The Art of Writing Judgments*
Hon’ble Shri M. A. Bakshi, Vice President, ITAT, Chandigarh Bench
The author explains that a judgment is not a piece of literature to be written in the style of Shakespeare or Milton but its language should be simple, yet elegant, containing phrases and expressions which convey with lucidity the legal ideas to the reader.
I consider it my privilege to have been assigned the task of sharing my views with my distinguished colleagues on “Art of Writing of Judgments”. The real purpose of sharing thoughts with you is introspection, recapitulations and refreshing our knowledge which is necessary to keep the institution in good health. Without wasting any time, I revert back to the subject that has been assigned to me.
The topic assigned to me is “The Art of Writing Judgments”. Before dealing with the topic it is imperative to understand the meaning of the expression “Judgment”.
As you know, section 2(9) of the Civil Procedure Code, 1908 defines the term ‘Judgment’ to mean “The statement given by the Judge of the grounds of a decree or order”.
In Halsbury’s Laws of England, 4th Edition, Volume 26 P. 260, it has been said “A judgment or order in its final shape usually contains in addition to formal parts:— (i) A preliminary or introductory part, showing the form of the application upon which it was made, the manner in which and the place at which, the writ or other originating process was served, the parties appearing any consent, waivers, undertakings or admissions given or made, so placed as to indicate whether they relate to the whole judgment or order or only part of it, and a reference to the evidence upon which the judgment or order is based and (ii) a substantive or mandatory part, containing the order made by the court.
A poor judgment written in impressive language is lauded by many of course by people who do not understand law. Judgment is not a piece of literature to be written in the style of Shakespeare or Milton.. Judgments are not novels or dramatic works so as to bring out the various aspects of human psychology in minute details leading to an emotional climax. They should be just cut and dried statements of facts and law, interwoven in logic, in order to get at the truth, but no material fact should be omitted Language is a medium for conveying one’s thoughts and it is essential that they should be conveyed in a manner which is lucid as well as impressive.
Before we proceed to understand the meaning of a “Judgment” I consider it necessary to mention that in the Income-tax Appellate Tribunal our decisions are termed as “Orders”. In Civil law there is a distinction between “an order” and “a Judgment”. Though strictly speaking the order of the Tribunal may not be construed as “Judgments” within the meaning of section 2(9) of the C.P.C. (5 of 1908), yet our orders being open to judicial scrutiny, in my view must contain all the essentials of a good judgment. Therefore wherever reference is made of a judgment it will aptly apply to the order of the Tribunal.
With this prelude I proceed to deal with some of the essential features of Judgment Writing.
To put it plainly I compare the writing of judgment with construction of a house property. For construction of house property, you require a plan then material and lastly execution; i.e., construction of the property. Similarly, for writing of judgment we need a plan in respect of which we have to collect material and then put it to execution. The plan for writing of judgment would be the issue which is to be decided. The material for the judgment would be provided by the record, the arguments of the parties and the relevant case law. Putting that material in right place would result in a judgment.
It would be relevant to refer to section 254(1) of the I.T. Act, 1961. The section empowers the Tribunal to pass an order as it thinks fit. It may thus appear that Tribunal may accept one view or the other from the parties without assigning any reasons. So, however, it is not so.
In the case of Union of India vs. M.L. Kapoor AIR 1974 SC 87, their Lordships of Supreme Court observed as under –
“If the statute requires recording of reasons, then it is the statutory requirement and, therefore, there is no scope for further inquiry. But even when the statute does not impose such an obligation it is necessary for the quasijudicial authorities to record reason as it is only visible safeguard against possible injustice and arbitrariness and affords protection to the person adversely affected. Reasonss are the links between the material on which certain conclusions are based and the actual conclusions. They disclose how the mind is applied to the subject-matter for a decision, whether it is purely administrative or quasijudicial. They should reveal rational nexus between the facts considered and the conclusion reached. Only in this way can opinions or decisions recorded be shown to be manifestly just and reasonable.”
