In the sexual abuse case against the former Union minister Chinmayanand initiated by a law student, while granting bail to the accused, Justice Rahul Chaturvedi of the Allahabad High Court opined that “both of them used each other”. In the order, the relation between the woman complainant and the accused was termed as “quid pro quo” (one of mutual benefit) by the judge. It is significant to note that these findings occur in a bail order in which the trial and adjudication are yet to happen. Findings on merit need to be avoided in an order granting or rejecting bail. In the instant case, Chinmayanand was in custody since 20 September 2019 and the chargesheet also was filed. The accused is an octogenarian. As such, quite justifiably, bail could have been granted. But in doing so, the judge, with his unwarranted remarks, crossed the limits of judicial discipline and propriety.
The bail order reinstates the popular misunderstanding about the nature of the offence of rape by men in “a position of authority” or having a fiduciary relationship with the victim, as stated in Section 376C of the Indian Penal Code. The order reinstates the patriarchal mindset. It also perpetuates sexual stereotypes that objectify women even by blaming her for her silence. One is reminded of a rape case, Tuka Ram v. State of Maharashtra (1978) in which the Supreme Court was widely criticised for finding fault with the silence of a young girl, rather than the heinous offence committed by men on her. Lack of constitutional wisdom and legal maturity is a sad commentary on our institutions, rather than on individuals.
The vocabulary of justice has, over the course of time, changed for worse. Even in the recent verdict in the Ayodhya case, when the top court talked about the “Hindu side” and the “Muslim side”, many of us got disillusioned, qui-te justifiably. Legal scholar Andrew Goodman has illustrated the change in law’s language. He indicated that the expression “living in sin” was commonly used even in the 1980s, and later on, “as a consequence of drastic social change”, the judges had to evolve appropriate judicial terminology to deal with the property rights of unmarried cohabitees. In India, the Chairman of the Rajasthan Human Rights Commission described live-in relationships as a form of “social terrorism” in 2017, despite the apex court’s liberal view on the issue in Khushboo v. Kanniammal (2010). Brevity is no longer an accepted virtue in the Indian courts, especially when dealing with issues of great significance.
The verdict in Kesavananda Bharati (1973) that evolved the doctrine of the basic structure of the Constitution ran into more than 700 pages. The verdict on the National Judicial Appointments Commission (2015) that spread over more than 1,000 pages, exceeded the size of the judgment in the S P Gupta case on judicial appointment (1981) that had roughly 830 pages. The Aadhaar judgment (2018) had over 1,448 pages. Only very few even among the lawyers would have read such verdicts in their entirety. On this, we have better lessons from other jurisdictions. The US Supreme Court’s judgment in Texas v. Johnson (1989) on free speech rights in the context of the right to burn the American flag had just 43 pages. The verdict in Lawrence v. Texas (2003) that decriminalised sodomy in the State of Texas had only 49 pages. Roe v. Wade (1973), dealing with abortion rights, had just 66 pages. The recent Brexit judgment from the UK Supreme Court had just 24 pages. The Constitution Benches in the Indian Supreme Court can also adopt co-authorship in judgments so that repeated elaborations by each and every judge on the Bench could be avoided.
The language of the judgment also could sometimes lead to breach of peace. Shocked by the obscure verbosity in a Himachal Pradesh High Court judgment, a Supreme Court Bench consisting of Justices Madan B Lokur and Deepak Gupta set it aside and remanded the matter back to the High Court in 2017. The top court said that it was impossible to understand the judgment. A judgment written by the former Chief Justice of India Dipak Misra in Subramanian Swamy’s case that challenged the criminal defamation law was also widely criticised for being incomprehensible.
Michele M Asprey, a former solicitor of the Supreme Court of New South Wales, was a known “Plain Language Writing Consultant”. She authored a work titled “Plain Language for Lawyers” (1991). She advocated for radical changes in the lawyers’ method of communication with the public, for according to her, lawyers are “no longer seen as the learned custodians of unknowable secrets”. The principle should all the more apply to the literature from the Bench.
Some, however, innocently think that the issue of bad judgments is only a matter of legal acumen and it could be resolved by judicial education and refresher courses. The merit of the judgments has a direct correlation with the merit of the judges. In the words of scholar Robert A Leflar, “The quality of our judges, and of their performance in the judicial process, is probably the surest guide to the quality of our civilisation.” A good judgment needs to satisfy ethical, intellectual and aesthetic yardsticks. Dialogue with an informed Bar is a processual imperative. Goodness of the judgment is to be taken as an extended goodness of the judge herself. Socrates warned that misuse of language induces evil in the soul. Therefore, our judges should definitely mind their language!
Brevity is no longer an accepted virtue in the Indian courts, especially when dealing with issues of great significance. On this, we have better lessons from other jurisdictions ... For instance, the famous Roe v. Wade (1973) case in the US that dealt with abortion rights ran to just 66 pages. The recent Brexit judgment from the UK Supreme Court had 24 pages
KALEESWARAM RAJ Lawyer, Supreme Court of India Email: kaleeswaramraj@gmail.com