Law

Judgment by Thesaurus

Or, a ‘Proponement in Oppugnation’ to the Supreme Court’s use of language

The trees may not be blooming but the language in the Supreme Court is flowery. Credit: Shome Basu

An arboretum of adjectives, a valley of verbosity, the Supreme Court’s language is easily the most flowery in the world. Credit: Shome Basu

The Supreme Court of India ruled last week in the case of Subramanian Swamy v Union of India, on the law of criminal defamation. The aim of this short exercise is not to delve into the merits of the court’s decision. Instead, it is a simple attempt – by a flabbergasted reader – to parse the language of the court, which, in keeping with an alarming trend in Indian jurisprudence, is a hodge-podge of catastrophic syntax and overblown (sometimes laughable) vocabulary.

The judgment is 268 pages long, running to 198 imposing paragraphs. I am a former university lecturer in law who has worked in journalism for nearly 25 years as an editor and writer. In the spirit of my vocation, I decided to go through the first paragraph of Justice Dipak Misra’s judgment, taking my “red pen” to it as I would to any submission sent to me as an editor. Here are my observations.

This batch of writ petitions preferred under Article 32 of the Constitution of India exposits cavil in its quintessential conceptuality and percipient discord between [the] venerated and exalted right of freedom of speech and [the] expression of an individual, exploring manifold and multilayered, limitless, unbounded and unfettered spectrums, and the controls, restrictions and constrictions, under the assumed power of “reasonableness” ingrained in the statutory provisions relating to criminal law to reviver and uphold one’s reputation. [words in parentheses added]

This sentence is so convoluted – and so riddled with adjectives – as to be impenetrable to lawyer and lay reader alike. It is among the worst sentences I’ve encountered in all my years of reading legal materials. As an exercise in clarity, try rewriting this long, single sentence as two or three shorter ones, using fewer adjectives and synonyms.

Here are some particular observations:

“exposits cavil”: are you sure you mean ‘cavil’? The word refers to a petty or inconsequential complaint. It is not a synonym for all forms of complaint. In any case, a person would, correctly, ‘cavil at’ something, not ‘exposit cavil.’

“its quintessential conceptuality”: I assume the possessive ‘its’ refers to the ‘batch of writ petitions’. If so, ‘at its core’ would have been a much clearer phrase. So you’d be saying ‘this batch of petitions has, at its core, the complaint that…’

‘percipient discord’: How can ‘discord’ possibly be ‘percipient’? Unless ‘discord’ is being used here, incorrectly, as a synonym for ‘disagreement.’ Even then, ‘percipient’ strikes the wrong note.

‘venerated and exalted right’: Why the florid repetition?

‘exploring manifold and multilayered, limitless, unbounded and unfettered spectrums’: Again, this is verbose, repetitive and highly florid. By now, the reader is stuck in a quicksand of adjectives.

‘the controls, restrictions and constrictions’: more verbosity

‘reviver’: Unpardonable typo in the first sentence of a major judgment

The assertion by the Union of India and the complainants is that the reasonable restrictions are based on the paradigms and parameters of the Constitution that are structured and pedestaled on the doctrine of non-absoluteness of any fundamental right, cultural and social ethos, need and feel of the time, for every right engulfs and incorporates [the] duty to respect [an]other’s right and ensure mutual compatibility and conviviality of the individuals based on [the] collective harmony and conceptual grace of eventual social order; and the asseveration on the part of the petitioners is that freedom of thought and expression cannot be scuttled or abridged on the threat of criminal prosecution and made paraplegic on the mercurial stance of individual reputation and of societal harmony, for the said aspects are to be treated as things of the past, a symbol of [the] colonial era where the ruler ruled over the [his] subjects and vanquished concepts of resistance; and, in any case, the individual grievances pertaining to reputation can be agitated in civil courts and thus, there is a remedy, and viewed from a prismatic perspective, there is no justification to keep the provision of defamation in criminal law alive as it creates a concavity and unreasonable restriction in individual freedom and further progressively mars [the] voice[s] of criticism and dissent which are necessitous for the growth of genuine advancement and a matured democracy[words in parentheses added]

I was too hasty in concluding that the first sentence of this judgment was notably awful. The very next sentence is even worse, surpassing the first in verbosity, obfuscation, flabbiness, meandering length, and analytical ineptitude. As an exercise in linguistic clarity, try writing this one giant sentence as five or six – or even seven –shorter ones instead. If a sentence contains two semi-colons, you can be sure that it is longer than it needs to be.

