The Art of Writing Judgments

Passion

Although logic is an important part of a good judgment, passion cannot sometimes be wholly excluded but it must be the judicial passion with a clear flame and with as little smoke as possible.

Strictures

Some Judges while reversing the judgments of the subordinate court readily assume that the Judge acted under improper motives and pass strictures on him. This is not fair. In cases where evidence is evenly balanced, different Judges may be inclined to come to different conclusion on appreciation of the entire evidence. But merely because the finding of a subordinate court does not appear to be correct to a superior court or its approach appears to be erroneous, it would not be proper to impute improper motives to the Judge of the subordinate court while reversing his decision. A Judge does not mind if his decision is upset by a superior court but he feels distressed if his motives are questioned and it is also not in the interests of administration of justice because it is likely to shake the confidence of the litigant public in the impartiality of the Judge. It would be pertinent in this connection to refer to the following observations of their Lordships of the Supreme Court in Ishwari Prasad Misra vs. Mohammad Isa, AIR 1963 SC 1728 (1736) while reversing the decision of the High Court which had passed severe strictures against the Judge of the lower court :—

“We are constrained to observe that the High Court was not justified in passing these strictures against the trial Judge in dealing with the present case. Judicial experience shows that in adjudicating upon the rival claims brought before the courts it is not always easy to decide where truth lies. Evidence is adduced by the respective parties in support of their conflicting contentions and circumstances are similarly pressed into service. In such a case, it is no doubt the duty of the Judge to consider the evidence objectively and dispassionately, examine it in the light of probabilities and decide which way the truth lies. The impression formed by the Judge about thecharacter of the evidence will ultimately determine the conclusion which he reaches. But it would be unsafe to overlook the fact that all judicial minds may not react in the same way to the said evidence and it is not unusual that evidence which appears to be respectable and trustworthy to one Judge may not appear to be respectable and trustworthy to another Judge. That explains why in some cases courts of appeal reverse conclusions of facts recorded by the trial Court on its appreciation of oral evidence. The knowledge that another view is possible on the evidence adduced in a case, acts as a sobering factor and leads to the use of temperate language in recording judicial conclusions. Judicial approach in such cases should always be based on the consciousness that one may make a mistake; that is why the use of unduly strong words in expressing conclusions or the adoption of unduly strong intemperate, or extravagant criticism, against the contrary view, which are often found on a sense of infallibility should always be avoided.”

The Hon’ble Supreme Court in the case of S.K. Viswambaran vs. E. Koya Kanuja, AIR 1987 SC 1436 laid down the following principle :—

It has been judicially recognized that in the matter of making disparaging remarks against persons or authorities whose conduct comes into consideration before court of law in cases to be decided by them, it is relevant to consider: —

(a) Whether the party whose conduct in question is before the court has an opportunity of explaining/defending himself;

(b) Whether there is evidence on record bearing on that conduct justifying remarks and;

(c) Whether it is necessary for the decision of the case as an integral part thereof, to inadvert on that conduct. It has also been recognized that judicial pronouncements must be judicial in nature and should not normally depart from sobriety, moderation and reserve.

Judgment should be free from Obstinacy and Bias

In writing a judgment it is necessary for a Judge/Member to observe the principles of natural justice. I may refer to some of the relevant principles of natural justice for writing a judgment.

Principles of natural justice.

Principles of natural justice are sole of an administration of justice and need to be adhered to in order to make the order just and fair. Natural justice is an important concept in administrative law. In the words of Megarry J. in the case of John vs. Rees (1969) 2 (AII) ER 274, “it is justice that is simple and elementary, as distinct from justice that is complex, sophisticated and technical.” The principles of natural justice or fundamental rules of procedure for administrative action are neither fixed nor prescribed in any code. They are better known than described and earlier proclaimed than defined. Natural justice has meant many things to many writers, lawyers and systems of law. It has many colours and shades and many forms and shapes. According to DE Smith in judicial review of administrative action 1995 P 378 the term natural justice expresses the close relationship between the common law and moral principles and it has an impressive ancestry. It is also known as substantial justice, fundamental justice, universal justice or fair play in action. It is a great humanizing principles intended to invest law with fairness to secure justice and to prevent miscarriage of justice.

