1. A judgment is the
statement given by the Judge, on the grounds of a decree or order. It is the
end product of the proceedings in the Court. The writing of a judgment is one
of the most important and time consuming task performed by a Judge. The making
and the writing of a judgment and the style in which it is written, varies from
Judge to Judge and reflects the characteristic of a Judge. Every Judge, of
every rank has his own distinct style of writing.
2. A judgment is distinct
from a formal order as it gives reasons for arriving at a conclusion. In United
States it is called the ‗opinion‘; the explanation given by a Judge for the
order finally proposed or made. The backlog of cases has put a great pressure
on the Judges. It is no longer prudent to write a long and verbose judgment,
with uncontrolled expressions and citations. The pressure of work and stress on
most of the Judges today, demands improving skills in writing judgment, which
are brief, simple, and clear without compromising with the quality.
3. In civil matters, the
judgments as the requirement of law goes, may be broadly classified into two
categories, namely, long and short judgments. In original suits, the final
decision of a case requires writing of a long and reasoned judgment. These
includes suits for permanent or prohibitory injunction; possession and mesne
profit; specific performance of contract; cancellation of documents; partition
and possession; dissolution of firm and accounting; redemption or foreclosure
of mortgage etc. As compared to it a Judge is required to write short
judgments, in the matter of interlocutory orders; summary suits; preliminary
issues; review; restoration; accepting compromise etc.
The Code of Civil
Procedure, 1908 (the Code) ―Judgment‖ in Section 2(9) as the statement
given by the Judge, on the grounds of a decree or order. The ―order‖
under Section 2(14) is defined as formal expression of any decision of a Civil
Court, which is not a decree. The ―decree‖
in section 2(2) means formal expression of an adjudication, which, so far as
regards the Court expressing it, conclusively determination the rights of the
parties with regard to all or any of the matters in controversy in the suit and
may be either preliminary or final. The rejection of a plaint and determination
of any question under Section 144 is also a decree. Former Chief Justice, Hon‘ble High Court of
Rajasthan.
4. Order XX of the Code,
deals with ―Judgment and Decree‖, Rule 4 (1) provides that judgment of
Court of Small Causes need not contain more than the points for determination
and the decision thereon. Sub-Rule (2), provides for a judgment of other Courts
to contain a concise statement of the case, the points for determination, the
decision thereon, and the reasons for such decisions. Rule 5 mandates that in
suits in which issues
have been framed, the Court shall state its finding or decision, with the
reasons there of, upon each separate issue, unless the finding upon any one or
more of the issues is sufficient for the decision of the suit.
5. In criminal matters,
Chapter XXVII of the Code of Criminal Procedure, 1973 provides for ‗the
Judgment‘. Section 353 requires the judgment in every trial to be pronounced in
open Court immediately after the termination of the trial, or at some
subsequent time of which notice shall be given to the parties or their
pleaders. The judgment as provided in Section 354, is to be written in the
language of the Court, and shall contain the point or points for determination,
the decision thereon and the reasons for the decision. The section further
provides that the judgment shall specify the offence (if any) of which, and the
section of IPC, or other law under it, accused is convicted and punishment to
which he is sentenced. If the judgment is of acquittal it shall state the
offence of which the accused is acquitted and direct that he be set at liberty.
In case of conviction for an offence punishable with death or in the
alternative with imprisonment for life, the judgment has to state the reasons
for sentence awarded and special reasons for death sentence. In case of
conviction with imprisonment for a term of one year or more, a shorter term of
less than three months, also requires the Court to record reasons for awarding
such sentence unless the sentence is one of imprisonment, till the rising of
the Court or unless the case was tried summarily under the provisions of the
Code.
6. For orders under
Section 117 (for keeping peace and for good behaviour), Section 138(2)
(confirming order for removal of nuisance), Section 125 (for maintenance) and
Section 145 or 147 (disputes as to immovable properties), the Code provides in
sub-section (6) that order shall contain the point or points for determination,
the decision thereon and the reasons for the decision. Section 355 provides for
a summary method of writing judgment by Metropolitan Magistrate, giving only
particulars regarding the case, name, parentage and residence of the accused
and complainant, the offence complained of or proved; plea of the accused and
his examination (if any); the final order and the date of order, and where
appeal lies, a brief statement of the reasons for the decision. The order to
pay compensation where the Court imposes sentence or fine; order of
compensation for groundless arrest and the order to pay cost in non-cognizable
cases, may be made with the judgment under Sections 357, 358 and 359 of the
Code. Section 360 provides for order to release on probation and special
reasons in certain cases where the Court deals with accused person under
Section 360 or Probation of Offenders Act, 1958.
