Citing Literature in Judgements: A Quandary

The place for courts’ judgments in the literary world is unique. The substance of judicial pronouncements is considered far more important than the manner in which it is written. The use of literature or any literary devices to support the court’s decision, or any peripheral discussions are secondary as they do not have a sufficient bearing on the outcome of the case. However, these are essential aspects of judgments as they are not decrees that are enforced in a cultural vacuum. Judgment writing does in a way involve storytelling about the question of law at hand. Literature adds an element of humanity and empathy to judgments that goes to show that they are not fully divorced from the society we live in. As Martha Nussbaum contends, literary imagination is a public imagination that can help judges decide cases. The references to literary works in judgments enhance the non-legal readers’ ability to fully understand the judgment as the gap created by the potential lack of legal knowledge is
closed by drawing parallels between the case and literary works that they will be familiar with. For those with a legal background, such references can act as a way to simplify the judgment as they can make the same points in fewer words or uncomplicate legal theories by providing a frame of reference. This article analyses the use of literature in a case of a fake encounter killing by police officers where the Supreme Court had to determine the validity of their bail being cancelled.

  I. Facts

The judgement of Prakash Kadam and Others v Ramprasad Vishwanath Gupta and Others, written by Justice Markandey Katju, deals with the cancellation of bail given to police officers who were accused of murder. This judgement engages closely with the facts of the case, which is rather unusual in appeals. The appellant police officers were accused of being hired as contract killers to murder an individual in a fake encounter. They kidnapped, killed, orchestrated a fake encounter, and filed a false FIR containing the names of all the participating police officers. The Sessions Court had granted bail to the accused police officers, but the High Court cancelled it. The High Court’s decision was challenged by the police officers in the Supreme Court. Referring to these events as a testament to the “grisly depths” our society has descended into, the Supreme Court upheld the High Court’s decision to cancel the accused police officers’ bail. The Court recognised the serious nature of the
crime and held that the offences committed by police officers warrant harsher punishments as they are completely in contravention of their duties. Justice Katju used Shakespeare’s Julius Caesar to highlight the horrific conditions society would descend into if crimes like these are not strictly dealt with.

II. Literature Cited: Ambiguous Parallels?

Ideally, literature in judgements should enhance one’s understanding of the facts and their impact on society. From a judge’s perspective, it should supplement the “construction of an adequate moral and political theory” according to Nussbaum, which will provide a clearer vision of justice as well as a social enactment of that vision. Here, while the judgement sets out to do this, it falters as the context and circumstances of the literature quoted are not entirely congruent to the facts of the case. Yet, act as a reference for understanding and contextualising the seriousness of the police officers’ actions.

Quoting Mark Antony after Caesar is killed, Justice Katju writes society would be so used to violence and bloodshed and would be enveloped by domestic fury and civil strife, with carrion men begging to be buried. This is perhaps a little dramatic in the current case but is not unwarranted as the police do command a lot of power and authority and that they are capable of committing such a crime is not inconceivable. The quote from Julius Caesar was said in the aftermath of the gory killing of Caesar by his closest allies. Mark Antony, who is deeply affected by his death, is saying this from a place of shock, rage, and emotional turmoil upon seeing his friend’s corpse bleeding out after a cruel tyrannicide. The situation in this case is slightly different. The deceased was kidnapped and murdered upon the instructions of an individual who had some differences with the deceased – while this is not an attempt to diminish the death of the deceased, it is not quite the same as the senators stabbing Caesar to death for fear that he would undermine Roman republicanism. In this quote, Mark Antony is addressing Caesar who is dead. Perhaps Shakespeare’s true intention here was to communicate with the audience and act as a foreshadowing of the disastrous events that would take place in the wake of Caesar’s murder.

The judgement, in a way, plays the same role. The target audience of a judgement should include the parties involved in the case and their counsels, other practising lawyers, academics and students, and also, importantly, the public. It is primarily intended to be read and understood by the parties involved in the case. However, the effect of fake encounters by police on society that is highlighted through this extract is meant for the public. The message of this judgement is a call to a wider audience as a warning against what Justice Katju calls the ‘law of jungle’. However, when these words are divorced from the larger context of the play, they could serve as an example of the extent of depravity that would pervade society if such acts by the police were not dealt with severely.

