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Judging Judges (I): Whither Access to Law?


pic-get to the point

And finally, I give vent to my long held lament against diarrhoeal decisions! Decisions that ramble on for reams on end, and come at the cost of both legal logic and jurisprudential depth.

Decisions that are king size (paper wise), but dwarf like (merit wise). As we found in the case of a prominent IP judge from Delhi whose decisions are fairly long winded; but which (as the prolific Prashant Reddy demonstrated in this potent post here) are absolutely shoddy on legal reasoning. I believe he is a wonderful human being and stands for a high degree of integrity, but his decisions really leave a lot to be desired. I hope it gets better in the days to come, particularly if he is making chair at the IPAB.

For those interested, here is my piece in the Wire , where I make the pitch for a crisp crafting of judicial dicta and argue that in order to be more “worthy”, the law must be less “wordy”! Else we run the risk of contravening one of the most cardinal commandments of any legal system: namely that of promoting access to law for for the common man (the man on the basvangudi bus, as I’ve labelled him in the piece).

I’ve situated my key thesis around the immediate context of a highly suspect pseudonymous letter published by the TOI; one by an alleged litigant that cast aspersions on a very well regarded judge of the Delhi high court, Justice Gita Mittal. A letter that unfortunately was long on asinine assumptions and short on logic.

The link to my piece is here, and it’s also reproduced below:

Judging Judges by the Length of their Judgment is a Bad Idea

BY SHAMNAD BASHEER ON 16/06/2016 • LEAVE A COMMENT

Law has to be made accessible to the lay person by keeping it short and simple.

A reckless story in the Times of India  recently drew outrage from the legal fraternity, including a number of reputed senior lawyers. The publication was of a suspicious letter by a fictitious litigant to the Chief Justice of India (CJI), casting serious aspersions on Justice Gita Mittal, a well-regarded judge of the Delhi high court. In pertinent part, the letter appeared to allege that her judgments were way too short; apparently she penned only “63” pages in the whole month of January.

The assumption in this assertion is that judges ought to craft unduly long decisions in order to demonstrate judicial merit; an assumption that bears some interrogation. More importantly, this assumption forces us to ask: whither access to law? And intelligible access at that? Don’t decisions that meander aimlessly for pages on end thwart the main mission of making the law more known to the common man? Could less be more, when it comes to justice dispensation?

Quantity vs Quality

The quickest heuristic when attempting to gauge merit is “quantity”. And in that vein, we often equate “more” with better. Longer answers in exams means more marks, as I quickly realised in school (and even law school for that matter). Similarly, longer decisions from their lordships equate to greater judicial merit!

And yet a quick look at some of our laboriously long-winded decisions are enough to dispel this asinine assumption. The verbiage, in fact, serves to mask the sheer lack of jurisprudential depth. More worryingly, one has to really search for the law or precedent within, if one is lucky enough to find one. They say ignorance of the law is no excuse; but when finding the law within reams of intoxicating verbiage is almost as difficult as that of a needle in a haystack, can the lay person be blamed for failing to follow these coveted canons?

Sample this Supreme Court decision on the constitutionality of criminal law provisions that penalise defamation. The judgment runs into a good 268 pages and is replete language and logic that can only be described as tortuous and twisted. It begins with:

“This batch of writ petitions preferred under Article 32 of the Constitution of India exposits cavil in its quintessential conceptuality and percipient discord between venerated and exalted right of freedom of speech and expression of an individual, exploring manifold and multilayered, limitless, unbounded and unfettered spectrums, and the controls, restrictions and constrictions, under the assumed power of “reasonableness” ingrained in the statutory provisions relating to criminal law to reviver and uphold one’s reputation.”

As Tunku Varadarajan tellingly notes in a piece for The Wire, this sentence is “so convoluted – and so riddled with adjectives – as to be impenetrable to lawyer and lay reader alike.” The next sentence is even worse, “surpassing the first in verbosity, obfuscation, flabbiness, meandering length, and analytical ineptitude.”

