Supreme Court Justice Asif Saeed Khosa on Wednesday said that nowhere in the Supreme Court judgement that led to Nawaz Sharif’s disqualification do the judges call anyone ‘The Godfather’. And that’s true. 

This is what Justice Khosa’s dissenting note said: “The popular 1969 novel ‘The Godfather’ by Mario Puzo recounted the violent tale of a Mafia family and the epigraph selected by the author was fascinating: Behind every great fortune there is a crime. The novel was a popular sensation which was made into an acclaimed film. It is believed that this epigraph was inspired by a sentence that was written by Honoré de Balzac [French novelist and playwright]… as follows: (The secret of a great success for which you are at a loss to account is a crime that has never been found out, because it was properly executed). It is ironical and a sheer coincidence that the present case revolves around that very sentence attributed to Balzac...” 

However, some damage was done. Nawaz Sharif, even though not called a Godfather directly, was called a Godfather, thanks to our national habit for assuming opinions as facts and simplifying complexities to into hamfists. Should judges stick to just laying down the law in technical and mundane language, or should judgements also be a bit more literary and thought provoking? 

Justice Khosa is not the first judge to use literature to get a point across, and he is certainly not alone in a tradition of judges, many of them great, citing literary titans. 

On the principle of vicarious liability (where someone is held responsible for the actions of another person) a case was decided by the Bombay High Court in 1924 based on the concluding line of John Milton’s famous sonnet On his Blindness: “They also serve who only stand and wait.” 

In 2011, while deciding on a matter of euthanasia in India Justice Markandey Katju started a 141-page judgment by quoting Mirza Ghalib: “Marte hain aarzoo mein marne ki, Maut aati hai par nahin aati.” 

In 2012, in Britain’s High Court, Shakespeare’s King Lear was cited in a trial regarding an intimidating joke/comment on Twitter. They eventually overturned a conviction on the grounds that social-media users “are free to speak not what they ought to say, but what they feel”. 

The conviction of Dzokhar Tsarnaev, one of the antagonists of the 2013 Boston Marathon bombings, included lines from Julius Caesar: “The evil that men do lives after them; the good is oft interred with their bones.” 

A 2015 study by Scott Dodson and Ami Dodson found that William Shakespeare topped the list of the oft-quoted writer in US Supreme Court judgements along with Lewis Carroll. Other popular authors included George Orwell, Charles Dickens, Aldous Huxley and Aesop. 

Yes, in the use of poetry, prose or elaborate language, there is a risk that the legal point may go missing creating “judgment by thesaurus”, but it is doubtful that the judgement on the former PM was victim to this. But now that such a furore has been made of Sicilian mafias and Godfathers, judges do need to be cautious of being misinterpreted. The judgements on controversial cases are not just pertinent to the case but read by a mass audience that comes with its own biases and varying levels of understating of law, literature and politics - even when legal judgements are not and should not be affected by popular opinion.

Still, the decisions that Supreme Court judges make will stand the test of time, and often become literature in their own right. The decisions of US Supreme Court Justice Antonin Scalia are argued to be not just judgements but excellent literary prose. In one infamous dissent note Scalia implies that the unwillingness of his colleagues to overturn Roe v. Wade (the issue of the constitutionality of laws that criminalised or restricted access to abortions) would set America on the path to Nazism: “The Imperial Judiciary lives. It is instructive to compare this Nietzschean vision of unelected, life-tenured judges — leading a Volk (people) who will be ‘tested by following’ and whose ‘very belief in themselves’ is mystically bound up in their ‘understanding’ of a Court that ‘speaks before all others for their constitutional ideals’.” One of the greatest legal minds in the world, referencing the German Philosopher Nietzsche. Yes the prose is difficult, and it is complex, but so is the time we live in. 

Is it really harmful then that Puzo and Balzac made it into a dissenting note? As a commenter on the Dawn story about Justice Khosa’s clarification eloquently put it, “Loose authorotative talk leads to dangerous consequencies” (copied here verbatim). But one wonders what was really dangerous about the consequences for anyone except the PML-N and the disqualified Prime Minster. By all standards, the writing in the note is crisp, and the reference to Balzac does adequately portray the dilemma the bench was facing. We have all seen enough legal TV dramas as well as real world corruption to know that just because a crime wasn’t proven, it doesn’t mean it didn’t happen. 

Reading literary fiction makes people empathic. It challenges prejudices and enhances flexibility in decision-making. These are characteristics that should be desirable in practitioners of the law. We could have done worse, like having a Supreme Court judge who knew nothing about Puzo or Balzac.