Judges seem to be conspiring to amplify the extent of misery affiliated with my life. As I slave upon their convoluted novellas, I can almost imagine them leaning back upon their high chairs in some remote dungeon, mirthfully rubbing their hands together, while cackling away in glee.
So, whenever I am allotted a Justice Patel judgment, to put it subtly, I am quite pleased.
Well, that was a bit of an exaggeration. This is probably a more apt representation of the extent and duration of joy I experience.
Of course, in no way am I insinuating that I am anything like Brad Pitt.
The man’s hideous!
Now that I have sufficiently embarrassed myself, let me get to the core concern.
GoAir airlines took issue to Indigo Airlines using “Go” in their website address: GoIndigo.com. For reasons not yet disclosed, GoAir also has an issue with Google. The order states in no unclear terms, that the offending portion is not the “Go” in “Google”.
An order (found here) on the issue, authored by Justice Patel, attempts to be rather witty. While I personally was charmed by the wit, the point of this piece is not to inspire odes to it. Rather, it is to analyze such writing’s propriety in a judicial set-up and its effects.
In the order, J. Patel referenced GoAir constantly by using words which started with “Go”. He made it even more obvious by italicizing the “go” part of the words. It is a refrain throughout the order.
Here is an excerpt:
“…Mr. Jamsandekar’s immediate goal is to file a sur-sur-rejoinder. He says that there is new material introduced by Indigo in sur-rejoinder and he is going to show actual confusion…”
The question is: Is such writing appropriate?
Prior to delving into the above question, we first need to understand the purpose of judicial writing.
The fundamental objective of judicial writing is to convey, to the parties and the public, the reasoning behind a decision. It enables a form of scrutiny that restrains the court from acting arbitrarily. Keeping this in mind, let us look at the arguments for inclusion of judicial humour.
Arguments in Favour of Judicial Humour
Firstly, we need to understand that writing is an intensely personal affair. When we write in our own unique “voice”, the gap between our thoughts and our writing narrows. Similarly, when Judges write in their natural style, without restraints, they are able to better convey their reasoning.
Furthermore, by virtue of limited adulteration between thought and writing, underlying assumptions, biases and perspectives become more evident. This, in turn helps readers understand more than just the superficial level of the reasoning. Hence, if a judge’s natural style is quirky or witty, he should not be curbed.
In order to understand the next argument, let us consider this famous children’s story:
A popular sage strode into Akbar’s court and declared, “I know everything that there is to know”. He probably said this a tad bit more eloquently.
The famous courtier Birbal, perpetually interested in proving every poor soul on the planet wrong (almost to the extent of a psychological illness), set out to find a bald man.
Given the dearth of hair regeneration medication at the time, in addition to the omnipresent stress caused by the possibility of being trampled upon by the king’s lunatic elephant, I surmise locating one wasn’t too much of a hassle.
Upon finding said bald man, Birbal asked him to present himself at court in a wig.
Said bald man, evidently not having anything better to do, presented himself at court in a wig.
All set, Birbal asked the sage, “Oh sage, pray tell us the number of hairs that this man possesses.”
The sage replied, “1.07 lakh follicles.”
Shortly after, Birbal pulled the wig off, for the court to feast its eyes upon the bald man’s head.
Few records discuss the emotions running through the bald man’s head during the proceedings, but I wouldn’t be entirely wrong if I were to guess that he was strongly reconsidering his choices in life.
Anyway, oblivious to the poor man’s emotions, Birbal returned home triumphantly.
Think about what would have happened if Birbal, had instead, done the following:
Clear his throat, pause for dramatic effect and then speak slowly in a deep voice:
“My friends, let this man not fool you.
Knowledge is too vast.
One man can never fathom the breadth…”
Either Birbal would have been treated to medieval footwear, or completely ignored. The courtiers were far too star struck by the sage’s panache to have responded to conventional argumentation techniques.
Fallacious narration of childhood fables aside, the point that we need to note is humour, especially satire, is one of the best tools to cut through the shackles of conventional wisdom. Whenever we deal with topics like religion, criticism is often met with hostility. Therefore, satire could be used as a first level argumentation technique to lure people outside their pre-set mould of resistance, after which conventional argumentation techniques could be used to engage with an otherwise hostile audience.
