On confusing litigation, Bibek Debroy says ‘you be the judge’

By: | Published: December 14, 2017 4:44 AM

“Even if assumingly no efficacious evidence nor any evidence of cogent worth may stand adduced qua the defendants raising any obstruction upon the suit land yet ...

bibek debroy, rationale for the decision, facts and law, obiter dictaIf you didn’t understand a word of this, you are in good company. Neither did the Supreme Court.

“Even if assumingly no efficacious evidence nor any evidence of cogent worth may stand adduced qua the defendants raising any obstruction upon the suit land yet the decree of permanent prohibitory injunction dehors any obstructive act done by the defendants during the pendency of the suit before the learned trial Court or during the pendency of the appeal before the first appellate Court also dehors no scribed relief in consonance therewith standings prayed for by the plaintiffs would not estop this court to permit the executing court to carry the mandate of the conclusively recorded decree of permanent prohibitory injunction pronounced qua the plaintiffs, conspicuously when thereupon the mandate of the conclusively recorded decree pronounced qua the suit land would beget consummation besides would obviate its frustration.”

If you didn’t understand a word of this, you are in good company. Neither did the Supreme Court. This quote is from an order (delivered in December 2016) by Justice Sureshwar Thakur of the Himachal Pradesh High Court.

This is a case concerning a landlord and a tenant, with the landlord attempting (since 1999) to evict the tenant on grounds of non-payment of rent. I have given you one sentence with 127 words. There were many more similar sentences. Consequently, one needed to appeal to the Supreme Court, if nothing else, to ascertain what the High Court intended.

Not that the Supreme Court could help. In April 2017, two judges of the Supreme Court (Justice Madan Lokur and Justice Deepak Gupta) decided, “It is not possible to comprehend the contents of the impugned order passed by the High Court.”

Unable to understand what the High Court had said, they set aside the order and referred the matter back to the High Court for a fresh look.

Unless you are a lawyer or a judge, you will not recognise the following and its importance. “Old Peter Beswick was a coal merchant in Eccles, Lancashire. He had no business premises. All he had was a lorry, scales, and weights. He used to take the lorry to the yard of the National Coal Board, where he bagged coal and took it round to his customers in the neighbourhood. His nephew, John Joseph Beswick, helped him in his business. In March 1962, old Peter Beswick and his wife were both over 70. He had had his leg amputated and was not in good health. The nephew was anxious to get hold of the business before the old man died. So they went to a solicitor, Mr Ashcroft, who drew up an agreement for them.”

This is the 1968 Beswick versus Beswick case, important for evolution of contract law (in England). I cited this judgment by Lord Denning to illustrate contrast in writing styles. In one case, the intention is to explain to parties what the judge has decided. In the other, the intention is to establish the judge’s command over law, language, and even literature.

Perhaps it helped that Lord Denning initially studied mathematics, before turning to law. The 1954 guide by Ernest Gowers on plain English, titled “The Complete Plain Words”, had an entire section on legal English. “Legal drafting is a science, not an art; it lies in the province of mathematics rather than of literature, and its practice needs long apprenticeship.” Latin isn’t necessarily required for precision, though its plentiful use characterises both law and judgments. A typical judgment has “ratio decidendi” (rationale for the decision, facts and law) and “obiter dicta” (remarks in passing). A litigant, or anyone for that matter, should be interested in “ratio decidendi”. “Obiter dicta” aren’t binding, or at least, the Supreme Court doesn’t think so. That’s also in conformity with “stare decisis” (precedence). But since High Courts seem to think the Supreme Court’s “obiter dicta” are binding, perhaps all judges should resist the impulse to write “obiter dicta” and focus on “ratio decidendi”, avoiding unnecessary confusion.

While on judgments, what happens to those pronounced by P Natarajan, a former magistrate in Tamil Nadu? He became a magistrate in 1982 and retired in 2003. As far as I can make out, he had something akin to BGL/BAL/BBL; Bachelors in General Law, Academic Law, Business Law, respectively. These aren’t equivalent to LLB and with these, under the Advocates Act (and UGC and Bar Council), you can’t practice law or become a magistrate. No one noticed Mr Natarajan’s qualifications, or lack, until he retired and chose to practice law again.

We might find an answer in the US system, where following an old tradition, some states allow judges without law degrees to try some kinds of cases. Specifically, 28 states insist on law degrees, 22 don’t. In 14 of those 22, if you are tried by a judge without a law degree, you have the right to a fresh trial before a judge with a law degree. In the remaining eight, you have no such right.

Read Alexis de Tocqueville on “Democracy in America”. “A justice of the peace is a well-informed citizen, though he is not necessarily versed in the knowledge of the laws. His office simply obliges him to execute the police regulations of society; a task in which good sense and integrity are of more avail than legal science.” I did intend to remind you of gram nyayalayas and the 2008 Act. In the US, the system was originally encouraged because of shortage of lawyers/judges. The recent debate in Montana has been a cost-saving argument.

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