Defamation judgment shows India's courts put failed writers to shame

On May 13, the Supreme Court of India ruled that the right to free speech In India is conditional on reasonability of proof.

That basically means defamation will stay criminal, and you should be really careful when you are about to call someone corrupt or a bigot because you must be ready to prove its truth and that the motive which informed the accusatory written word should be demonstrably for the public good.

Or else, you should be prepared to pack up and make your way to the nearest jail for a period up to two years.

I would suppose this judgment is not the kind Edward Snowden or Julian Assange would applaud with tears in their eyes. On the whole, the judgment is sympathetic to status quo and protective of those in power.

How many of us will now say the BJP chief Amit Shah is a Hindu zealot? Or that Sakshi Maharaj, who recently had a woman unbutton her jeans in full public view and peered into her private parts, is not a voyeur?

The one positive fallout of this judgement could be that Arnab Goswami would be going to jail every night.

But the point of this article is not to analyse the judgment. Others, all too ready to brave the two-year jail term would be working at it. I am more interested in seeing the connection between the way this judgment is written and why the chief justice of India, TS Thakur, shed tears the other day in the presence of the Prime Minister Narendra Modi.

He wept because despite a panel recommendation in 1987 to increase the number of judges from 21,000 to 40,000, nothing has happened. According to one estimate, there are over 40 million cases pending before the Indian courts. The judges are working double time. Are they? If so, how? Actually, why?

The May 13 judgment is 268 pages long. And here is how it indescribably begins: "The batch of writ petitions preferred Under Article 32 of the Constitution of India exposits cavil in its quintessential conceptuality and percipient discord between venerated and exalted right of freedom of speech and expression of an individual, exploring manifold and multi-layered, unbounded and unfettered spectrums, and the control, restrictions and constrictions, under the assumed power of reasonableness' ingrained in the statutory provisions relating to criminal law to reviver (sic) and uphold one's reputation." That's the first para for RK Laxman's Common Man seeking justice in the highest court in this semi-literate country. Please don't miss the "manifold and multi-layered, unbounded and unfettered spectrums…"

One might as well be chanting the Rig Veda on the Brahman, the Absolute Being. And there are 268 pages of this, every page crammed with the pompous, Punjabi-Victorian bastard-English. From my cursory glance, there is not a single, simple comprehensible sentence. The whole judgment is a pornography of postures. That's why the extremely supple English language, adequate to describe the most complex phenomena in the universe fails here. After all, Stephen Hawking has explained why God is not necessary in this language. Or Charles Simic, on the radiant meaningless of meaning and vice versa in his charming poems. The words he uses can be found in a pocket dictionary in my limited knowledge of the law, the 268 pages we are talking about are largely representative of the way Indian judges see the word: as failed writers; or, as imaginary Macaulays. Or, as in this case, both. They obfuscate the world they sit in judgment of. It is not as if India lacks sensible judges. Justice Mohammad Rafiq of Rajasthan High Court in a 2008 paper says: "A judgment is the result of application of law to the facts of a given case." And he goes on to explain the right concise parts to a judgment.

"1.The beginning of the judgment. 2. The Opening of the judgment. 3.Issues and Points for Determination 4.Reference to the evidence  both oral and documentary. 6. The formulation of the decision. 7. The operative part and 8. Signature." 

In the same paper, elsewhere, he says: "The structure of the judgment should be such that a reader while reading it without any difficulty understands the facts delineated and may be able to know every reason and the way in which it has been decided. It should be simple, brief and clear."

The defamation judgment is a work of extreme art that violates every one of these principles. Each, nearly interminable sentence runs amok desperately looking for its verb and subject, subject and predicate, adjective and adverbs.

What is qualifying who? Who is qualifying what? Who is the accused? Who is the accuser? The authors must have raked their collective brains together to figure out the verborrhea they had contracted while "cogitating". Why 268 pages? The literary flourishes, such as they are, must consume thousands of manhours, surely? And then the chief justice breaks down. Why? Because there are not enough number of judges. Fair enough.

But the few he has, must not waste time in epic, ornate works whose lone organising principle seems to be a compulsive reluctance to apply the joyous full-stop? The act of writing judgments need restraint. Period.