CONSTITUTIONAL LAW

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Mr Jethmalani and "Judicial Gobbledygook"
by K.B. Nambyar

Cite as : (1974) 1 SCC (Jour) 68

It was said of one of Chief Justice Marshall's judgments : "All wrong, all wrong, but no man in the United States can tell why or wherein." Perhaps nothing could have better conveyed the power of effective writing than this. Judgments ought to criticised. Constructive criticism helps the development of law and language. Law Reviews contain devastating attacks on the judgments of famous Judges. Equally, Reviews occasionally condescend to approve major pronouncements of eminent Judges. When a law review note said of one of Justice Holme's judgments that it represented a correct statement of the law, the great Judge, it seems, remarked : "One lives and learns." This could very well be the reaction of Justice Krishna Iyer to Mr Jethmalani's stray thoughts under the caption "Judicial Gobbledygook" in the August 1973 number of the Journal of the Bar Council of India. Mr Jethmalani has accused the Judge, among other things, of smuggling into the law reports "a whole glossary of new terms and a novel style of expression".

Identifying the strengths and weaknesses of judicial writing is the task of the lawyer. In the performance of this task a lawyer can communicate the cultural range of the legal profession and of his own. Mr Jethmalani does not accomplish either. The legal profession will Judge for itself whether Mr Jethmalani has done justice to the Judge by what he has said about him as well as what he has omitted to say. He introduces Justice Michael A. Musamanno of the Pennsylvania Supreme Court as a "modern word artist" and goes at Justice Krishna Iyer to prove the point. Justice Musamanno's picture of an autotrailer "with protruding tongues licking up the highway behind automobiles to which they are babblingly attached for transportation of household goods, furniture and other rattling cargo" may leave on the reader the image of a pre-historic monster moving down the road. This is "rare literary vintage". But, not so is Justice Krishna Iyer's picture of the predicament of the unsuspecting professor : "While thus on the one side quiet flowed the stream of service as professor, on the other turpid eddies of threat to terminate surfaced up." About "glossary of new terms", a "vignette of facts" is as intelligible as a "summary of facts". "Concurrent conclusion from the two judicial tiers" is as clear as "findings of the two courts below". Taking a party by surprise is, of course, "hitting below the belt". We all indulge in this occasionally. "A damp squib and a futile venture in exculpation and extenuation" is not as dull as "failure of a plea of acquittal". "Domestic discovery" conveys in fewer words what is conveyed by "recovery of incriminating evidence from a man's residence". "A study of the anatomy and cardiology of the statute, not its formal structure, but its heartbeats" is an appropriate reminder in metaphorical language of the judicial activism called for "in the feudal context of the country and the founding faith in modernisation of agriculture informed by distributive justice". It has nothing to do with medicine as much as the observation of the Privy Council that Section 53-A of the Transfer of Property Act can be used only as a shield and not as a sword has nothing to do with war. "The statutory status of the employer substantially transforms the character of the master, the consequences of its ultra vires acts as well as amenability to types of relief like re-instatement and the applicability of writ remedies, alien to the legal chemistry of breaches of contract." This only means that the statutory status of the employer has the effect of transforming the character of the master as well as what follows in the next clause. There is no "breach of English grammar", traditional or modern, in the construction. And the next sentence which leaves open "these thorny jurisprudential issues of deeper import in the socio-economic and cultural context where the State undertakes dynamic activities affecting citizens' rights and operates through corporate and other effective instrumentalities" should leave no room for mystification to lawyers familiar with the Warehousing Corporation and Airlines cases which have relegated employees of statutory corporations to the position of domestic servants and their ilk.

A Judge will not shy away from using words for the reason that the average reader will not understand. The use of abstruse words is, for that matter, no yardstick for evaluating a Judge's style. Justice Frankfurter, one of the great Judges of our times, it appears, was fond of abstruse and ornate words. Here are a few samples :

"To assume that the Kansas courts construed the pleadings subsilentio as alleging monetary loss is to excogitate".1 "I cannot escape the conclusion, however, that in combination they bring the result below the Plimsoll line of due process."2 "The Murdock view is artifact . . . it is not a bit of quixotism to believe . . . ."3 And, "the problems that are the respective preoccupations of anthropology, economics, law, psychology, sociology and related areas of scholarship are merely departmentalized dealing, by way of manageable division of analysis, with interpenetrating aspects of holistic perplexities".4

Perhaps the last one prompted Professor Field of Harvard Law School to observe in a "good natured" poem entitled Frankfurter. J. Concurring :5

We don't decry the vivid phrase
The erudite bravura
That give judicial mayonnaise
A touch of Angostura.

It is not possible for a Judge to attain always an easy-to-understand style of writing. Frankfurter, to whom is usually attributed exceptional clarity of thought has this to say on the "governing Constitutional principle" concerning the meaning of the Contract Clause in the Federal Constitution :

"When a widely diffused public interest has become enmeshed in a net work of multitudinous private arrangements, the authority of the State to 'safeguard the vital interests of the people' is not to be gainsaid by abstracting one such arrangement from its public context and treating it as though it were an isolated private contract constitutionally immune from impairment."6

For a moment it leaves one baffled as to the State's power to impair the freedom of contract. Justice Holmes's famous dissent in the Abrams case is some times given as an example of "lucid style". Against the conviction of persons for distributing leaflets opposing American intervention in Soviet Russia after the first world war he said :

". . . . Even if I am technically wrong, and enough can be squeezed from these poor and puny anonymities to turn the colour of legal litmus paper ; I will add, even if what I think the necessary intent were shown ; the most nominal punishment seems to me all that could possibly be inflicted unless the defendants are to be made to suffer not for what the indictment alleges but for the creed that they avow—a creed that I believe to be the creed of ignorance and immaturity when honestly held, as I see no reason to doubt that it was held, but which, although made the subject of examination at the trial, no one has a right to even consider in dealing with the charges before the Court."7