7. The Code of Civil
Procedure, 1908 and Code of Criminal Procedure, 1973 have provided sufficient
guidelines for writing judgment. These, however, are not exhaustive. There is a
wide discretion left with the Judges to choose their style of writing,
language, manner of statement of facts, discussion of evidence and reasons for
the decision.
8. The judgment writing
consumes the major part of Judge‘s work. Taking into account the mounting
arrears, and the number of cases in the daily cause list, the burden in
judgment writing sometimes becomes intolerable. The Judges by their experience,
find methods to reduce this burden, by writing brief opinions. The judgment,
however should serve the requirement of law without compromising with the
quality.
9. A judgment is not
written only for the benefit of the parties. It is also written for benefit of
legal profession, other judges and appellate Courts. The losing party is the
primary focus of concern. The winner is not much interested in the reasons for
success, as he is convinced of the righteousness of the cause. The looser,
however, in the expensive litigation is entitled to have a candid explanation
of the reasons for the decision. It is not only for exercise of any appellate
right but also to uphold the intellectual integrity of the system of law,
impartiality and logical reasoning.
The lawyer is interested
in the judgment as he understands the analysis and expositions of legal
precedents and principles. The lawyers also examine the judgments for learning
they provide, and for the reassurance of the quality of judiciary. They can
easily distinguish, the lazy Judge, the Judge prone to errors in fact finding,
the Judge having difficulty in understanding of laws of evidence, or the Judge,
who has difficulties with complex propositions of law.
10. The other Judges lower
in hierarchy, facing common legal problems or in the same Court are also
interested in the decisions. The judge is also aware that his decision may be
reported and that it may establish a legal principle, binding, until it is set
aside by the appellate Court. The best Judges perform their reasoning opinion
honestly to the best of their ability without undue concern that the appellate
Court may find error or reach a different conclusion.
11. The Judge must state
the facts explicitly and consciously as they are found and the reasons for the
decision.
12. The judgment is also a
reflection of the conscience of a Judge, who writes it, and evidences his
impartiality, integrity and intellectual honesty. The judgment writing provides
opportunities for judicial officers to demonstrate his own ability and his
worthiness to be a participant in the high tradition of moral integrity and
social utility.
13. According to Lord
Templeton as spoken by him in a BBC interview in 1979, the Judges and their
judgments can be broadly divided into three categories; philosophers,
scientists and advocates1. Mr. Justice V. Krishna Ayer falls in the category of
philosopher, and Mr. Justice P.N. Bhagwati, Mr. Justice D.A. Desai and Mr.
Justice Kuldeep Singh as social scientists. A Judge falling in the category of
Advocate, leave traces of eloquences, in their judgments.
14. Before writing a
judgment a Judge must remember that he is performing a public act of
communicating his opinion on the issues brought before him and after the trial
by observing fair procedures. He is required to tell the parties of the
decision, on the facts brought before him, with application of sound principles
of law, his decision, and what the parties are supposed to do as a necessary
consequent to the judgment or to appeal against it. It is basically a
communication to the parties coming before him for a decision. 1 Hon.
Justice Michael Kirby: ‗On the Writing of Judgments‘ based on a lecture to the
First Australian conference on literature and the law, University of Sydney
15. A judgment must begin
with clear recital of facts of the case, cause of action and the manner in
which the case has been brought to the Court. A Judge must have essential facts
in mind, and its narration should be without any mistake. The facts must come
from the record and not from the abstract and briefs without any partisanship
or colour to its narration. The importance of first paragraph of the judgment
cannot be overemphasized. It must answer the questions as to how, when, where,
what and why, which is an advise given to judicial cubs. The readability of the
opinion improves if the opening paragraph answers three questions namely what
kind of case is this, what roles plaintiffs and defendants had in the trial,
and what are the issues, which the Court has to decide and answer, giving
sufficient information to the reader to proceed with reading the judgment.
