JUDICIAL OPINIONS AS LITERATURE

MOTI RAM & ORS. V. STATE OF MADHYA PRADESH

PROJECT: JUDICIAL OPINIONS AS LITERATURE

SUBJECT: LAW & LITERATURE
SUBMITTED TO: PROF. MANAV KAPUR

SUBMITTED BY:
M. RAGHUVAMSI
2ND YEAR 4TH SEMESTER
ROLL. NO: - 2012-27

NALSAR UNIVERSITY OF LAW, HYDERABAD

CONTENTS
Issues..........................................................................................................................................1
Judgement Analysis....................................................................................................................2
Conclusion..................................................................................................................................7

ISSUES
In this case, Supreme Court directed the Chief Judicial Magistrate to release the
petitioner-appellant. As nothing else was specified in the order, the magistrate ordered for a
surety of Rs. 10,000/- which the petitioner-appellant, owing to his poor economic status,
found difficult to produce. The magistrate also refused to accept the suretyship of the
petitioners brother as the person and his assets do not come under the jurisdiction of that
court. While deciding this case, J. Iyer found it pertinent to discuss on some much larger
issues concerning a large chunk of the population. He framed these three issues:
( 1 ) Can the Court, under the Code of Criminal Procedure, enlarge, on his own bond without
sureties, a person undergoing incarceration for a non-bailable offence either as undertrial or
as convict who has appealed or sought special leave ?
(2) If the Court decides to grant bail with sureties, what criteria should guide it in
quantifying the amount of bail?
(3) Is it within the power of the court to reject a surety because he or his estate is situate in a
different district or State?1

1 Moti Ram & Ors. v. State of Madhya Pradesh, AIR 1978 SC 1594, at 3.
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JUDGEMENT ANALYSIS
Justice V.R.Krishna Iyer starts the judgement with a quote from a fellow Communist
Party supporter and Nobel laureate, Anatole Frances tragic love story, The Red Lily.2 Albeit a
slightly different version from the original quote, it says, The law, in its majestic equality,
forbids the rich as well as the poor to sleep under bridges, to beg in the streets, and to steal
bread. This caricature, as he so aptly called, sets the tone for the judgement one which is
compassionate towards the plight of the poor and indigent. In quite a lot of judgements I have
come across so far, in the limited period of my association with law, the learned justices try to
first state the facts of the case and then look at the case laws and statutes and in tandem, form
their conclusions. But here, I see a deviation from that trend. 3 Here, by using that quote by
Anatole France, J. Iyer quite unequivocally stated where his allegiance lies. This is also
evident from the use of the adjective, miserable, to describe the mason. This is quite clearly
not a normal detached way of writing judicial opinion. If the word miserable, like so many
other words used in the judgement, is left out, the meaning derived from the sentence would
have been the same. But as Cardozo puts it, a drop in emotional value would have
followed.4 Justice Iyer is using this style of writing to make the reader sympathise with the
petitioner.
J. Iyer did not deter from using sarcasm in this judgement. Though it may be
interpreted, when read plainly, that he is just stating a fact, a closer look at the form of
writing, knowledge about the person writing the judgement and the whole manner in which
this judgement is written, would make one feel that he is probably being sarcastic towards the
Chief Judicial Magistrate. The learned judge put the phrase, to the satisfaction of the Chief
Judicial Magistrate, in quotes. While one may feel this is just indicative of the fact that the
order for bail passed by the Supreme Court had this phrase and that J. Iyer was just citing it, I
feel this was purposely placed in quotes to highlight the fatuous justification given by the
2 John C., The law, in its majestic equality, forbids the rich as well as the poor to sleep under bridges,
to beg in the streets, and to steal bread (Nov. 21, 2005, 08:43 PM),
http://cjyu.tripod.com/majesticequality.html.
3 I am not sure calling it a trend would be appropriate. It is mostly what I have, over the course of
time, observed.
4 Benjamin Nathan Cardozo, Law and Literature, in LAW AND LITERATURE AND OTHER ESSAYS AND
ADDRESSES 283 (Harcourt, Brace and Company Inc., 1931).
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judge to deny him bail. Maybe he was subtly hinting at the arbitrariness present in this area of
law because he later says that what sum is to be asked is based on a lot of variables. 5 At
another place, J. Iyer says that it shocks ones conscience to ask a mason to furnish securities
for Rs. 1,00,000/- but then says that the magistrate should be given the benefit of doubt for
not fully appreciating that our Constitution is meant for butcher, baker and pavement dweller
too.6 A person reading this would not make the mistake of believing that the judge actually
gave the benefit of doubt to the magistrate. This sarcasm is used to drive home the point that
the magistrate was very wrong in his interpretation of the bail order.
J. Krishna Iyer uses laconic style of writing in this judgement at various parts. Here,
he first said that the petitioner is not financially capable of bailing himself out. Then, instead
of going into the details about how he cannot ask his friends or relatives for the bail amount,
he summed it all up in one sentence Affluents do not befriend indigents. He again criticises
the magistrates judgement by using the sentence, geographic allergy at the judicial level
makes mockery of equal protection of the laws within the territory of India. He likens the
magistrates biased decision to only take properties as surety that are in his jurisdiction to an
allergy at the judicial level based on geographical boundaries which is akin to mockery of the
law. This metaphor clearly portrays his disgust and resentment of the magistrates decision.
Metaphors can be used as persuasive techniques in judicial opinions and J. Iyer uses it in just
that way to clearly show his disgust about the lack of compassion and consideration towards
the lowly.7
It is interesting to point out that J. Iyer used a word he had coined. Some judges have
the habit of using extremely difficult words while delivering judgements and J. Iyer would
probably be placed on the top of that list. Consider this sentence, If mason and millionaire
were treated alike, egregious inegality is an inevitability 8. This is said by him right after the
quote Anatole France. This line can be treated as an explanation to Anatoles quote. We can
5 Moti Ram, AIR 1978 SC 1594, at 29.
6 Moti Ram, AIR 1978 SC 1594, at 31.
7 Benjamin L Berger, Trial by Metaphor: Rhetoric, Innovation, and the Juridical Text, The Journal of
American Judges Association, 30, 38 (2002).
8 Moti Ram, AIR 1978 SC 1594, at 2.
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see here that he used the word Inegality instead of words like inequality.9 A quick check in
the online dictionaries revealed that he coined this term. He might have perhaps used it as
existing words in the language may not have been able to suitably convey in brief what he
wants to convey. He is not treating his judgement just as a judicial opinion but as a work of
literature. Eagleton in his article, What is Literature, said that Formalists presumed making
strange was an essence of the literary. He argued against this definition of literature saying
that what was literature for say English people may not be so for the French because of the
common use of the terms used in the work. If in ordinary legal jargon, also called legalese,
this word (inegality) is frequently used, then this may not have been estranging. But here, not
only is the word unfamiliar to the black-robed society but it is also a new word.
Another word that he used in the judgement which is not frequently used is processual.
While this is not coined by J. Iyer, it is still a rarely used term. These are just a few examples
and there are a lot more of them in the judgement. It is not for no reason that Manjula
Chellur, the then acting Chief Justice of the Kerala High Court in 2012, termed Justice
Krishna Iyers judgements as literary work.10
The learned judge then proceeds to form the factual matrix and in that, he has not
diverted from the issue at hand. He has looked at it from a very broad perspective looking to
alter the existing law. He says that from all these legal issues, one problem is very evident i.e.
the problem of human rights, especially freedom of the lowly. He uses lowly here to
indicate the weaker segments of the population. He uses this case as a launching pad for his
opinions on reforms in the law of bails.
He then says that to tackle this ubiquitous and poignant problem, he has invited the
Supreme Court Bar Association and Citizens for Democracy. Kerala State Bar Federation was
also involved in this process. This lends weight to the argument that he is going to forward in
the subsequent paragraphs.