The following views expressed by Hon’ble Justice S. S. Mukherji, C.J. are also pertinent in this context:—
“Decisions from many administrative Tribunals come up for final adjudication before the highest courts. These highest courts in delivering judgments have to bear in mind that their decisions are intended to guide administrators. Very often long and elaborate judgments of voluminous character fail to offer that effective guide to the administrators in doing practical justice in the light of such judgments. Many of the modern decisions of these higher courts on labour, income tax, customs, copy-rights, trademarks are set out in old traditional patterns of judgments in a manner which are confusing to labour administrators or the income tax administrators or other administrators who are to act according to such judgments. They are completely lost in the forest of discussions contained in the judgments by these courts. Elaborate judgments and even separate judgments by individual judges of the same Bench delivering the decision, often make the position difficult from the point of view of their ultimate utility and practical application. Even interpretation of what these courts intended to say becomes the subject of great and lengthy arguments and a good deal of time is wasted in finding out what these judgments intended ultimately to lay down. It is suggested that a new pattern of judgment is called for in modern jurisprudence specially in these classes of cases which are intended to guide administrators like the Income Tax Officers, labour officers, the Industrial Tribunals, the custom officers and other administrative agencies including corporations, municipalities and public authorities. Judgments in these classes of cases must have a different pattern. They must be short, direct, practical and to the point, emphasizing the directives and avoiding parleys and abstruse dissertations”.
Thus, it is necessary for us to pass a reasoned order which will meet the test of a judicial decision.
The requisites of a judicial decision were laid down by the Supreme Court in Bharat Bank Ltd, Delhi vs. Employees of Bharat Bank Ltd., Delhi AIR 1950 SC 188. Their Lordships quoted with approval following passage from Cooper vs. Wilson, 1937, 2KB 309 at page 340:—
“A true judicial decision presuppose an existing dispute between two or more parties and then four requisites :—
(i) the presentation (not necessarily orally) of their case by the parties to the dispute
(ii) if the dispute between them is a question of fact, the ascertainment of the act by means of evidence adduced by the parties to the dispute and often with the assistance of arguments by or on behalf of the parties on the evidence
(iii) if the dispute between them is a question of law, the submissions on the legal arguments by the parties and
(iv) a decision which disposes of the whole matter by a finding upon the facts in dispute and application of the law of the land to the facts so found, including wherever required a ruling upon any disputed question of law.”
These principles were reiterated by their Lordships of the Supreme Court in the case of Maqbool Husain vs. State of Bombay, AIR 1953 SC 325.
With reference to the orders passed by the Income-tax Appellate Tribunal the Hon’ble Supreme Court in the case of Omar Salay Mohamed Sait vs. CIT 37 ITR 151 (SC), laid down the following principles for judgment writing:-
“The Income-tax Appellate Tribunal is a fact finding Tribunal and if it arrives at its own conclusions after due consideration of the evidence before it the court will not interfere. It is necessary, however, that every fact for and against the assessee must have been considered with due care and the Tribunal must have given its finding in a manner which would clearly indicate what were the questions which arose for determination, what was the evidence pro and contra in regard to each one of them and what were the findings reached on the evidence on record before it. The conclusions reached by the Tribunal should not be coloured by any irrelevant considerations or matters of prejudice and if there are any circumstances which require to be explained by the assessee, the assessee should be given an opportunity of doing so. On no account whatever should the Tribunal base its findings on suspicions, conjunctures, or surmises; nor should it act on no evidence at all or on improper rejection of material and relevant evidence or partly on evidence and partly on suspicions, conjunctures or surmises.”
Order to contain reasons
Recording of reasons has been read as an integral part of a judgment. Recording of reasons is considered to be a part of natural justice and every judicial authority. Quasi-Judicial Authority including Administrative Tribunal is bound to record reasons in support of the orders passed by it. Judgment is the most important document for the parties as well as the Judge. So far as the parties are concerned, what is important is the ultimate decision and not the reasons for the decision. Reasons assume importance only when an appeal or revision is filed against the judgment. But so far as the Judge is concerned, the reasons are very important. They indicate the working of his mind, his approach, his grasp of the questions of fact and law involved in the case and the depth of his knowledge of law. In short, the judgment reflects the personality of the Judge and, therefore, it is necessary that it should be written with care and after mature reflection. It will be useful to quote the following observations of Hon’ble Justice Mukharji:—
“The supreme requirement of a good judgment is reason. Judgment is of value on the strength of its reasons. The weight of a judgment, its binding character or its persuasive character depends on the presentation and articulation of reasons.
Reason, therefore, is the soul and spirit of a good judgment.”