16. Ordinarily a brief
statement of fact is sufficient if it indicates the context of the dispute so
that legal principle chosen for decision can be understood. At times, however,
it may be necessary for judgment to record substance of factual context and the
details of evidence placed before the Court. If the complexity of the case
requires, the Judge may choose to state the facts chronologically, to
understand what is decided. In such case the Judge may ask the respective
counsel a chronological statement of facts to focus the attention of the
parties to shorten the argument and make it casier to write the judgment. It is
easier to write short judgment where legal issues are involved. Where the facts
are in dispute, the Judge may prefer to narrate the facts in greater detail.
The facts, which are part of the essential reasoning process of the Judge‘s
decision should be indicated and recorded.
17. The issues are settled
between the parties before taking evidence. In criminal cases, charges framed
by the Court lead to the trial. The judgment must quote the issues/or charges
as the case may be immediately after the narration of facts. It is always
feasible to decide preliminary issues like jurisdiction of Court before going
into the merits of the case.
18. The formulation of
issues, should be initiated as early in the proceedings as possible. Once the
parties are clear in their mind about the essential questions, they may shorten
the proceedings. It also helps to focus the mind of the judge on the precise
matters to be determined. When the essential questions of law are clear, the
procedure becomes simplier. It is always helpful to quote the statute and the
settled law, if it can be found in authority, to proceed further with
discussing the evidence. The Hon‘ble Dennis Mahoney. AO. QC. In ‗Judgment Writing;
Form and Function‘, has opined, with some wisdom:- ―In formulating the
question, the judge will no doubt employ the assistance, which can be derived
from the counsel. It is, I think, dangerous to attempt to impose the judge‟s
formulation of the determinative question upon counsel. The form of that
question must be drawn out by dialogue with counsel for each side. Unless
counsels are involved in formulating the question, they are not committed to
form of it. And dialogue with counsel is important. There is practical wisdom
in the aphorism: “How do I know what I think until I hear what I say.”
19. The judge must give
the details of the evidence led before it. However, only the relevant evidence
must be narrated and that too very briefly giving the purpose for such evidence
was led. The documents admitted in evidence after they are proved on record
must find their mention along with oral evidence by which they were proved. A
brief narration, however, will suffice if it is precise and is clearly stated.
20. A Judgment must
briefly state the contentions of the counsels on the points of determination.
So far as possible all the contentions raised by the counsels except those, which
are wholly frivolous must be mentioned on the record. After the Judge has met
with all the contentions he must record, that no other point was pressed. This
statement recorded in the judgment, will take care of challenge to judgment on
the points, which were not raised before the Judge. The Supreme Court has given
sanctity to the statements given in the judgment and insist that where the
lawyer challenges any incorrect statement, he should to first file a review
petition, to remind the Judge of any error, which may have crept in the
judgment.
21. Before deciding a
issue or recording finding on a charge, the relevant evidence must be
discussed. Every Judge has his own style of discussing the evidence. It is,
however, always better to discuss the evidence before giving an opinion to rely
upon it.
22. The soul of a judgment
are the reasons for arriving at the findings. These are also called ‗the
opinion‘ of a Judge. There is no rigid rule, as to how a finding may be
recorded. The Judge, however, should give his reasons. It is not sufficient to
say that he believes the evidence or agrees with the argument. The Judge must
give his reasons for such belief and agreement. An elaborate argument does not
always require elaborate answer.
23. A Judge is a human being.
He possesses the same strength and weakness in character as a common man. Like
all human being a Judge possesses personal preferences and pre-dispositions. It
is advisable for a Judge to follow settled norms and practice for writing
judgment, in the beginning of his career. With experience he may take liberties
of adopting new methods and innovate. The logical reasoning, however, must
follow in reaching to a conclusion. A Judge is not free from partiality and
bias. There may be a lurking or sub-conscious bias, which may not be known to
the Judge himself.
The bias may have arisen
on account of any factor, which ordinarily affect the life of the human being.