Or consider the Supreme Court’s landmark ruling in a case dealing with the constitutionality of the National Tax tribunal (NTT). While the court came down heavily on the government for its flippant tribunalisation of justice over the years, did it really need 270 pages to arrive at its finding? Let me reproduce a fictitious letter that I had addressed to the Supreme Court then (and posted on my Facebook page):

“Dear Supremes:

There is a beauty to brevity. Did you really require 270 pages to strike down the NTT as unconstitutional? Here is your break-up.

  1. You took more than 100 pages to reproduce all of counsels’ arguments. Please don’t get me wrong. We love our senior counsels, but seriously, repeating all of their arguments (and in full) can be a bit boring. Am sure you could have done this in under 10 pages or so.
  2. You then reproduced all the wisdom from earlier case law by your predecessors. Again we love case law, but was there really a need to reproduce tomes of earlier case law citing the very same propositions? Illustratively, you wasted a good 10-15 pages on the simple proposition that tribunals cannot divest high courts of their constitutionally guaranteed power of judicial review… a proposition repeated ad nauseamby countless earlier cases. Had you opted for precision here, I’m guessing you could have knocked off a good 80 pages from your judgment.
  3. As for the actual text of “your” decision (sans any reproduction of counsels’ arguments or that of old case law), one would have thought that 20 pages would have been more than sufficient.

In short, we might have had a good condensed decision of under 50 pages, had your lordships really believed in the power of precision. Sadly, as with most of us in the legal profession, you elected to unleash your garrulousness on a populace struggling to keep up with the law.

While those of our legal ilk will revel in the beauty of this navigational adventure (wading through countless pages to determine what is precedent and what obiter; what counts as your original propositions and what are mere citations from earlier case law etc), do spare a thought for the common man.. a species that all too often has to bear the brunt of an unforgiving Latin maxim that dicates that “ignorance of the law is no excuse”! How do you expect the common man to access the law when it comes layered with this level of verbosity? 270 pages is a put off for any “reasonable” man (or woman) on the Basavangudi bus!

In short, the point of my long winded rant is this: “to make the law more worthy, we need to make it less wordy!”

Concise Courts?

Unfortunately, the bard and his brief for “brevity” – that it is the soul of wit – have not found favour with our judges. And this brings me back to the current controversy involving Justice Mittal and her woeful lack of loquaciousness. I studied decisions delivered by her in January and February, months allegedly tracked by the fictitious litigant in his lamentable letter. Almost all of the decisions during this time were succinct and intelligible, offering a lucid encapsulation of the law and the facts. InAnup Mittal (Huf) vs M/S. Kanungo Co-Operative Group, she came down strongly on a lavish litigant who insisted on parking all of his four cars in the shared space of a co-operative housing society. And tellingly noted (in a crisp 30 page decision) as below:

“Perceptions that a person’s prosperity are relatable to his address and the vehicle he drives, has led to this paradox of people effecting property and vehicle acquisitions way beyond their real needs. The instant case manifests the mindless assertion of non-existent entitlements to accommodate such acquisitions despite the same being contrary to law, it adversely impacting constitutional rights of others, and resulting in environmental degradation. Perhaps illustrating the words of Mahatma Gandhi when he said: “Earth provides enough to satisfy every man’s need, but not every man’s greed.”

Even in the one decision (PICUP vs Pacquik) that crossed the 100-page mark, she made it a point to offer a useful summary right at the start, including a table of contents, rendering it easy to navigate, access and appreciate. Importantly, the judge delved into tort law, a much neglected area of Indian jurisprudence, and held (in a well-reasoned decision that traversed the intersection of tort and administrative law) that public officials held positions of trust and could be liable for damages under the tort law doctrine of “misfeasance in public office”.