Here are some particular observations:

‘paradigms and parameters’: Was this double-whammy really necessary?

‘that are structured and pedestaled’: And this second double-whammy? And was it really necessary to turn ‘pedestal’ into a hideous verb?

‘need and feel of the time’: A surprisingly laid-back phrase in the context. But do you really want to say that the ‘paradigms and parameters of the constitution [are] structured and pedestaled on the…need and feel of the time…’? Because that’s what you’re saying…

‘conceptual grace of eventual social order’: How is ‘social order’ both ‘conceptual’ and ‘eventual’? What do you mean by ‘conceptual grace’? Do you mean the ‘desirability’ of social order? Your meaning is entirely unclear.

‘asseveration’: Was this polysyllabic tub-thumper really necessary? What’s wrong with ‘claim’, or ‘assertion’?

‘and made paraplegic on the mercurial stance of individual reputation and of societal harmony’: This is bad writing masquerading as fancy prose. How can something be ‘made paraplegic’ on a ‘mercurial stance’? This is a massacre of metaphors. And what exactly do you mean by ‘the mercurial stance of individual reputation and societal harmony’? Do you mean that they are ever-changing? But ‘mercurial’ applies to sudden and temperamental change that results from within a person, not to changes (in, say, a reputation) that happen as a result of external circumstances and forces beyond the individual’s control.

‘for the said aspects are to be treated as things of the past’: What aspects, exactly, are the ‘said aspects’ here? And what do you mean by ‘things’?

‘viewed from a prismatic perspective’: this phrase is meaningless.

‘as it creates a concavity’: this phrase is a meaningless analogy from geometry.

‘which are necessitous for the growth of genuine advancement and a matured democracy.’: ‘Necessitous’ is an unnecessarily pompous way of saying ‘necessary.’ What do you mean by ‘genuine advancement’…advancement of what? And how can you have growth of advancement? Finally, I presume you mean ‘mature’ when you say ‘matured’…when something has ‘matured,’ it is often the case that it has come to an end.

There are 197 paragraphs after this one. It would be unfair to say that all of them hit the linguistic depths to which Justice Misra plummets in the text above (though I can’t resist noting that the section where the views of those opposed to the petitioners are laid out is bombastically titled ‘Proponements in Oppugnation’). What is remarkable is that the apex court of India should be unembarrassed about putting into the public domain the sort of prose found here in the first paragraph. After all, it is the one part of the judgment that everyone is sure to read.

Tunku Varadarajan, a former lecturer in law at Oxford University, is the Virginia Hobbs Carpenter Fellow in Journalism at Stanford University’s Hoover Institution.

  • Asish Daniel

    You do realize that people will stop reading this after the second paragraph!

  • Matty

    Flabbergasted indeed is the right word to describe my state.

  • Anjan Basu

    Nice article! At least in this case, the Court’s verbal diarrhoea seems to have been caused by a combination of utter obtuseness and ‘ingrained'( to borrow from the ponderously worded judgement) prejudice. But even otherwise, Indian courts produce linguistic monstrosities quite routinely. One is reminded of Orwell’s memorable diatribe in ‘ Politics and the English Language’ where he famously quotes from the work of well- known prose writers to show that cerebral mediocrity and linguistic slovenliness do not only go hand-in-hand but actually feed on each other. ” A man may take to drink because he feels himself to be a failure, and then fail all the more completely because he drinks’. Thus, an effect becomes a cause, reinforcing the original cause and producing the same effect in an intensified form — to paraphrase George Orwell.

  • K SHESHU BABU

    Wouldn’t it be appropriate to title this verdict as ‘ an appeal rejecting the petitioners since the petition is ‘Floccinaucinihilipilification’ — ( other longer words might cause lung disorders) — and send to guineas books of records ( or limca) as one of the most empty ‘ ad noseum ad vertim ‘ of many judgements??!

  • wagatail

    One of the best things you’ve written. Congrats.