The Judge may be influenced by the subjective preferences or biases in an
unacceptable way. With experience a Judge may identify such bias and may win
over it. The best way to overcome the judgment to be affected by such outside
and unknown factor is to follow logical reasoning
24. The method of arriving
at a conclusion is the most important part of judgment writing. The process by
which the conclusion is arrived, and the statement in the judgment of that
process, tests a Judge of his ability and integrity. It may either be by syllogistic
process, inferential process or intuitive process. ‗Syllogism‘
means, a deductive scheme of a formal argument consisting of a major and a
minor premise and a conclusion. In syllogistic process the Judge adopts a
deductive process in which he accepts an argument on a major premise, which
over weighs the minor premise to draw his own conclusion. In case of
inferential process the Judge relies upon the evidence and reaches to a
conclusion. In the intuitive process, the Judge adopts psychological process by
which the conclusion is arrived at more by intuition rather than reasons. In
such a method the Judge may believe a witness in part or whole and then draw
the conclusion by justifying it from the reasoning supplied by him either by
belief or experience. In both the methods, in case what is being done is to
arrive at a truth, the method may be justified.
25. There is a difference
between neutrality and impartiality. Impartiality requires cool
reason uncontaminated thinking without being influenced by personal
commitments, biases and preconceptions. The neutrality on the other hand means
the Judge is non-aligned. A Judge may begin being neutral and continue to be so
in the process of the trial, but at the end he has to decide the case in favour
of either of the parties without any partiality. Impartiality requires a Judge
to rise above all values and perspectives.
26. A Judge must clearly
write the operative portion of the judgment, which pronounces his conclusion
over the issues brought before him. He must give clear and precise direction
and the manner in which the directions have to be obeyed in conformity with the
prayers made in the plaint. The object of good judgment is to conclude the
dispute and not to leave the matter undecided. The judgment should leaving
nothing to be brought back to the Court. The operative portion of the order
should as far as possible self-executing and self-contained.
27. In criminal matters
after recording conviction, the Judge has an important task of giving sentence,
fine or compensation. The law requires the accused to be heard before awarding
sentence. The Judge must give reasons for giving sentence, fine and apportion
the compensation to the victim for the sufferance, commensurate with severity
of the offence.
28. Plain and simple
language has always been appreciated in writing judgments. Brevity, simplicity
and clarity are the hallmarks of the good judgment. The greatest of these is
clarity. It is better to avoid invidious examples, unnecessary quotations, and
lecture. A controlled judgment without any legalese, sharp criticism, pinching
comments, and sarcasm invokes respect to the court. Short sentences and para
phrasing, head notes and subheading, wherever it is necessary, is a recommended
style of writing a judgment.
29. The chief guidelines
for using plain language are:
(1) Achieve a reasonable
average sentence length.
(2) Prefer short words to
long ones, simple to fancy. Minimise jargon and technical terms.
(3) Avoid double or triple
negatives. No reader wants to wrestle with sentences. The document need not
be checked unless it is desired by a party. The document may be checked, if it
is desired by party. He could not have created the trust, except for the
benefit of the defendant. He could have created trust only for the benefit of
the defendant.
(4) Prefer the active
voice; single very-object-sentence. Notice must be given compares poorly with the
landlord must give notice. Passive Voice: He was acquitted by the Court.
Active Voice: The Court acquitted him. Passive Voice: It was reported by the
Court Commissioner that the disputed land was covered by water. Active
Voice: The Court Commissioner reported that the land was covered by water.
(5) Keep related words
together, specially subject and very, verb and object.
(6) Break up the text with
headings and subheadings.
(7) Use parallel
structures for enumerations.
(8) Avoid excessive cross
references, which create linguistic mazes.
(9) Avoid over defining.
(10) Use recitals and
purpose clauses.
(11) Avoid legalism to
make your judgment reader friendly.
30. Brevity is the virtue
of a wise man and is familiarized by those, who have clarity in mind. No one
likes to read long judgments. Brief opinions are comfortable in reading. Shri
Gurcharan Das in his article published on 03.10.2003 in ―Times of India‖
said:- ―Soon after he
became prime minister, Winston Churchill wrote to the First Lord of the
Admiralty to ask, ‗Pray
Sir, tell me on one side of the sheet of paper, how the Royal Navy is preparing
for the war,‘ Churchill knew that if he did not qualify his request, he would
have received a unreadable 400 page report.
Brevity is a great virtue,
and nowhere more needed than in India. Our judges write judgements that are too
long; our lawyers ramble on; our executives try to impress with lengthy memos;
our politicians well try to get in a word. That less can be more is especially
true in good writings. I discovered this at Proctor and Gamble, a company as
famous for its legendary one page memos as for its products. Its wondrous one
page memo was created out of the same confidence in reason and technology that
built America, and is as elegant as Paninis grammer or Euclids geometry.