Justice Katju tries to describe a lawless society by emphasising ancient thinkers’ belief that when the rule of law collapses, it would be replaced by ‘Matsyanyaya’ where the ‘law of jungle’ would take over and society would be stuck within a loop of bigger fish eating the smaller ones. Mark Antony’s speech in Julius Caesar is used as an example of lawlessness in society. The Mahabharata is cited to show that a king who fails to use his ‘rod of punishment’ does not protect the earth, and this would create a situation where stronger people destroy weaker ones, like big fish eating smaller fish. The reconciliation of these two literary works seems contradictory. The Mahabharata advocates for the king to act as the supreme being in the land and to control his subjects to ensure law and order. In Julius Caesar, on the other hand, the reason the Senators decide to kill Caesar is that he is able to maintain law and order in society while also successfully pursuing expansionary missions. He continued to grow popular and influential which was why he was seen as a threat to the Roman Republic as he was powerful enough to try and establish a monarchy. The difference between the two scenarios is quite stark as the former is built on the premise that there needs to be a king to ensure society does not descend into a state of lawlessness.

Another quote is used from Kautilya and Shatapatha Brahmana where it is said that stronger forces seize upon weaker ones during droughts when there is a dearth of water, a metaphor for law. This, again, seems disconnected from the context in this case. The police participating in a fake encounter at the bidding of a private individual is an aberration, it is an exception to the rule – it does not signify that there is lawlessness. In fact, allegedly, the accused police officers in this case went to great lengths to falsify the FIR in an attempt to legitimise their offences and make them seem lawful. Thus, the use of these three literary works in this case seems like an exaggeration of the incident that took place as it is being generalised as a normal state of being in society.

III. Textual Analysis

The judgment is written in a clear and articulate manner despite the dubious use of literature. Judicial writing is supposed to have clarity, it should not be hidden behind the veneer of complicated language to ensure readers comprehend it easily. Justice Katju himself believes great literature is in simple language. The language used in Prakash Kadam is simple and unambiguous. It is easy to understand. The full facts of the case are stated clearly at the beginning of the judgement. Then, the contentions of the appellants and the prosecution along with the precedents they used to support their arguments are clearly stated. The judgement then goes on to analyse these arguments and present their opinion on the matter. Some more facts are introduced at this stage to highlight the serious nature of this case and to show that it warrants the cancellation of bail. This diverges from the structure but helps make the judges’opinions clearer, although the facts need not have been stated in such great detail. Until this point, there is no reference to any literature at all, except the disconnected quote from Caesar at the very beginning. This makes it evident that all the legal issues in the case were already resolved and there was no need for any literary reference to tackle an issue that is not adequately resolved by the application of the law. The literature analysis was included at the very end after the appeal was dismissed. It gives little motivation for the reader to continue reading the judgement as the main points of contention had already been resolved. Placing the reasoning for judgement within the literary sources used would have made a more compelling argument and would have also made it a more interesting read.

The presentation of the facts of the case by Justice Katju gives priority to the plight of the deceased during the hours before his death and focuses on the cruelty of the accused police officers from the beginning. At the outset, the judgement mentions that the case reveals the “grisly depths our society has descended” into, immediately after the passage from Julius Caesar. This creates a sense of apprehension in the readers’ minds before they are familiarised with the facts of the case and perhaps also makes them biased in favour of the deceased.