  • Bhushan Wagle

    It’s ironic that the average length of adjectives used by Justice Mishra is more than the length of both parts in his name. The language in this judgment has been noticed because it comes from a Supreme Court justice. But I am concerned there are many other senior professionals who are guilty of similar abuse. Journalism in India is riddled with such people. I gave up reading India Today partly because of similar verbal diarrhea by one of their senior editors in his columns.

  • M Patel

    In my humble opinion, such verbosity often reflects a deep inferiority complex that so much of Indian elite feels which they invariable try to compensate by displaying their “command” of the English language and/or aping an English “manner” or “lifestyle” (which of course has faded or disappeared “back home”).

    And of course nor should we forget that their lordships fully appreciate the power of bordline non-sensical verbage to confuse the hoi polloi in buying into their self-important (exalted/undeserved?) status – the bramins have been at it for eons 🙂

  • Saumya

    This is so funnyyy! *crying*

  • Dec Watch

    A column for dissecting the SC verdicts would do some good, not only for the readers in learning how to write clearly but also for judges to know that writing well with divine clarity is an essential part of justice dispensation.

    • Tunku Varadarajan

      What a terrific idea. The Wire might even call it “Judging Judges.”

  • Sunil Sivaramakrishnan

    Legal conventions die hard. More so, when the language used in a judgement needs to reflect that it comes from a Justice of the Supreme Court.

  • Laughterhouse

    You presume too much, @DariyaSophia. Varadarajan isn’t part of “a larger movement” for the dumbing down of English. But he has been plugging for clarity and concision in text for years.

    It is imprudent to criticise a critic one doesn’t know.

    That being said, ‘venerated’ and ‘exalted’ are, for all practical purposes, synonymous. Parameters exist within paradigms. Justice Misra might have used “paradigms” alone, and nobody would have thought any the less of him for it. This is a court judgement, not a thesis on the LinGO English Resource Grammar. It is expected to be an exemplar of lucidity instead of opacity, and certainly not so bombastic that it ends up saying more about the judge than the judged.

    In current linguistics, multiword expressions (MWEs) are seen as a serious problem in institutional communication. The courts, controlled by formidably-educated judges with literary pretensions, are considered breeding grounds for MWEs.

    If in this sense alone, Varadarajan deserves a clap on the back for taking this issue head-on.

  • Tunku Varadarajan

    Yes, the first commentor on this particular thread invoked Joyce…

  • Anil Madan

    Mr. Varadarajan

    Your article was forwarded by a friend. I posted a link to it on The Lawrence School, Lovedale, forum (I am an alumnus of that school). One of my fellow alumni asked me to explain what Justice Misra was getting at. My response to him was as follows:

    Taking your request somewhat seriously, I decided to take a stab at explaining what this is all about. I was, as you might expect, deeply concerned about the potential damage to my reputation that could occur from a claim to “understand” what the venerated and exalted Justice Dipak Misra actually meant. But with “Never Give In” coursing through my veins, I remain unembarrassed. However, I must caution you that if you reveal that I wrote this, I will have to kill your venerated and exalted self.

    So, I confess that I actually went and read more of the “learned” Justice’s opinion—as Tunku Varadarajan’s post states it is 268 pages and 198 paragraphs long—but only until I got a slight headache. Say, about 5 pages. I may be one of a very venerated and exalted minority having waded through at least five pages of Misra which I assume is the Sanskrit root of Miserable.

    Okay, now to get to the controversy addressed by Justice Misra.

    The Indian Penal Code makes it a criminal offense to defame another person. The statute provides a penalty of imprisonment up to two years.

    The petitioners in this case raised a constitutional challenge to the Penal Code provision.

    If I render (I think that is an appropriate word) Justice Misra’s writing to English as spoken by KITtens (descendants of KIT), here is what he was trying to say:

    The writs before this Court raise the question whether the statute making defamation a crime is antithetical to a person’s constitutional right to freedom of speech and expression.

    The Government of India and the plaintiffs seeking criminal penalties, argue that the criminal penalties are based on reasonable restrictions, that no right is absolute and the limits on the exercise of any right presuppose that such exercise will not infringe on the rights of others.