Based on the reasonable
assumption that all managers suffer from an overload of paperwork and files, it
is simple factual and logical. The reader can scan it in minutes and grasp its
contents it has just enough data that a manager needs to make decision and no
more. It is clear, precise, eschews hyperbole, and it actually improves the
speed and quality of decisions, and hence it can be a source of uncompetitive
advantage. We Indians are verbose, and need to be reminded that humans were
born with two ears and two eyes, and one tongue, so that we should see and hear
twice as much as we say. Shakespeare too, I, think, must have had us Indians in
mind, when he wrote in Richard III; ‗Talkers are no good doers.‘ Hence he
offers us this advice in Henry V ‗Men of few words are best of men‘.
31. The judgment must be
designed and structured so that readers find their way through it easily and
quickly. There is no such thing as good writing. There is only good rewriting.
It is absolutely necessary to revise the judgment. A revised judgment takes
care of errors and reassures the Judge of the correctness of his opinion. It
also ensures to avoid silly mistakes. It is advisable to the Judges, to read
their judgments after a few years, to ensure that same mistakes are not
repeated. There is always a room for improvement.
32. The judgments are
either given extempore or reserved to be pronounced later. The practical
experience shows that extempore judgments given at the close of the arguments,
are addressed to the counsels and the parties. The extempore judgments rarely
attempt to decide important questions of fact or law. The reserved judgments,
on the other hand, survive longer in deciding the issues and in the memory of
those for whom it is written.
33. The Privy Council
adopted the style of tendering the advice of the Board to Her Majesty in which
only one judgment was given. The form is no longer rigidly applied. However,
the style of writing judgment namely using simple language with clarity of mind
both in writing legal principles and conclusions, adds quality to the judgment.
34. The language employed
by a Judge speaks of his character. A humble Judge with human personality
avoids using intemperate and unparliamentary language. It is always better to
avoid using words ‗I‘, ‗can‘ and ‗must‘ in the judgments. Some examples of
temperate language are: ‗He is wrong in saying ……….. He is not
correct in saying ……‘ ―The plaintiff‘s case is full of falsehood………
Between the two I prefer the evidence of defendants…….‘ ‗I do not believe
him…… He is not worthy of belief……….‟ ―The witness is not telling
the truth…….. The witness is one step removed from being a honest man……‟
35. The primary purpose of
pronouncing a verdict is to dispose of the matter in controversy between the
parties before it. A judge, however, is not expected to drift away from
pronouncing upon a controversy, and to sit in judgment over the conduct of the
judicial or quasi judicial authority, or the parties before him and indulge in
criticism and commenting thereon unless such conduct comes, of necessity under
review and the expression becomes part of reasoning to arrive at a conclusion
necessary to decide the main controversy. So far as possible a judge should
avoid derogatory and disparaging remarks.
Nonetheless, suble irony,
detectable only by the cognoscenti, is a useful in conveying a key point in the
reasoning of a judge. “A Judge
entrusted with the task of administering justice should be bold and feel
fearless while acting judicially and giving expression to his views and
constructing his judgment or order. It should be no deterrent to formation and
expression of an honest opinion and acting thereon so long as it is within four
corners of law that any action taken by a subordinate judicial officer is open
to scrutiny in judicial review before a superior forum with which its opinion
may not meet approval and the superior court may upset his action or opinion.
The availability of
such fearlessness is essential for the maintenance of judicial independence.
However, sobriety, cool, calm and poise should be reflected in every action and
expression of a Judge.
36. The style of judicial
writing is constantly changing. The Latinism and legal clichés are the days of
past. It may not be wise to use metaphors and idioms, to prove a point. The
judges avoid using words or expression showing gender-bias. There is some
difference of opinion regarding use of foot notes, appendices, and other adds
to communication. The judges in America use foot notes, whereas Judges in
Canada and Australia find them offending. Brevity, simplicity and clarity have
always been the watch words for effective judicial writing.
37. Diversity of opinion
in judgment writing is the strength of the common law judicial tradition. It
provides never ending stream of ideas and ways of communicating them. The
experimental variety helps to develop the law. It is the privilege of each
succeeding generation of judges to nurture the proud heritage and advance this
precious legacy.
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