My research also revealed that this is one judge who cares deeply about access to law and justice. In Sajid Ali vs State & Others, she ruled that a Delhi high court rule prohibiting the entry of litigants who did not show an identity card was unconstitutional. For it interfered deeply with the fundamental right to access courts, particularly for underprivileged sections that lived in the shadow of India’s “informal” economy and often did not carry any form of official identification. Unfortunately, her brother judge (and a third judge to whom the split verdict was referred) disagreed and we lost out on what might have been a landmark precedent. In pertinent part, she noted that:

“We cannot permit the high court or the courts subordinate to it, to become a privileged space accessible only to those with ration cards, driving licenses or identity documents by making courts inaccessible to the disadvantaged who are less likely to have government-issued documents of identification. We also cannot allow unreasonable restrictions on the right of public access to courts to stand, reach whereof is beyond addressing contemporary security concerns. To hold otherwise would not only violate a range of constitutionally protected interests, but would also infringe well-established principles central to our system of justice. Access to justice to all has to be the heart beat of every judge and the `mantra’ of every court’s administration.”

In a future article, I hope to highlight some of Justice Mittal’s other decisions to demonstrate their jurisprudential worth. And to make the larger point that gauging judges by the mere arithmetic of numbers does great disservice to them. Particularly in cases such as this one where a well-regarded judge has been wrongly wrung on a faulty metric. A judge blessed with exceptional legal caliber, inviolable integrity and a cathartic compassion that shines through each one of her decisions. But most of all, a strong desire to decode and democratise the law by keeping it short, simple and sweet; and yet without sacrificing any of the jurisprudential rigour that complex cases demand. Precisely the sort of attribute that we ought to encourage as we formulate a metric for evaluating our judges.

Shamnad Basheer is the Founder of IDIA, a movement to empower underprivileged communities through legal education.

ps: Image from here

Shamnad Basheer

Shamnad Basheer

Prof. (Dr.) Shamnad Basheer founded SpicyIP in 2005. He's also the Founder of IDIA, a project to train underprivileged students for admissions to the leading law schools. He served for two years as an expert on the IP global advisory council (GAC) of the World Economic Forum (WEF). In 2015, he received the Infosys Prize in Humanities in 2015 for his work on legal education and on democratising the discourse around intellectual property law and policy. The jury was headed by Nobel laureate, Prof. Amartya Sen. Professional History: After graduating from the NLS, Bangalore Prof. Basheer joined Anand and Anand, one of India’s leading IP firms. He went on to head their telecommunication and technology practice and was rated by the IFLR as a leading technology lawyer. He left for the University of Oxford to pursue post-graduate studies, completing the BCL, MPhil and DPhil as a Wellcome Trust scholar. His first academic appointment was at the George Washington University Law School, where he served as the Frank H Marks Visiting Associate Professor of IP Law. He then relocated to India in 2008 to take up the MHRD Chaired Professorship in IP Law at WB NUJS, a leading Indian law school. Later, he was the Honorary Research Chair of IP Law at Nirma University and also a visiting professor of law at the National Law School (NLS), Bangalore. Prof. Basheer has published widely and his articles have won awards, including those instituted by ATRIP, the Stanford Technology Law Review and CREATe. He was consulted widely by the government, industry, international organisations and civil society on a variety of IP issues. He also served on several government committees.

16 comments.

  1. AvatarAVP

    Well said. The comment, “The verbiage, in fact, serves to mask the sheer lack of jurisprudential depth”, is bang on !!! Sometimes longish judgments cannot be avoided. For ex, patent related judgments need to first come to grips with the underlying science/technology, before the law can be applied. But on other occasions, verbose judgments are just a fig leaf to cover an unclear understanding of the jurisprudence