    The petitioners (challenging the criminal statute) argue that freedom of speech and expression cannot be curtailed by the threat of criminal prosecution, and in any event, a person claiming to be defamed has an adequate remedy at law by an action for libel or slander. Moreover, the concept of criminal libel or defamation is grounded in a colonial past.* The petitioners also argue that there is no reason to let criminal defamation stand as an offense because unreasonable restrictions on speech and expression threaten the fundamentals of a democratic society.

    * The reference to colonial history is based on the fact that criminal defamation statutes were originally intended to protect the aristocracy. See the discussion here in an article linked by Tunku:

    http://thewire.in/2016/05/14/criminal-defamation-and-the-supreme-courts-loss-of-reputation-36169/

    Well, I hope this helps.

    Cheerz…Bwana

    (Anil Madan, Vindhya 1963)

  • Anil Madan

    Another Perspective on Justice Misra’s Opinion:

    Hi all

    After my initial post, and having withstood five more pages of Justice Misra’s prose, I wondered what led him to uphold the constitutionality (under the Indian Constitution, of course) of the criminal defamation statute. As explained below, I read the decision—at least 80% of it as I did skim some passages.

    I’ve come away with respect for Justice Misra’s scholarly and thorough research and careful explanation of the competing considerations involved in resolving the case. I am guilty, as many others are, of thinking that any person who writes as Justice Misra wrote in the opening paragraphs of his Opinion, cannot be too bright. I suppose it should be obvious that intelligence does not automatically produce concise writing.

    My bias is, as you can imagine, is to view freedom of speech as near absolute, a reflection of American case law interpreting the First Amendment to the US Constitution.

    Yet, I was struck by the fact that the language of the Indian Constitution expressly disavows any intention to repeal a wide range of existing laws that might, without such qualification, be declared unconstitutional restraints on free speech. Here are the pertinent provisions:

    19. Protection of certain rights regarding freedom of speech etc

    (1) All citizens shall have the right

    (a) to freedom of speech and expression;

    (b) to assemble peaceably and without arms;

    (c) to form associations or unions;

    (d) to move freely throughout the territory of India;

    (e) to reside and settle in any part of the territory of India; and

    (f) omitted

    (g) to practise any profession, or to carry on any occupation, trade or business

    (2) Nothing in sub clause (a) of clause ( 1 ) shall affect the operation of any existing law, or prevent the State from making any law, in so far as such law imposes reasonable restrictions on the exercise of the right conferred by the said sub clause in the interests of the sovereignty and integrity of India, the security of the State, friendly relations with foreign States, public order, decency or morality or in relation to contempt of court, defamation or incitement to an offence

    Justice Misra began with a definition of the issues (I summarized those in my earlier post) and then reviewed the submissions of counsel on all sides of these issues. No one could say that his views were not considered. He then reviewed the concepts involved in defamation, reputation and character, whether there is a public interest in upholding reputation or if it is and should be simply a civil matter. He reviewed precedents from England, South Africa, the European Court on Human Rights, the United States, and legal authorities from many sources. He cited Greek philosophers, Hindu Scriptures, the Bible, the Quran, and other authorities.

    My point is not that Justice Misra’s decision is correct. My bias leads me to think that GREAT CARE must be taken to ensure that Democracy is not the victim of an individual’s use of prosecutorial authority to chill opposing viewpoints. Justice Misra addressed this issue as well. However, I think his conclusions are one logical result of the limiting language in Section 19 (2) quoted above.

    The Opinion is well worth reading if you want to understand the complexities that the concept of free speech and expression present in the context of other people’s rights and the function of government in striking a balance between constitutional rights and civil order.

    I also reproduce additional sections from his Opinion.

