IANAL but I have worked with a lot of legislation and legal judgments. Its not just indian judgments that read like that - it seems to be the case across the board, for instance, I saw some translated palestinian court judgments where some paragraphs were not translated and marked as "omissis" (deliberate omissions), when I asked was told these were long flowery texts part of the original case filing - and were merely repeating what had been already said before (but in 10 sentences instead of 1), so the translators decided to omit it. This appeared to be related to the business of court filing fees which were charged based on the length of the document - it was beneficial to both the lawyer and the courts - since the court charged the fees based on length of the filing ... and the lawyer of course charged per page. Perhaps that explains the longer judgments ?
On Mon, Dec 23, 2013 at 6:51 PM, Thaths <[email protected]> wrote: > This isn't just a case of Inglish. Do Justices get paid by the word (or as > we used to say in college, "I wrote 50 pages... at a mark a page, I am sure > to pass")? Are the law clerks who write these opinions the real culprits > behind the wanton use of a Thesaurus? > > I know silklist has a handful of lawyers. It'd be interesting to hear their > theories. > > > > http://india.blogs.nytimes.com/2013/12/23/deracinating-the-evidence-in-the-language-of-the-courts/?_r=1&pagewanted=print > > Deracinating the Evidence, in the Language of the CourtsBy DILIP > D'SOUZA<http://india.blogs.nytimes.com/author/dilip-dsouza/> > > For several weeks now, Indian courts have been making news, most recently > with the Supreme Court decision that made homosexuality illegal again. > Given how high-profile these cases are, the court orders were examined and > dissected much more than is usual. > > At a panel discussion I was at last week, for example, one participant used > gaps in the discussion to pore over her copy of a Goa court’s rejection of > the Tehelka editor Tarun Tejpal’s anticipatory bail plea in a sexual > assault case< > http://www.nytimes.com/2013/12/01/world/asia/indian-editor-arrest.html>, > whispering in my ear about it from time to time. > > Such examination is all good, I believe, and not least because we learn > about the enigmatic language these judgments often use. Take for example, > the verdict in the Aarushi Talwar case, delivered by a Central Bureau of > Investigation Special Court in Ghaziabad, outside Delhi. In 2008, someone > murdered young Aarushi in her Delhi home, along with her family’s domestic > help, Hemraj Banjade. Five years of convoluted proceedings ended > sensationally in November, when the court > found< > http://india.blogs.nytimes.com/2013/11/25/couple-convicted-of-murdering-teen-daughter-and-domestic-help/ > > > Aarushi’s > dentist parents, Rajesh and Nupur Talwar, guilty of both murders and > sentenced them to life in prison. > > There are plenty of questions about the evidence and legal logic in this > case, but of that, another time. The judgment caught the eye for another > reason, or really plenty of them. Consider some excerpts from just the > first few paragraphs: > > “Dr. Rajesh Talwar and Dr. Nupur Talwar … have been arraigned for > committing and secreting as also deracinating the evidence of commission of > the murder of their own adolescent daughter – a beaut [sic] damsel and sole > heiress Aarushi and hapless domestic aide Hemraj, who … attended routinely > to the chores of domestic drudgery … [They] were bludgeoned and thereafter > jugulated to death.” > > “[T]here is nothing to suggest that intruder(s) perpetrated this fiendish > and flagitious crime.” > > “Dr. Rajesh Talwar delated the matter with the Police Station.” > > Let’s pause there. You get a sense of the brutality of the killings, sure, > but it is matched, even enhanced, by a certain rhythmic floridity > (“committing and secreting as also deracinating”) in the language. My New > Oxford American dictionary describes “deracinate” as a “poetic/literary” > term, and both “jugulate” and “delate” as “archaic.” “Flagitious” is > neither, but is terminally obscure. So how did these terms find their way > into this judgment? > > There’s plenty more to wonder at too, and not just the strange words. Again > and again in the judgment’s 200 pages, you will run into turns of phrase > that are, shall we just say, peculiar. (“To repeat at the cost of > repetition …” “[A witness came] to her house on hearing boohoo.”) > > Why use such language? > > It wasn’t always so. Judgments from an earlier era could be just as long, > but the language was generally clearer, simpler. Take even these prosaic > lines from a 1950 Supreme Court judgment: > > ” ‘Public safety’ ordinarily means security of the public or their freedom > from danger. … The meaning of the expression must, however, vary according > to the context. … [It] may well mean securing the public against rash > driving on a public way and the like, and not necessarily the security of > the State.” > > No real puzzle in that paragraph. And often enough, there were hints of > elegant humor as well. Like a Bombay High Court judgment delivered a year > before India won freedom: > > “[T]he learned Judge had before him evidence on which he was entitled to > hold that the eyes of the Second Kumar were brownish, and therefore similar > to the eyes of the plaintiff.” > > What kind of evidence, we might forever wonder, would “entitle” a judge “to > hold that the eyes … were brownish”? > > But in the decades since, Indian jurisprudence has built a formidable > reputation — as you see, perhaps it rubs off on me — for hard-to-follow > language and intensive use made of thesaurii. There are words never > ordinarily spoken, verbosity often straight out of left field. At times, > it’s difficult not to think that some of it is used merely to induce > head-scratching. > > For example, in a 1970 Supreme Court > judgment<http://www.legalcrystal.com/641198> about > film censorship, we find these lines: > > “Our standards must be so framed that we are not reduced to a level where > the protection of the least capable and the most depraved amongst us > determines what the morally healthy cannot view or read … If the depraved > begins to see in these things more than what an average person would, in > much the same way, as, it is wrongly said, a Frenchman sees a woman’s legs > in everything, it cannot be helped.” > > Or from the 1979 Supreme Court judgement< > http://www.legalcrystal.com/648642> in > a rape case, this 79-word sentence: > > “Punitive therapeutics must be more enlightened than the blind strategy of > prison severity where all that happens is sex starvation, brutalisation, > criminal companionship, versatile vices through bio-environmental > pollution, dehumanised cell drill under ‘zoological’ conditions and > emergence, at the time of release, of an embittered enemy of society and > its values with an indelible stigma as convict stamped on him — a > potentially good person ‘successfully’ processed into a hardened > delinquent, thanks to the penal illiteracy of the Prison System.” > > Apart from the lava flow of such vocabulary, the Indian judiciary is > famously overwhelmed with cases. In 2010, one report estimated that our > courts have over 31 million pending cases. At the rate they are being > heard, it will take 320 years to clear them. This is one reason people lose > faith in justice: what hope, if a simple case takes years to be decided? > > And when that does happen, what if the judgment is impossible to follow? > > All of which is why it’s refreshing to find conscious efforts to write more > simply, accessibly and accurately — efforts that might even, dare we hope, > rediscover the value of a sense of humor. > > Consider some recent examples from the Bombay High Court. Setting free a > man the police had arrested because he was drinking tea “in a suspicious > manner,” the court observed: > > “We were unaware that the law required anyone to give an explanation for > having tea … One might take tea in a variety of ways, not all of them > always elegant or delicate, some of them perhaps even noisy. But we know of > no way to drink tea ‘suspiciously.’ … And while cutting chai is > permissible, now even fashionable, cutting corners with the law is not.” > ["Cutting chai": a Bombay phrase for a cup of tea that two customers > share]. > > In a case to do with real estate zoning regulations, there was this > caution: > > “Just as sailors in ancient mythology learned to beware the alluring songs > of Sirens, tempting them to their doom on treacherous shoals, we too must > be cautious in accepting an argument that not only bodes ill for the future > but attempts to realize that which was never intended.” > > And in a case about the Bollywood classic “Sholay,” this not-so-subtle > channeling of Sherlock Holmes: > > “In other words, according to Mr. Dwarkadas, once we have eliminated the > impossible, whatever remains, however improbable, must be the truth.” > > Are these drops in an ocean of incomprehensible haze? Or do they represent > circumstantial evidence of a small but growing tribe of judges who value > clarity? > > On that last question, the Aarushi judgment has a poetic/literary comment: > “The law on circumstantial evidence is not tenebrous.” > > -- > Homer: Hey, what does this job pay? > Carl: Nuthin'. > Homer: D'oh! > Carl: Unless you're crooked. > Homer: Woo-hoo! >
