IN SEPTEMBER LAST YEAR, a five-judge constitutional bench of the Supreme Court of India rendered a momentous verdict in a case that dealt with important aspects of the judiciary’s independence. The petitioner, the Madras Bar Association, challenged the central government over the National Tax Tribunal Act, 2005, under which a purportedly independent body had been established to rule on substantial questions of tax law. The petitioner argued that such tribunals, a relatively modern phenomenon, impinged on the constitutionally sanctioned authority of the country’s high courts, and they were not competent to decide on matters of law. More damagingly, the petitioner asserted that such tribunals would be under the control of the executive branch of the government.
Given the weighty legal issues at stake, the ruling would have proved noteworthy whichever side it came down on. As it happened, the judgment declared the statute—and, as a consequence, the tribunal it established—unconstitutional. But while this much is evident from reading the conclusion to the majority opinion, written by Justice JS Khehar on behalf of four of the five judges, the details of how the court arrived at its decision are less clear.
Block quotations from past decisions and statutes clutter the 227-page document. These include, to point out only one of many examples, an excerpt from a decision rendered by an English judge, Lord Diplock, in a 1975 appeals case in the United Kingdom, which alone runs for nine pages. As a result of these extensive citations, the court’s own explication of the law is difficult to locate.
Where this reasoning can be found, it is not always convincing. In one place, the majority opinion holds that the National Tax Tribunal “has been created to handle matters which were earlier within the appellate purview of the jurisdictional High Courts.” On the appointment of certain members of the tribunal, it continues, “we are accordingly satisfied that the appointment … would be in clear violation of the constitutional conventions recognized by courts, the world over.” It would be interesting—and important—to understand how the violation of a supposed constitutional convention, as opposed to that of a specific provision of the constitution, can render legislation invalid. If the answer to this question is present in this text, it certainly isn’t easily discernible.
In traversing between numerous quotations and its own incomplete reasoning, the majority opinion fails to establish the serious constitutional tension at hand: between the independence of the judiciary in adjudicating questions of law without executive interference, and the sovereign power of parliament to make legislation.
The majority’s judgment wasn’t the only one rendered in this case. In a separate but concurring opinion, Justice RF Nariman offered his own reasoning for how, and why, within our constitutional scheme, ruling on matters of law is a core and exclusive function of India’s superior courts. Nariman’s opinion also has its share of block quotations, but it follows a logical pattern, and cites carefully selected constitutional provisions and legal precedents. For example, Nariman writes that the National Tax Tribunal was granted power to “lay down the law for the whole of India which then would bind all other authorities and tribunals. This is a direct encroachment on the High Courts’ power under Art. 227 to decide substantial questions of law which would bind all tribunals.” The majority opinion may well have been based on larger, more fundamental principles, but, unlike the concurring judgment, it fails to show us how its reasoning is derived from specific provisions of the constitution
These contrasting judgments serve as stark reminders that the opinions written by our highest appellate courts are often insufficiently lucid. Producing original thinking and reasoning in a judgment is not easy, especially given the sheer volume of cases that judges have to hear today. But the lack of clarity is cause for serious concern, since these rulings play a vital part in establishing the law of the land. India is a common-law jurisdiction, in which legal principles are established not just through statutes, but also through judicial opinions. Thus, judgments must be reasoned as they both extrapolate from existing laws and, crucially, also often make statements of law.
Ultimately, a judgment, as the former New York State appeals judge James D Hopkins once said, is an exercise in persuasion. Especially when dealing with constitutional issues, the opinions of the Supreme Court, whether in the United States or in India, speak not merely to judges, lawyers and law students, but also to the public at large. George Rose Smith, who was a justice of the Arkansas Supreme Court between 1949 and 1987, said that judgments were meant “Above all else to expose the court’s decision to public scrutiny, to nail it up on the wall for all to see. In no other way can it be known whether the law needs revision, whether the court is doing its job, whether a particular judge is competent.”