    Reply
    1. AvatarAnonymous

      Its really laughable the way this analysis going and the timing at which these things are happening. The decisions what you are talking are lacking jurisprudence are bedrock of IP development in India. Myspace case has lead to amendment in IT Act. John wileys case was published in Fleet street report. Any one including Mr. Bashir or reddy or his favourate judge whom hes propogating has any judgment in published at such high level in his pandoras box wherein House of Lords judgements are published. For your kind information Mr. Reddy and so called very great lecturers like Mr. Basheer, the case of John Wiley was decreed and defendant suffered a decree. The Samsung case has made a divide in the world of thinking of exhaustion of rights. Telephone cases accepted FRAND agreement approach which is world over renown. Bio Similar case has laid down a jurisprudence which has been well tried in America in Sandoz case. So please do not teach him a law. Its shameful that you are causing prejudice to bright carrer of a person under this guise of shameful debate which is totally disgusting and out of the reality. I challenge you that you open any of his judgment and till the person is fully satisfied, he will not stop his open. But really sorry to say that his own fraternity people are against him because of this north and south vested interest. Very very sorry to Mr. Basheer and his team.

      Reply
    2. AvatarAnonymous

      And Mind you people that these comments are totally misleading and are at the hands of the vested right. Mr. Singh is the judge of caliber and he does not need any thing atleast from this gentry who are disfavouring his service to the society. We all IP lawyers are proud of him. These people are not knowing what they are saying. May god help those who don’t know what they are doing. This is because not merely High court but the entire Supreme Court has fullest level of regards and respect for his lucid judgments of his pen. But shamefully, these analysis, their timing and the condemnable approach itself smacks nothing but malafide.

      Reply
    3. Shamnad BasheerShamnad Basheer Post author

      You’re right. Some decisions require a detailed factual analysis and may contribute to the length.But even here, I really hope that factual assessment was clear and lucid (especially in patent cases). And I wish we had a robust enough factual assessment that didnt need prying open each time the case went up in appeal. Recall the Novartis case, where the Supremes didnt accord any deference at all to the lower fora decision and reopened very single factual determination for a fresh analysis. After reading the skeletal patent decision and the highly confused IPAB decision, one couldn’t really blame them.

      Reply
  2. AvatarAnonymous

    Lament! Who is Mr. Basheer to lament about. Ask anyone in the legal field that the loss caused by Mr. Singh’s retirement would be required to be lamented or the way Mr. Basheer has lamented is the correct approach. Shameless. A professor of law taking advantage of his position in such a way making mockery of someone who is doing service to the society. Very sad! three boos to Mr. Basheer, Mr. Reddy and his team for doing this vested interest business and launching this debate just to cause prejudicial environment.

    Reply
    1. Shamnad BasheerShamnad Basheer Post author

      Am just a lamentable professor lamenting about a lamentable state of case law brought about by a lamentable judge. And now I have you lamenting my comment?

      Reply
  3. AvatarAnonymous

    Favouritism is prevailing everywhere. The critics have stopped understanding their boundaries and have become misleading. Total mess in the system.

    Reply
    1. Shamnad BasheerShamnad Basheer Post author

      Yes indeed. We play favourites. We love judges that write lucidly and create robust jurisprudence. And we have issues with those that don’t. For we love the law and have a “vested” interest in ensuring a healthy spate of good jurisprudence. And if we “critics” didn’t exist, how else do we infuse some accountability into our cosy cabal of judges…. the only pillar that escapes scrutiny and accountability…and yet bats no eyelid when attempting to bring every other constitutional functionary (particularly the executive) to book!

      Reply
  4. AvatarAnonymous

    Lord Rama had told Sita that Kalyug would be like that Swain will eat corn while crow will eat pearl. Lord Krishna said that the day will come when people will curse the god and people will forget the difference between right and wrong. Now when Mr. Basheer teaches us as to how to come to point is like swain is eating corn rather than reading the judgements of the judge which speaks for itself that how much a judge can satisfy the parties when giving his reasonings to the hilt. God! really a kalyug!

    Reply
    1. Shamnad BasheerShamnad Basheer Post author

      Yes indeed I am a swain. And a vain one at that. But corn, I am not fond of. Scorn, I am.