    114. We have referred to a series of judgments on

    freedom of speech and then referred to Devidas Ramchandra Tuljapurkar (supra) which dealt with Section 292 IPC solely for the purpose that test in respect of that offence is different. That apart, constitutional validity of Section 292 has been upheld in Ranjit D. Udeshi (supra). It is to be noted that all the cases, barring Odyssey Communication Pvt. Ltd. (supra) and Bobby Art International (supra) [Bandit Queen case], all others are in the fictional realm. We are disposed to think that the right of expression with regard to fictional characters through any medium relating to creation of a fiction would be somewhat dissimilar for it may not have reference to an individual or a personality. Right of expression in such cases is different, and be guided by provisions of any enactment subject to constitutional scrutiny. The right of freedom of expression in a poem, play or a novel pertaining to fictional characters stand on a different footing than defamation as the latter directly concerns the living or the legal heirs of the dead and most importantly, having a known identity. A person in reality is defamed contrary to a “fictional character” being spoken of by another character or through any other mode of narrative. Liberty of freedom in that sphere is fundamentally different than the arena of defamation. Therefore, the decisions rendered in the said context are to be guardedly studied, appreciated and applied. It may be immediately added here that the freedom in the said sphere is not totally without any limit or boundary. We have only adverted to the said aspect to note that what could legally be permissible in the arena of fiction may not have that allowance in reality. Also, we may state in quite promptitude that we have adverted to this concept only to have the completeness with regard to precious value of freedom of speech and expression and the limitations perceived and stipulated thereon.

    115. Be that as it may, the aforesaid authorities clearly lay down that freedom of speech and expression is a highly treasured value under the Constitution and voice of dissent or disagreement has to be respected and regarded and not to be scuttled as unpalatable criticism. Emphasis has been laid on the fact that dissonant and discordant expressions are to be treated as view-points with objectivity and such expression of views and ideas being necessary for growth of democracy are to be zealously protected. Notwithstanding, the expansive and sweeping and ambit of freedom of speech, as all rights, right to freedom of speech and expression is not absolute. It is subject to imposition of reasonable restrictions.

    ______

    “Freedom of expression is not an absolute value under our Constitution. It must not be forgotten that no single value, no matter exalted, can bear the full burden of upholding a democratic system of government. Underlying our constitutional system are a number of important values, all of which help to guarantee our liberties, but in ways which sometimes conflict. Under our Constitution, probably, no values are absolute. All important values, therefore, must be qualified and balanced against other important, and often competing, values. This process of definition, qualification and balancing is as much required with respect to the value of freedom of expression as it is for other values”.

    ____

    Criticism and commentary on policies, enactments or opinions do not remotely constitute defamation. Disapproval is not defamation. The argument ignores the scope and ambit of the contours of what is criminal defamation.

    ___

    186. One cannot be unmindful that right to freedom of

    speech and expression is a highly valued and cherished right but the Constitution conceives of reasonable restriction. In that context criminal defamation which is in existence in the form of Sections 499 and 500 IPC is not a restriction on free speech that can be characterized as disproportionate. Right to free speech cannot mean that a citizen can defame the other. Protection of reputation is a fundamental right. It is also a human right. Cumulatively it serves the social interest. Thus, we are unable to accept that provisions relating to criminal defamation are not saved by doctrine of proportionality because it determines a limit which is not impermissible within the criterion of reasonable restriction. It has been held in D.C. Saxena (Dr) v. Hon’ble The Chief Justice of India180, though in a different context, that if maintenance of democracy is the foundation for free speech, society equally is entitled to regulate freedom of speech or expression by democratic action. The reason is obvious, viz., that society accepts free speech and expression and also puts limits on the right of the majority. Interest of the people involved in the acts of expression should be looked at not only from the perspective of the speaker but also the place at which he speaks, the scenario, the audience, the reaction of the publication, the purpose of the speech and the place and the forum in which the citizen exercises his freedom of speech and expression. The Court had further observed that the State has legitimate interest, therefore, to regulate the freedom of speech and expression which liberty represents the limits of the duty of restraint on speech or expression not to utter defamatory or libellous speech or expression. There is a correlative duty not to interfere with the liberty of others. Each is entitled to dignity of person and of reputation. Nobody has a right to denigrate others’ right to person or reputation.

  • Shruti Dixit

    Mr. Varadarajan,

    Greetings!

    Loved your article. Sometimes, I have also encountered similar problems while ‘decoding’ the statute itself, to name a couple – Code of Civil Procedure, 1908 and Transfer of Property Act, 1882. However, I should specify that I don’t doubt the meaning of the text but the mere language of it, seems like a meaningless jumbled up provision to me. Just like a judgment is not only for lawyers alone to read and refer but also for the common man to understand, shouldn’t we question the language of a few of the legal provisions too?

    -Law student