Justice Shiras, whose literary style was supposed to be second to none who adorned the United States Supreme Court, it appears, wrote tedious opinions which, according to his biographer no lawyer would read for the fun of it. For example :

"The case is thus brought within the rule, which this court has so often had occasion to lay down, that the remedies in the courts of the United States are, at common law or in equity, not according to the practice of State courts, but according to the principles of common law and equity, as distinguished and defined in that country from which we derive our knowledge of these principles, and that, although the forms of proceedings and practices in the State courts shall have been adopted in the circuit courts of the United States, yet the adoption of the State practice must not be understood as confounding the principles of law and equity, nor as authorizing legal and equitable claims to be blended together in one suit."8

And, Cardozo's style, it is said, is a virtue excessive almost to a fault.

It is well to remember that a Judge is concerned with law not merely as a lawyer ; he has his identification with the democratic system ; and he is a participant in the democratic process. It is this identification and the sense of participation that impel him to come out in vivid, meaningful and metaphorical style. And, it is this awareness and articulation of the democratic role of the Judge that give strength and vitality to his judgments. Granting marginal linguistic flights, we find in most of Justice Krishna Iyer's judgments, whether he is dealing with Limitation, Agrarian Reform or Crime, the Judge as Reformer and Activist. A few illustrations may be taken from some of his recent judgments. The opening sentence of an Order excusing delay of two months by the State in instituting appeals in a land acquisition case reads :

"If an ordinary litigant is negligent the penalty of dismissal inflicts only individual harm ; but if the State is guilty of laches and consequently suffers dismissal of its petitions, the impact on public revenue is immense and the community suffers. In such a case the present series of petitions may seem to verge perilously on negligence on the part of the State Government—a critical legislature and a vigilant public opinion must censure the impersonal callousness of the Government".9

The implacable administrative sloth and slovenliness is described graphically thus :

"A private person can take instant decision while a bureaucratic or democratic organ hesitates and debates, consults and considers, speaks through paper, moves horizontally and vertically till at last it gravitates towards a conclusion,—unmindful of time and impersonally".10

Perhaps no words can better describe our administrative reality.

Agrarian reform is

"more humanist than land reform and scientifically viewed, covers not merely abolition of intermediary tenures, Zamindaris and the like but restructuring of village life itself taking in its broad embrace the socio- economic regeneration of the rural population."

"The technology of agrarian reform for a developing country which traditionally lives in its villages envisages the national programme of transmuting rural life from feudal medievalism into equal affluent modernism—a wide canvas overflowing mere improvement of agriculture and reform of the land system." Further, "the Indian Constitution is a social instrument with an economic mission and the sense and sweep of its provisions must be gathered by judicial statesmen on that seminal footing."11

This is a spirited appeal to judicial activism. In one of the recent judgments12 the Judge laments the absence of "penological guidelines in the statute for preferring the lesser sentence, it being left to ad hoc forensic impressionism to decide for life and death".

On the change effected by the new Criminal Procedure Code, 1973, the Judge observes :

"It is obvious that the disturbed conscience of the State and the vexed question of legal threat to life by way of death sentence has sought to express itself legislatively, the stream of tendency being towards cautious partial abolition and a retreat from total retention". Again, "the deterrence strategists argue that social defence is served only by its retention,—thanks to the strong association between murder and capital punishment in the public imagination—while the correctional therapists urge that reform of even murderers and not to extinguish them by execution . . . . The final position as we see it, is neither with the absolute abolitionist nor with the Mosaic retributionist. It is relativist, and humanist, conditioned by the issue of justice and the prevailing situation of the given society."

And, "in any scientific system which turns the focus, at the sentencing stage, not only on the crime but also the criminal, and seeks to personalise the punishment so that the reformatory component is as much operative as the deterrent element, it is essential that facts of a social and personal nature, sometimes altogether irrelevant if not injurious at the stage of fixing the guilt, may have to be brought to the notice of the court when the actual sentence is determined".13

It is not necessary to multiply instances of illuminating judicial prose. A Judge is an articulate man, like the writer. We should not be slow to realize that "the noblest of all uses of language is to capture and transmit those fundamental concepts by which a just and peaceful society lives and moves and has its being". And, it is the constant search for "ideas we should be lost without" that should be the paramount concern of lawyers everywhere.

Coming back to "Judicial Gobbledygook", the lesson, probably, is what the eminent English Judge John Stephens said :

"It is not enough to attain a degree of precision which a person reading in good faith can understand, but it is necessary to attain, if possible, to a degree of precision which a person reading in bad faith cannot misunderstand."

1. 352 U.S. 112, 120. Return to Text
2. 352 U.S. 191, 199. Return to Text
3. 352 U.S. 282, 300. Return to Text
4. 354 U.S. 234, 261. Return to Text
5. 71 Harv. L. Rev. 77. Return to Text
6. 326 U.S. 230, 232. Return to Text
7. 250 U.S. 616. Return to Text
8. 156 U.S. 485, 493. Return to Text
9. State of Kerala v. Periyar Ltd., order dated March 30, 1970 (High Court). Return to Text
10. Ibid. Return to Text
11. State of Kerala v. Gwalior Rayon Ltd., (1973) 2 SCC 713, 732, 733 (Paras 48 & 46). Return to Text
12. Ediga Annamma v. State, decided Feb. 11, 1974 (SC). Return to Text
13. Ibid. Return to Text