      Reply
  5. AvatarM G Kodandaram

    It is true that nowadays judges are writing judgements which are too long to read, understand and analyse. They serve no other purpose except to confuse the litigants. There is no clarity either in the jurisprudence propogated or in the thinking process leading to the decision. It appears to be an output of ‘copy and paste’ technique, together with thesaurus replenishment. The reading of the decisions cited by you are a painful affair. By the time I read the first 10 pages, which takes a lot of time, as I have to read with a dictionary online, I feel totally tired. To aggravate my pathetic state, I found no connection to the subsequent pages. They appear to be totally different in language, approach and thought. There is undue delay in getting justice from the honourable courts. These lengthy judgements further fuel the delay in appealing processes, as they add to the misery of the entire legal fraternity.

    There is one more element of concern I want to share. The present day legislations are also no way different.
    Neither the citizen nor the executive can understand and implement the present day laws. The objective of the law are not properly reflected in the ensuing provisions, which leads to varied interpretations that are ending up in courts adding to the amplified litigations. Neither the citizen nor the administrators are at ease with these laws, but are forced to simply follow and implement such poor legislations. The drafting committees are full of persons, who lack forethought, vision and comprehensive knowledge of facts, law and procedures.

    One small incident lingers in my mind even today. The Government introduced the Negative List of taxation for services in 2012 as a measure of simplification of service tax legislations (amending Finance Act 1994), followed by various amendments and further Rules such as POT Rules, POP Rules etc. On an invite from my collegue, I visited Bijapur to address the Association of tax payers, who wanted certain clarifications on service tax. During the session, a Service Provider wondered as to how to understand such huge legislations pertaining to various taxes, including service tax. He stated that the laws are full of inbuilt ambiguities . As usual I proudly recommended him to refer to the ‘Service Tax Guide’ prepared for understanding the above legislation. To this he expressed as to whether he should do his business or study yet another encyclopedia of over 200 pages to understand and determine the tax liability.

    I am also equally surprised as to why we have failed to make laws that are simple to understand and administer, that enable voluntary and easy compliance by the citizen.

    There appears to be no way possible now to conquer this massive mound of cases in courts in short term. It may take one or two decades of unproductive work (though productive to my legal fraternity!) to clear this pendency, which has been created due to poor law making process also. We require legislations which are simple, clear and certain. It must enthuse and enable everyone to value, analyse and voluntarily comply. We should create clear and sensible legislations which could withstand the tests of time as well as Constitution. We should tackle the issues from the view point of a citizen, who is required to understand and volunteer to follow the law. In this regard, I requesr you to initiate your group’s thoughts, so that law making also gets benefitted.

    There is need of precise pattern of judgement writing. Every term used in legislation should have a purpose. Similarly the judgements should use only such terms essential for making a reasoned speaking order. The task of the judiciary is to clarify the legal position through judgements that are simple, clear and understandable to the litigants in particular and common man in general, and not beyond.
    M G Kodandaram

    Reply
    1. Shamnad BasheerShamnad Basheer Post author

      Thanks for your insightful and detailed comment Mr Kodandaram. You’re absolutely right–how can one expect the common man to know his legal liability (tax or otherwise) when finding the law (much less understanding its nuances) becomes a herculean task!

      Reply
  6. AvatarAnonymous

    And keep on answering like this by writing filthy with verbiosity that shows nothing than the shameless behaviour of so called lamentable professor lamenting and crying foul and creating facade out of nothing with only vested interest only for the reason that he has another point of view on things rather than any point to make and backing the lobby of the infringers behind.

    Reply
  7. AvatarAnonymous

    I am not lamenting your comments. I am lamenting about the maturity of the individual who claims himself as a professor. I think the way of expressing opinion shows the persons greatness. But you are worse than your colleague reddy and talking to you is talking to roadside person.

    Reply

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