In the case of Maneka Gandhi vs. Union of India AIR 1978 Supreme Court 597 their Lordships of the Supreme Court laid down the following principle. The Courts insists upon disclosure of reasons in support of the order on three grounds:
(1) the party aggrieved has the opportunity to demonstrate before the appellate or revisional court that the reasons which persuaded the authority to reject his case were erroneous;
(2) the obligation to record reasons operates as a deterrent against possible arbitrary action by executive authority invested with judicial power; and
(3) it gives satisfaction to the party against whom the order is made. The power to refuse to disclose reasons in support of the order is “exceptional in nature and it ought to be exercised fairly, sparingly and only when fully justified by the exigencies of an uncommon situation”.
Similar view has been expressed in S.N. Mukherjee vs. Union of India AIR 1990 Supreme Court 1984.
In the case of CIT vs. Walchand AIR 1967 Supreme Court 1435 Hon’ble Supreme Court held. “the practice of recording of decisions without reasons in support cannot but be deprecated.”
In the case of CIT vs. Vikas Chemi Gum India, 276 ITR 32, the Punjab & Haryana High Court emphasized the necessity of giving reasons in quasi judicial orders. I quote from the judgment:—
“The requirement of recording of reasons and communication thereof has been read as an integral part of the concept of fair procedure. The necessity of giving reasons flows from theconcept of rule of law which constitutes one of the corner stones of our constitutional set up. The administrative authorities charged with the duty to act judicially cannot decide the matters on considerations of policy or expediency. The requirement of recording of reasons by such authorities is an important safeguard to ensure observance of the rule of law. It introduces clarity, checks the introduction of extraneous or irrelevant considerations and minimizes arbitrariness in the decision making process. Another reason which makes it imperative for the quasi-judicial authorities to give reasons is that their orders are not only subject to the right of the aggrieved persons to challenge the same by filing statutory appeal and revision but also by filing writ petition under Article 226 of the Constitution. Such decisions can also be challenged by way of appeal under Article 136 of the Constitution of India. The High Courts have the power to issue writ of certiorari to quash the orders passed by a quasi-judicial authority/Tribunal. Likewise, in appeal, the Supreme Court can nullify such order/decision. These powers can be effectively exercised by the superior courts only if the order under challenge contains reasons.”
In the case of Anusayaben A. Doshi & Others vs Joint CIT & Ors, 256 ITR 685, the Hon’ble Bombay High Court observed as under :—
“It is needless to emphasize that the order or judgment should be self explanatory. It should not keep the higher Court guessing for reasons. Reasons provide a live link between conclusions and evidence. That vital link is the safeguard against arbitrariness, passion and prejudice. Reason is a manifestation of the mind of the Court or Tribunal. It is a tool for judging the validity of the order. It gives an opportunity to the higher Court to see whether the impugned order is based on reasons and that the reasons are based on adequate legal and relevant material. Giving reasons is an essential element of administration of justice. A right to reasons is, therefore, an indispensable part of a sound system of judicial review. Reasoned decision is not only for the purpose of showing that the citizen is receiving justice, but also a valid discipline for the authority itself. Therefore, stating of reasons is one of the essentials of justice.”
In the leading case of M.P. Industries vs. Union of India, AIR 1966 (Supreme Court) 671 Hon’ble Justice Subbarao observed as under :
“In the context of a welfare state, administrative Tribunals have come to stay. Indeed, they are the necessary concomitants of a welfare State. But arbitrariness in their functioning destroys the concept of a welfare state itself. Self-discipline and supervision exclude or at any rate minimize arbitrariness. The least a Tribunal can do is to disclose its mind. The compulsion of disclosure guarantees consideration. The condition to give reasons introduces clarity and excludes or at any rate minimizes arbitrariness; it gives satisfaction to the party against whom the order is made; and it also enables an appellate or supervisory Court to keep the Tribunals within bounds. A reasoned order is the desirable condition of judicial disposal”.
Writing of judgment is an art. To some, it is a natural gift while for many it needs to be cultivated. The first requisite is a good command over the language in which the judgment is written. Howsoever, correct a judgment may be on law and facts, it does not make a good impression while it is couched in poor language. On the contrary, a poor judgment written in impressive language is lauded by many of course by people who do not understand law. Language is a medium for conveying one’s thoughts and it is essential that they should be conveyed in a manner which is lucid as well as impressive. The language should, however, be simple. Bombastic or flowery words and expressions, even though literary should be avoided. The test is that a person well-versed in law should not ordinarily be required to consult a dictionary.