Please note that I am not referring to the kind of humour that is used to “lighten the mood”. I am referring to that kind of humour that itself makes an incisive argument. The kind of humour that makes people question standard beliefs.
Let us now look at the detrimental effects of judicial humour.
Arguments Against Judicial Humour
“Judicial humour is akin to cracking a sexist joke at a feminist’s funeral.”
Prateek Surisetti
In Brown v. State, the court’s judgment was on these lines:
“The D.A. was ready
His case was red-hot.
Defendant was present,
His witness was not.
“This trial was not fair,”
The defendant then sobbed.
“With my main winess absent
I’ve simply been robbed.”
“If you still say I’m wrong,”
The able judge did then say
“Why not appeal to Atlanta?
Let those Appeal Judges earn part of their pay.”
To continue civil cases
The judge holds all aces.
But it’s a different ball-game
In criminal cases.”
Fortunately, the judgment reversed the earlier court’s sentencing order.
Otherwise, if his sentencing order contained what sounds like a nursery rhyme, it wouldn’t have been wholly inappropriate of the freshly sentenced to have a go at his lordships jaw with his meanest right hook.
Litigants care deeply about the matter under litigation. Given the value that parties attach, no concern deserves to be mocked. Therefore, due consideration should be given to the weight of the matter at hand.
Reconciliation
I am not going to sit on my moderately comfortable excuse of a chair and judge J. Patel’s order. But what I will do is lay down some guidelines to balance the competing concerns.
In the following cases, humour should be absolutely avoided:
- In cases involving life, death, imprisonment or other severe consequences. I can’t draw a line, but judges need to keep in mind the gravity of the matter.
- Humour that directly mocks or ridicules the parties. Humour that is based in ridiculing the parties should be avoided.
Keeping the above two restrictions in mind, humour should be used in the following cases:
- To make analytical points.
- If a particular judge’s natural style of writing is witty or quirky, he need not restrain himself. This, as argued earlier, allows for lesser adulteration between thoughts and writing.
Some might argue that the mere presence of humour ridicules the parties and therefore, should be completely avoided. I submit that this is an unreasonable stance to take, as it strips judges of the opportunity to make use of the advantages of humour (outlined above). Hence, a reasonable stance seems to be to strictly avoid humour in cases of life and death, and to avoid, in all cases, that kind of humour that derives itself out of making fun of parties directly.
All in all, humour is best served in judicial writings as a by-product. Concerted efforts towards levity should be avoided as it mars the writer’s natural style.
Chief Reference:
“Beg your Pardon, my Lord, But it just isn’t Funny”: A research paper I authored.
In response to this piece, a friend of mine (Samrat), posed two questions:
a. How do you identify a “natural style” or “voice”?
b. Why shouldn’t judges put in concerted efforts to become better writers?
Response to (a).
This piece was not written for the external observer to identify what is problematic and what is harmless. It is written more as a guideline for judges or future judges. If the judge thinks writing humour is his natural style, he should not be curbed.
An external critique cannot be brought in to judge such things.
To this Samrat responded:
How will judges themselves identify what is natural and what is not?
Instead of going into what is “natural” and what is not, I argue that a judge’s goal should be to be as clear as possible. The question in his mind needs to be:
How can I be as clear with the reasoning as possible?
Within that framework, subject to the caveats mentioned in my piece above, I am fine with whatever the judge wishes to do. But at no point, should the question in the judge’s mind shift to “How can I make this witty?”.
In instances, such as writing a rhyming poem, I believe that the primary aim of clarity was subordinated. And hence, humour was not a byproduct, as I see it.
Response to (b)
When I say “natural” writing, I am not referring to the first draft of a writing.
OF course, judges can improve on it.
Editing is stlll subject to, what I think is the writer’s “natural” style.
Concerted efforts to make the writing more clear, in whichever way the judge wants (that comes naturally to him), is not a problem according to me.
What is a problem is concerted efforts to make a piece funny.
All in all, Samrat’s response has helped me fine tune my analysis, to the extent that I now think that it is not the writer’s “concerted efforts” that is the problem, but the writer’s primary intention behind the efforts.