In a much celebrated and salutary decision rendered in January last year, the Supreme Court of India commuted to life imprisonment the sentences of a number of death-row convicts. These individuals had spent years—in some cases more than a decade—contemplating their possible hangings, while their mercy petitions were allowed to rot in the president’s office. When President Pranab Mukherjee moved suddenly to reject these petitions, the prospect of their deaths once again became real and imminent. A number of petitions were filed in the Supreme Court seeking to reverse the president’s decisions, chiefly on the grounds that such inordinate procedural delays on the matter of executions was unconscionable. The court agreed with the petitioners, and commuted their sentences to life imprisonment.
In its ruling, the court also elaborates on its powers to review such decisions of the executive; but in doing so, it provides rather ambiguous reasoning. “This Court has been of the consistent view that the executive orders under Article 72/161 should be subject to limited judicial review based on the rationale that the power under Article 72/161 is per se above judicial review,” writes Chief Justice P Sathasivam, “but the manner of exercise of power is certainly subject to judicial review.” The court never clarifies how or why an executive power can be beyond judicial review, while the “manner of exercise” of such a power can simultaneously be open to scrutiny by the courts. These kind of gaps in the court’s reasoning tends to muddle the law, and provides an avenue for more dispute and litigation, thus further burdening our judiciary.
At its best, judicial writing can even be read for pleasure. A judgment penned by Alan Ward, formerly a judge of the Court of Appeal of England and Wales, served as inspiration for Ian McEwan’s most recent novel, The Children Act. Ward’s nearly 80-page opinion, in what is now known as the Attard twins case, concerned whether a hospital could separate a pair of conjoined twins when conscious of the fact that the required surgical procedure would kill the weaker baby. (The court ultimately ruled that the surgery could proceed.) In introducing the case, Ward made an elegant plea: “This court is a court of law, not of morals, and our task has been to find, and our duty is then to apply, the relevant principles of law to the situation before us—a situation which is unique.” Writing in The Guardian, McEwan described Ward’s judgment as “beautifully written, delicate and humane, philosophically astute,” and said that all the best judgments were “similarly endowed.”
In India, too, the finest judgments of the Supreme Court have also often had literary merit. Consider Justice Vivian Bose’s opinion in the 1952 case The State of West Bengal vs Anwar Ali Sarkar, which challenged the validity of the West Bengal Special Courts Act, 1950. The statute provided for expedited trials for those accused of certain kinds of offences. The court was tasked with determining whether creating a separate category of courts, following different, and sometimes less stringent, procedural norms from existing ones, violated the fundamental right to equality.
Bose’s opinion is a classic example of a judge extrapolating from the complexities of abstract law to formulate a concrete legal finding. It works intricately through the difficulties of defining what “the law” is when examining the idea of “equality before the law.” It then arrives at its conclusion, which is not only legally acute, but also has the power and sonority of a dramatic monologue:
When the froth and the foam of discussion is cleared away and learned dialectics placed on one side, we reach at last the human element which to my mind is the most important of all. We find men accused of heinous crimes called upon to answer for their lives and liberties. We find them picked out from their fellows, and however much the new procedure may give them a few crumbs of advantage, in the bulk they are deprived of substantial and valuable privileges of defence which others, similarly charged, are able to claim. It matters not to me, nor indeed to them and their families and their friends, whether this be done in good faith, whether it be done for the convenience of government, whether the process can be scientifically classified and labelled, or whether it is an experiment in speedier trials made for the good of society at large. It matters not how lofty and laudable the motives are. The question with which I charge myself is, can fair-minded, reasonable unbiassed and resolute men, who are not swayed by emotion or prejudice, regard this with equanimity and call it reasonable, just and fair, regard it as that equal treatment and protection in the defence of liberties which is expected of a sovereign democratic republic in the conditions which obtain in India today? I have but one answer to that. On that short and simple ground I would decide this case and hold the Act bad.”
The law, in many ways, is both a technical pursuit and an artistic craft. At its core, it calls for precise logic and reasoning, as well as expansive empathy. The words of judges have the power to affect human lives decades after they have been written. Appellate judgments must, therefore, be measured not merely on their outcomes, but on the clarity with which they are reasoned and composed, and on whether they provide a stable, coherent foundation for future decisions.