9 AR lakshmanan was revising the 15th edition of Whartons Law Lexicon when he came across
certain unusual and self formulated words used by Justice V.R. Krishna Iyer.
10 Staff reporter, Krishna Iyer a revolutionary judge: Acting Chief Justice, THE HINDU, May 23,
2002, http://www.thehindu.com/todays-paper/tp-national/tp-kerala/krishna-iyer-a-revolutionaryjudge-acting-chief-justice/article3447983.ece.
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J. Iyer then gives reasons as to why has he decided to examine the question from a
wider perspective when he could have just answered the question of validity of the decision
of the Chief Judicial Magistrate and be done with it. He then uses the rhetoric of, little
Indians are forced into long cellular servitude, to explain that the poor are facing the brunt of
these archaic bail laws and that the issue of problems arising out of monetisation of the bail is
an issue pertaining to these little men. But this little problem has now acquired a bigger and
deeper meaning. He brilliantly tries to convince the reader with the usage of the metaphor
signature tone of the constitution to denote social justice. Signature tune, used here, can be
defined as one tune most closely identified with a certain something. He then says that the
little man is a consumer of this social justice who is in the risk of losing his liberty. He
equated this issue with the deeper issue of freedom for the indigent drove home the point for
the urgent need to look into this.
Richard Possner in his book, Law and Literature: A misunderstood relation, said that
the Lochner decision by J. Holmes is an example of legal realism. 11 There the judge applied
his personal beliefs when applying the law. Judicial opinions are coloured by the biases and
the perception of the judges about the society. In this judgement, we can definitely say that J.
Iyer was biased towards the poor and was trying hard to initiate some reforms through this
judgement. A judge has more than one option while deciding a case that is legally tenable.
Here, after stating that the Code of Criminal Procedure does not have a definition of bail and
promising to show that the actual sections about bail are also blurred semantics, he referred
to the definition of bail given in American Jurisprudence and Websters International
Dictionary, which help in substantiating his argument. But at the same time, he failed to look
at Blacks Law Dictionary which defines bail as a security such as cash or bond; especially
security required by a court for the release of a prisoner who must appear in court at a further
trial.12 If he had mentioned this definition, the persuasive power of this judgement would
surely have diminished.
J. Iyer then pointed out that bail reforms have long started in other countries and used
a set of rhetorical questions to emphasise the need for starting something similar in this
11 RICHARD A POSSNER, LAW AND LITERATURE: A MISUNDERSTOOD RELATION (Harvard University
Press, 1988).
12 Femi Falana, Monetisation of bail in Nigeria, PUNCH, Sep. 23, 2013, http://www.punchng.com/feature/thelaw-you/monetisation-of-bail-in-nigeria/.