A well written piece! I would love to read the research paper, hence it would be great if you could provide the link for the same.
Hello,
Thank you for the compliment.
Unfortunately, I haven’t put it out in the public domain yet.
I intend to work on it and then probably have it published somewhere.
So, I am not incredibly comfortable with putting it in the public domain at the moment.
Hello!
Darn! I understand your inhibition to put it up on the public domain. Do put it up the link here when you get it published!
All the best!
Brilliant! One’s only concern is the quality of sense humour of some (nameless) judges.
Hello Sir,
Thank you for the compliment.
I wouldn’t blame the judges for being bad at being humorous. Largely because it is a subjective judgment. But it is another affair all together when judges pick on parties.
In such a scenario I can objectively point fingers at the judge for bullying the parties. We can chide them for being insensitive, but I wouldn’t be too perturbed with their lack of comic sense.
By “quality”, if you are referring to nature of the humour and not the extent of the humour’s ability to be funny, I am in complete agreement with you.
There doesn’t seem to be a way of editing one’s posts here (as there is on Facebook). My last post went incomplete. I was going to add that in my opinion the only really appropriate form of judicial humour is irony, and getting the right may be too sophisticated for many, perhaps most, judges.
I find it interesting to note your opinion as I had taken a very different approach in my research paper. Instead of pointing out the types of humour that are acceptable, I had pointed out types of humour which are inappropriate.
One was, as pointed in the piece above, humour based in ridiculing parties.
This is the kind of humour that is based in making fun of the parties.
For instance, in one divorce case, the judge made fun of the couple.
The other kind of humour, which I find problematic, though not as problematic as the above type, is “incongruous humour”.
This type of humour is “funny” only because it is found in a judgment.
For example, a poem or a parodies of famous works.
These require concerted effort towards trying to be funny, rather than trying to be clear. Hence, I find it problematic.
Finally, I don’t see why you think “irony” is the ONLY kind of appropriate humour. I understand how it is subtle and hence, unlikely to hurt sentiments, but I think there are other kinds of humour that could be used.
Here is one such example:
“The appellant has attempted to distinguish the factual situation in this case from that in Renfroe v. Higgins Rack Coating and Manufacturing Co., Inc. He didn’t. We couldn’t.”
Also, I think analogies can also serve both analytical and humourous purposes.
Point taken.
In fact as a quasi-judicial authority I have stooped to worse ; as Excise Commissioner, in Delhi, around 1980, when dismissing an appeal by a brewery which had been penalised after a mosquito (or some such creature) was found in a bottle of beer. The Appellant brought a lawyer who presented the incident as quite unimportant; I quoted a limerick: “An epicure dining at Crewe/ Found quite a large mouse in his stew./ Said the waiter ‘Don’t shout/ And wave it about/ Or the rest will be wanting one too.!'” Twenty years later someone who had been a clerk in the Department happened to meet me and said, “Sir, you used to write beautiful orders. I remember you used to quote poetry.”
Sorry, I couldn’t resist sharing the story.
It is to liken to say, a man condemned to death should not have the walls of his cell painted bright, because the death is a serious subject and the colours of his cell should remain grey or sombre, because death is sombre and a serious subject.
Wit in a judgment is rarely seen and wit I say, must punctuate the otherwise sombre proceedings of the court, because judgments otherwise will be grey. Got it?
Tempered wit is welcome in a judgment much to the chagrin of a party.
Hello Mathew,
The analogy is problematic because the bright walls are not the ones sentencing the condemned.
Judicial humour while sentencing somone, is more like whacking somebody with a baseball bat and then trying to cajole them with some joke you read somewhere. I don’t think it would work out.
I am all for uplifting moods, but due sensitivity should be afforded to the parties.
Also, humour just for the sake of it, detracts the writer from his core objective of clarity. If that doesn’t happen, I am fine.
Fantastic article. I agree with your take on what is not appropriate but do have this to say. Eloquence whence spewed in the right circumstances carries with it wit because it is mesmerisingly beautiful, as words carry a lot more weight than anything else. Of course, as stated, there is a time and place for everything and one ought to be careful given the sensitivity which is associated with legal proceedings.