘Hereat wherewithin’

India’s high courts have also often faced the Supreme Court’s wrath for writing unreadable judgments.

In April 2017, an apex court bench comprising Justices M.B. Lokur and Deepak Gupta set aside a judgment passed by the Himachal Pradesh High Court, noting that “it is not possible to comprehend the contents” of the judgment.

Here is a paragraph from the high court judgment, which was ruling on a property dispute involving a landlord and a tenant he tried to evict: “[The]…tenant in the demised premises stands aggrieved by the pronouncement made by the learned Executing Court upon his objections constituted therebefore vis-a-vis the execution petition constituted thereat by the Decree holder/landlord, wherewithin the apposite unfoldments qua his resistance to the execution of the decree stood discountenanced by the learned Executing Court.

“However, the learned counsel… cannot derive the fullest succour from the aforesaid acquiesence… given its sinew suffering partial dissipation from an imminent display occurring in the impunged pronouncement hereat wherewithin unravelings are held qua the rendition recorded by the learned Rent Controller…”

For the record, the high court ruled in the tenant’s favour. But the judgment eluded the lawyers involved in the case too. Aishwarya Bhati, the lawyer for the tenant had told Hindustan Times at the time that an appeal ordinarily takes two days to prepare. “However, in this case, I took more than a week because the facts of the case were unclear,” Bhati had said.

In another judgment passed in April 2017, the Supreme Court set aside a Rajasthan High Court verdict, which it said lacked everything needed to adjudicate a case — from the facts to the submissions put forth by the parties and the issues framed.

Perplexed with the order, the Supreme Court had explained, “…the least which is expected of is that the order which decides the lis between the parties should contain the brief facts involved in the case, the grounds on which the action is impugned, the stand of the parties defending the action, the submissions of the parties in support of their stand, legal provisions, if any, applicable to the controversy involved in the lis, and lastly, the brief reasons as to why the case of one party deserves acceptance or rejection, as the case may be.”

‘Flowery language no substitute for expression’

Balram Gupta, director of the Chandigarh Judicial Academy, said a “concerted effort” should be made to avoid such instances.

“Every order or judgment must be understandable and digestible. It must clearly unfold the mind of the judge. It must speak of due application of mind. If the apex court fails to decipher it, God save the parties,” Gupta told ThePrint.

“Similar situations have arisen earlier also. A concerted effort must be made to avoid such situations.”

Supreme Court advocate Shivam Singh pointed out that there was no special training in legal writing for law students or lawyers.

“All through legal education, there is no standalone course which teaches legal writing. It is only something that you pick up on the job, through peer learning or through wisdom passed on by your seniors. So, in the absence of any standards set in stone, a lot of people make the mistake of thinking that flowery language is a substitute for the expression being communicated,” Singh said.

He added that more often than not, judges write orders aimed solely at being read by the legal community.

“It happens very often that a judgment is passed and all the lawyers who have fought the case understand it, but the party who has approached the court needs a lawyer to explain it to them. This is one of the biggest shortcomings of the Indian legal system. This is an aspect of access to justice that is often ignored,” Singh said.

While he acknowledged that the Supreme Court has finally started issuing some judgments in vernacular languages, Singh said that “the original judgment itself is largely inaccessible because there is no formal training for writing it”.