Judgment is not a piece of literature to be written in the style of Shakespeare or Milton. It is an essay or a composition intended to convey to a lawyer of average ability the reasons of the Judge for arriving at certain conclusions of facts and law and the principles underlying the relevant statutory provisions or the judicial decisions on which the decision is based. In short, the language should be simple, yet elegant, containing phrases and expressions which convey with lucidity the legal ideas to the reader. The legal terms, expressions and Latin maxims which are well-known may, however, be freely used because the primary object of the judgment is to indicate clearly the mind of the Judge both on law and facts. The language should not be equivocal, vague or susceptible of diverse interpretations. If we care to read the judgments of the Privy Council and the House of Lords, we would be impressed by the method in which difficult and complex legal problems are dealt with in simple language.
Judgments are not novels or dramatic works so as to bring out the various aspects of human psychology in minute details leading to an emotional climax. They should be just cut and dried statements of facts and law, interwoven in logic, in order to get at the truth, but no material fact should be omitted. There may be a generalization here or there with a literary flourish but that is all. Judgment demands discipline in the use of words and expressions; one should not say either more or less than what is strictly necessary and that too with precision.
Brevity – Soul of Good Judgment
It is necessary to avoid repetition of facts and law in the judgment. Brevity is the soul of a good judgment while prolixity is a vice. But brevity must not be at the cost of clarity. A good judgment should not contain unnecessary citations of precedents. Even long quotations from the precedents should be avoided. Only the relevant and most striking passages from a precedent should be picked up in order to support the point for decision.
Normally the judgment should notice every argument at the Bar but a Bench is not bound to notice each and every argument if it is entirely irrelevant and beside the point. Such arguments may be briefly mentioned and summarily rejected as either irrelevant or not in point.
Ratio Decidendi: Binding Precedents
As the judgments of the superior courts are binding on the subordinate courts, their ratio should be clearly indicated and where a particular point merits elaborate discussion of various authorities the conclusion of the Bench should be indicated at the end in very precise terms.
In the case of CIT vs. Sun Engineering Works P. Ltd (1992) 198 ITR 297 @299 the Hon’ble Supreme Court laid down the following principle of law:
“It is neither desirable nor permissible to pick out a word or a sentence from the judgment of the Supreme Court divorced from the context of the question under consideration and treated to be the complete law declared by the Court. The judgment must be read as a whole and the observations from the judgment have to be considered in the light of the questions which were before the Court. A decision of the Supreme Court takes its colour from the questions involved in the case in which it is rendered and while applying the decision to a later case, courts must carefully try to ascertain the true principle laid down by the decision.”
In the case of CIT vs. Thane Electricity Supply Ltd., 206 ITR 727, their Lordship of the Bombay High Court laid down the following general principles with regard to precedents:
(a) The law declared by the Supreme Court being binding on all courts in India, the decisions of the Supreme Court are binding on all courts, except, however, the Supreme Court itself which is free to review the same and depart from its earlier opinion if the situation so warrants. What is binding is, of course, the ratio of the decision and not every expression found therein.
(b) The decisions of the High Court are binding on the subordinate courts and authorities or Tribunals under its superintendence throughout the territories in relation to which it exercises jurisdiction. It does not extend beyond its territorial jurisdiction.
(c) The position in regard to the binding nature of the decisions of a High Court on different Benches of the same court may be summed up as follows:
(i) A single judge of a High Court is bound by the decision of another single judge or a Division Bench of the same High Court. It would be judicial impropriety to ignore that decision, judicial comity demands that a binding decision to which his attention had been drawn should neither be ignored nor overlooked.
(ii) A Division Bench of a High Court should follow the decision of another Division Bench of equal strength or a Full Bench of the same High Court. If one Division Bench differs from another Division Bench of the same High Court, it should refer the case to a larger Bench.
(i) Where there are conflicting decisions of courts of co-ordinate jurisdiction, the later decision is to be preferred if reached after full consideration of the earlier decisions.
(a) The decision of one High Court is neither binding precedent for another High Court nor for courts or Tribunal outside its territorial jurisdiction.
In the case of Kunahayammed & Others vs. State of Kerala and Another, (2000) 245 ITR 360, their Lordships of the Supreme Court laid down the following principle of law relating to the precedents.