The structure of the judgement could have been more coherent. The placement of the extract from Julius Caesar at the very beginning of the judgement is quite odd. There is no explanation for it in the immediate succeeding paragraphs and is only referred to at the very end, almost as an afterthought. The judgement concludes in the dismissal of the appeals and then the Court opts to include this literary analysis of the Matsyanyaya and Julius Caesar. If the extract was placed here instead of in the beginning and then explained along with the other extracts about the bigger fish eating the smaller ones, the two concepts would have been clearer. Reading Mark Antony’s quote first and then reading the rest of the judgement leaves the reader confused about how it is related to the case as it is not very evident initially, and as explained earlier, it is also not a fully accurate explanation of the facts of the instant case. The use of these literary works seems disjointed and slightly irrelevant. The descent of society into lawlessness is not as much of an imminent threat as the judgement makes it out to be and neither is the condition of society that harrowing. The intensity of the lawlessness in the literary works is hardly proportionate to the events that took place in this case.

According to Justice Michael Kirby of the High Court of Australia, “simplicity, brevity and clarity” are the hallmarks of a good judgement. He regards clarity as the greatest sign of judgement writing. Although this judgement is simple and fairly clear, it could have been more concise. The judgement goes into great detail while describing the facts of the case – it mentions the kind of land and the percentage of it that the accused and deceased jointly dealt in which is not relevant to decide the question of law. While the judgement is easy to read, many statements are unnecessarily repeated. Commenting on the fact that bail can be cancelled in circumstances other than when it has been misused, the court said, “That factor,though no doubt important, is not the only factor.” There is a clear implication here that there is more than one factor that must be considered. Yet the court further states that “There are several other factors also which may be seen while deciding to cancel the bail”. The latter statement was not required and only lengthens the judgement. The same arguments about there being no absolute rule that bail, once granted, can only be cancelled in case of misused is repeated more or less in the same words in two consecutive paragraphs.

Justice Katju was, however, mindful of the proceedings that were still underway in the trial court and to ensure the Supreme Court’s decision would not colour the lower court’s decision, he used phrases like “forcibly bundled” instead of the legal term ‘abducted’ to state that the deceased was taken away by force. The frequent use of the victim’s name instead of repeatedly referring to him as the deceased, and also using the names of the accused officers humanises them in the readers’ minds. This helps make the readers sympathise with the victim. Constantly using the terms ‘accused’ and ‘deceased’ can make the situation seem extremely disconnected from the reader and can also confuse them about which of the accused are being referred to when they are mentioned by numbers assigned to them. When they are mentioned by name, their positions are also mentioned, highlighting at each instance that most of the accused are police officers. The use of language in the judgement to highlight important facts and humanise the parties involved is commendable as they are not abstracted and too far removed that the reader cannot place themselves in the deceased’s situation. This makes the warning about the state of society more palpable.


IV. Optimising Judgement Writing

Here, though the judgement was legally sound, it was unnecessarily lengthened by the use of literature. The use of multiple literary works to repeatedly reinforce the same point which did not require any reinforcement made the citations moot. A better way to incorporate all the literary works would have been to explain them all in the context of the facts of the case to either draw a distinction or to show the similarities between the two scenarios. Adding them towards the end, after the decision had already been reached, as a testament to what society could possibly turn into weakens the structure of the judgement as it could have ended on the stronger legal arguments. The judgement would have had greater persuasive value if it was more concise.

While the incorporation of literary citations did not significantly impact this judgement, it is not to say that they have no place in judgement writing. When employed accurately, literary citations may significantly enrich judgments. Literature has a noteworthy impact on the readers’ minds as they are simultaneously assimilating the author’s and characters’ perspectives while attempting (and sometimes failing) to reconcile them with their own sense of justice and morality. Additionally, literature induces powerful emotions that can disrupt conventional beliefs and force one to confront their thoughts and beliefs. This can provide meaningful insights about the complex nature of human experiences which may be used as a lens through which the matter at hand is interpreted, infusing judgements with a sense of deeper understanding and relatability for the reader. However, this is wholly dependent on choosing the appropriate literary citation and engaging with it in a meaningful manner. A text that aligns with that particular case can offer innovative approaches to moral dilemmas. The intention is not make the verdict fathomless or foreboding, but to augment the legal rationale Using literature thoughtfully and fastidiously can foster deeper understanding and enhance the legal arguments while making the language more accessible to the public. Citing literature in judgements can invigorate the art that is judgement writing.




Ananyaa Murthy
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