The Poetry of Justice

Trial by Error | The Aarushi Files

The Poetry of Justice

Illustration: Saachi Mehta/ Arré

“Aprior knowledge is getting corroboration by a posterior knowledge.”

Believe it or not, this mind-boggling sentence is a part of a judgment of the Madhya Pradesh High Court. But it’s hardly the most amazing part of the document. This particular judgment uses four languages – English, Latin, Sanskrit and Greek (all explained and translated) and is over 29,000 words long. It quotes freely from the Vedas, the Upanishads, the poet and mystic Kalidasa, Thoreau, T S Eliot, Gandhi, Rabindranath Tagore, Aristotle, Swami Vivekananda, The American Declaration of Independence, Aldous Huxley, John Locke, Dr Sarvapalli Radhakrishnan, Samuel Taylor Coleridge, Seneca, and Bertrand Russell among others. It’s almost as if the writers of the judgment were in a quandary over whether to prove their mastery of philosophy, poetry, mythology, or science and then decided to just go for them all.

The case in question, however, has nothing to do with philosophy, poetry, mythology, or science. It is concerned with plainer matters – amendments that curtailed power made in the law which created the Maharshi Mahesh Yogi Vishwavidyalaya. What I found interesting was, the judgment starts with a disclaimer to the effect that the judges are not experts in any of these subjects. I wonder if these non-expert judges were so worried that the university wouldn’t be able to continue teaching its courses that they decided to teach every subject in the judgment itself. (And in case you’re still wondering what the words “posterior knowledge” have to do with any of this, I cannot help you.)

I’m pretty sure you’re thinking that this is a one-off judgment that this writer has somehow got his hands on. This love of verbosity and literature (if you can call it that) is all too common in judgments of Indian courts.

Sample this from the Noida double murder case judgment:

The cynosure of judicial determination is the fluctuating fortunes of the dentist couple Dr Rajesh Talwar and Dr Nupur Talwar who have been arraigned for committing and secreting as also deracinating the evidence of commission of the murder of their own adolescent daughter, a beaut damsel and sole heiress Ms Aarushi, and hapless domestic aide Hemraj, who had migrated to India from neighbouring Nepal to eke out a living and attended routinely to the chores of domestic drudgery at the house of their masters.

There’s more: “They have extirpated their own daughter who had hardly seen 14 summers of her life and the servant without compunction from terrestrial terrain in breach of the Commandment ‘Thou shall not kill’ and injunction of Holy Quran – ‘Take not life, which God has made sacred.’”

A beaut damsel? Fourteen summers of her life? Did I just read a two-penny pulp novel?

To me, this is the grown-up version of a random essay written by a school-going kid, who, in a desperate attempt to fill pages, puts down one quote after another in a misguided attempt to pass off as brilliant.

The late Justice Krishna Iyer is considered the pioneer of this particular template of writing. And he has many fans. I know too many judges and lawyers who are in awe of Justice Iyer and try very hard to emulate his style of writing, often with terrible results.

In her book Justice V.R. Krishna Iyer on Fundamental Rights and Directive Principles, Shailja Chander cites scholar and lawyer H M Seervai’s criticism of Justice Iyer’s style. Seervai notes something could easily have been expressed as: “In order to decide whether to sentence an accused to death or imprisonment for life for the offence of murder, the judge must be guided by the provisions of the Criminal Procedure Code, bearing in mind that from the sentence of death being the rule between 1898 to 1955, it has become the exception from 1973.”

Justice Iyer chose to say the same thing in an excerpt from a judgment, thus: “The sister codes – The Indian Penal Code and the Criminal Procedure Code – are interwoven into the texture of sentencing. So much so, the various changes in S. 367 of the Procedure Code, 1898 and its reincarnation in Sec. 354 of the code of 1973 impact on the interpretation of S. 302 of the Penal Code. The art of statutory construction seeks aid from connective tissues as it were of complementary enactments. This mode offers a penological synthesis Parliament legislatively intended.

We know.

In the same book, Justice Iyer defended his love for a turn of phrase. “A judgment is a literary piece. If a thing becomes beautiful, why not quote poetry?” he asked. “It helps to drive home a point effectively and lends it literary grace.” He drew inspiration from his scholarly peers, British judges. Apparently, in the Privy Council judgment in the Barendra Kumar Ghose case, the concluding lines of John Milton’s sonnet, “When I Consider How My Light is Spent”, were quoted, “They also serve who only stand and wait”. Justice Iyer also emphatically added that, “New words have to be used to introduce ideas,” as if old words, all 1025109.8 of them, were inadequate to communicate new ideas.

Before you go around accusing me of having no soul, I must say that I’m not averse to the occasional use of poetry to keep the judgments from being utterly dreary. The lines “Pinha tha daam-e-sakht qareeb aashiyaan ke/ Udhne hi na paaye the ki giraftaar hum” and “Hai maujazan ik qulzum-e-khoon kaash yahi ho/ Aata hai abhi dekhiye kya kya mere aage” were penned by arguably the greatest Indian poet of all time, Mirza Ghalib. They are also the first sentences in two judgments authored by Retd. Justice Markandey Katju, whose fondness for Urdu poetry is well known.

But I do feel that someone needs to advise our eminent jurists that they ought to indulge in their love of poetry and literature on their own time and not at the expense of a litigant, who is possibly howling in agony trying to decipher these reams of beauty. To my mind, a judgment settles a dispute and lays down the law. It is not being written for a connoisseur of Milton or an expert on Ghalib. A judgment should be accessible to as many people as possible, but unnecessary citations and archaic words defeat that purpose.

I wouldn’t be off the mark if I attributed this literary fixation to the unshakeable Indian conviction that the quality of a document is inversely proportional to its coherence. One often hears people saying, “Ye kisi hi-fi insaan ne likha hoga, I couldn’t understand a word of it,” with a kind of a hushed admiration and quiet conviction that he who writes so intelligently must surely be right.

To me, this is the grown-up version of a random essay written by a school-going kid, who, in a desperate attempt to fill pages, puts down one quote after another in a misguided attempt to pass off as brilliant. This stems from the deep conviction that the marks awarded will be directly proportional to the number of pages that an answer occupies.

Alas. I have no alternative but to turn to another Supreme Court judgment when discussing this with the “disposition of a disregardant”. But please don’t punish me for contempt, dear judges, because, “No doubt, it is true that brevity is an art but brevity without clarity is likely to enter into the realm of absurdity, which is impermissible.”