“The jurisdiction conferred by Article 136 is divisible into two stages; the first stage is up to the disposal of the prayer for special leave to appeal; the second stage commences if and when the leave to appeal is granted and the petition for special leave to appeal is converted into an appeal.”
While hearing the petition for special leave to appeal, the Supreme Court is called upon to see whether the petitioner should be granted such leave or not. While hearing such petition, the Supreme Court does not exercise its appellate jurisdiction; it merely exercises its discretionary jurisdiction to grant or not to grant leave to appeal.
If the petition seeking grant of special leave is dismissed, it is an expression of opinion by the Supreme Court that a case for invoking the appellate jurisdiction of the court was not made out.
An order refusing special leave to appeal may be by a non-speaking order or by a speaking order. In either case, it does not attract the doctrine of merger. An order refusing special leave to appeal does not stand substituted in the place of the order under challenge. All that it means is that the Supreme Court was not inclined to exercise its discretion so as to allow the appeal being filed. Whatever be the phraseology employed in the order of dismissal, if it is a non-speaking order; i.e., it does not assign reason for dismissing the special leave petition, it would neither attract the doctrine or merger so as to stand substituted in the place of the order put in issue before it, nor be a declaration of law by the Supreme Court under Article 141 of the Constitution for there is no law which has been declared.
If the order refusing special leave to appeal is a speaking order; i.e., it gives reasons for refusing the grant of leave, then the order has two implications. Firstly, the statement of law contained in the order is a declaration of law by the Supreme Court within the meaning of Article 141 which will obviously be binding on all Courts and Tribunals in India and certainly the parties thereto. Secondly, other than the declaration of law, whatever is stated in the order or the findings recorded by the Supreme Court which would be binding on the parties and the Court, Tribunal or authority whose order was under challenge, in any proceedings subsequent thereto on the principle of judicial discipline, the Supreme Court being the Apex Court of the country. The declaration of law will be governed by Article 141 but the case not being one, where leave is granted, the doctrine of merger does not apply.
The Supreme Court may apply its mind to the merit worthiness of the petitioner’s prayer seeking leave to appeal and having formed an opinion may say “dismissed on the merits”. Such an order may be passed even in the absence of the opposite party. The dismissal would remain a dismissal by a non-speaking order where no reasons have been assigned and no law has been declared by the Supreme Court. The dismissal is not of the appeal but of the petition for special leave to appeal. Even if the merits have been gone into, they are the merits of the special leave petition only. Neither the doctrine of merger nor Article 141 is attracted to such an order.”
In the case of CJT vs. Aruna Bai Hargovind A.S. Patel (2003) 179 CTR 420 (Guj) it was held;
“If views of Supreme Court expressed in earlier decision are explained in a subsequent decision, the explanation in subsequent decision will have to be followed even if subsequent decision is rendered by a smaller Bench of the Supreme Court.”
Not following earlier orders of Co-ordinate Benches
The Bombay High Court in the case of ICICI vs. D. D. Ruparelia (2000) 99 Com. Cases 181 @ 185 held that to be a ratio decidendi amongst others, the minimum requirements are:—
1. That the matter was directly in issue.
2. That the issue needs to have been decided, and
3. That the matter has been decided by giving reasons.
In the case of Blue Star Ltd vs. CIT, 217 ITR 514 at page 520, their Lordships of Bombay High Court held,
“Though Mr. Mistri has relied upon judgments referred to above, as observed by the Earl of Halsbury L C in the case of Quimm vs. Leathem (1901) AC 495 (HL) every judgment must be read as applicable to the particular facts proved or assumed to be proved, since the generality of the expression which may be found there or not intended to be expositioned of the whole law, but governed and qualified by the particular facts of the case in which such expressions are found and a case is only an authority for what is actually decides.”
In Ambika Prasad Mishra vs. State of U.P. AIR 1980 (SC) 1762, the Supreme Court held; “Every new discovery or argumentative novelty, cannot undue or compel consideration of a bindingprecedent. A decision does not lose its authority merely because it was badly argued, inadequately considered or fallaciously decided.”
In the case of Eknath Mukkawar vs. State of Maharashtra AIR 1977 (SC) 1177, the Supreme Court held that it is open to the subsequent Division Bench to differ from the decision of the earlier Bench but in that case the only judicial alternative is to refer to a larger Bench and not to dispose of the matter by taking a contrary view.