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country too. To lend weight to his rhetoric about the ill effects of the present bail law, he used
quotations and extracts from speeches. He used an extract from Lyndon B. Johnsons speech
which is a good example of the usage of the rhetorical device of repetition. 13 This is used as a
medium to lend them emphasis to the need for reforms.
The first question as already stated in the first section is whether an undertrial can be
released on his/her personal surety. To answer this question, the style adopted by J. Iyer is
that of demonstrative or persuasive as described by Cardozo. 14 This answer was not handed
down in an imperative manner but was arrived at by an assiduous study of various committee
reports, both Indian and foreign. J. Iyer also studied the relevant sections of the Code of
Criminal Procedure, 1973. He comes to the conclusion after studying all this legal literature
that the word bail, when loosely used, is wide enough to include own bond. The use of
rhetoric here cannot be ignored. He first used the metaphor, semantic smog, to say that the
provisions of bail in the Code are ambiguous and then proceeds to say that the Gandhian
talisman, which is printed in every NCERT textbook, should be used as a tool of
interpretation.15 He makes a persuasive statement but he immediately follows it up with
justification by showing the reader how the sections are ambiguous. As Albert Sachs said, a
gap in the process of reasoning would be a flaw in the judgement and persuasion will not take
place. J. Iyer did not let that happen.16
Ultimately, he looked at bail from a very broad manner to mean a generic expression
used to describe judicial release, hence covering both personal bond and security. He states
that this interpretation is accepted keeping in mind the need for liberal interpretation in the
interest of social justice. He chose this interpretation from the interpretations available being
influenced by his personal views on the subject.

13 This particular type of repetition is called anaphora where sequences of words are repeated at the
beginning of sentences or clauses.
14 Benjamin Nathan Cardozo Supra no. 10, at 291.
15 He also said Law, at the service of life, must respond interpretatively to raw realities and make for
liberties.
16 ALBIE SACHS, THE STRANGE ALCHEMY OF LIFE AND LAW, (OUP 2009), at 55.
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While deciding on the last question, i.e. can the court reject a surety because his/her
property is situated in another district or state, J. Iyer again adopts a demonstrative style with
a heavy dose of rhetorical statements.

He starts off by posing some rhetorical questions

based on the Chief Judicial Magistrates decision on this issue. He then proceeds to explain
Article 14 of the Constitution and uses the equality argument quite forcefully to make his
point. J. Iyer used the literary device of antithesis here for a persuasive effect.17

17 Adivasi will be free in an unfree India antithesis. Moti Ram, AIR 1978 SC 1594, at 32.
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CONCLUSION
The judgement, even though there was a liberal use of rhetoric, has been mostly
written in a demonstrative style. There has been abundant use of analogies and illustrations.
Even the persuasive style of writing is backed by reference to various committee reports, the
Code of Criminal Procedure and the Constitution. What Albert Sachs called the logic of
persuasion is present is clearly present here. There is also a wide use of quotes, metaphors,
idioms and other literary devices.
J. Iyer starts his judgement by pointing out the flaws in the Chief Judicial Magistrates
judgement and then lists out the legal issues. Instead of directly delving into the questions he
framed, he first writes about the importance of changing the law and lists out the various
institutions roped in to figure out a solution to this problem. As there is no definition of bail,
he looks at other authorities. Here, as I have explained, he does not use those sources which
do not help in reaching the opinion he wants to. Various committees reports are looked at and
J. Iyer highlights the need for reforming the law again. Through this, he reaches the
conclusion that an undertrial can be released on his own bond, with or without surety.
Proceeding to the third question, he uses various illustrations and persuasive statements to
criticize the decision of the lower courts judge. J. Iyers style of writing in this judgement is,
almost throughout, demonstrative. Rhetoric has been used to good effect here. He finally says
that the Parliament should consider amending the law and signs off with a gentle reminder
to the judiciary to keep away from adopting geographic allergies.
It has finally been decided that the petitioner should be released on his own bond for a
sum of Rs. 1,000/-.

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