In Wisemen vs. V. Vorneman (1971) AC 297, it is observed:—

“The conception of natural justice should at all stages guide those who discharge judicial function is not merely an acceptable but is an essential part of the philosophy of the law.”

It was held in the case of A. K. Karaipak vs. Union of India AIR 1970 SC 150 that the principle of natural justice is based on three maxims as under:— i) No man shall be a Judge of his own cause. Deciding authority should be impartial and without bias. ii) Justice should not only be done but manifestly and undoubtedly be seen to be done, and iii) Judges like Caesar’s wife should be above suspicion.

Audi Alteram Partem :—

No man should be condemned unheard. Both sides must be heard. There must be fairness on the part of the deciding authority.

There are three types of bias:— i) Pecuniary bias ii) Personal bias and iii) Official bias or bias to subject matter.

Pecuniary bias —

It is well settled that as regard pecuniary interest the least pecuniary interest in the subject matter of litigation will disqualify any person from acting as a Judge. A pecuniary interest however slight will disqualify even though it is not proved that the decision in any way affected.

Personal bias —

The second type of bias is a personal one. A number of circumstances may give rise to personal bias. Here a Judge may be a relative; a friend or business associate of a party. He may have some personal grudge, enmity or grievances or professional rivalry against such party. In view of these factors, there is every likelihood that the Judge may be bias towards one party or prejudiced towards the other.

Official bias —

The third type bias is official bias or bias as to the subject matter. This arise when the Judge has a general interest in the subject matter. In the case of Manak Lal vs Dr. Prem Chand AIR 1957 SC 425, the Hon’ble Supreme Court laid down the test of bias in the following words :—

“In such cases the test is not whether in fact a bias is affect the judgment; the test always is and must be whether a litigant could reasonably apprehend that a bias attributable to a member of a Tribunal might have operated against him in the final decision of the Tribunal.”

In the case of Ranjit Thakur vs Union of India (1987) 4 SCC 611, the Hon’ble Supreme Court laid down the following test relating to the bias:—

“As to the test of likelihood of bias, what is relevant is reasonableness of the apprehension in that regard in the mind of the party. The correct approach for the Judge is not to look at his own mind and ask himself, however honestly “Am I bias?” but to look at the mind of the party before him.”

It is well understood that the basic ingredient of justice is that it must manifestly and undoubtedly be seen to be done. In the case of Ajit Kumar Sengupta, their Lordships of the Supreme Court had to remind us of this principle once again:—

“Whether judicial obstinacy can be treated as a form of bias …..” At the outset one may outrightly feel that “obstinacy” and “bias” must remain out of the judicial minds and if the two happen to go together, one can expect only judicial anarchy.”

Their Lordships further observed:

“One of the requirements of Natural Justice is that the hearing should be done by a judge with an unbiased mind. “Bias” may be defined as a pre-conceived opinion or a pre-disposition or pre-determination to decide a case or an issue in a particular manner, so much so that such pre-disposition does not leave the mind open to conviction.”

Thus, bias is a condition of mind, which sways judgments and renders the judge unable to exercise impartiality in a particular case. It can be a pecuniary bias, personal bias, bias as to subject matter in dispute, or policy bias.

May be it is for this reason some judges who hail from the old school of thought still prefer that a judge should shun newspapers before coming to the court where he may have to deal with a case already appeared in the morning headlines. It may prejudice his mind or to say it may cause prejudging the issue. In either of the cases, the hearing may be “biased” not necessarily against the accused.

That may be the reason that publication of stories related to the ongoing legal proceedings are termed as “trial” by media. It is not suggested that the judicial mind is ever influenced by such reports but nevertheless it has been made a ground for shunning the press out of the courts.

But in the instant case of Ajit Kumar Sengupta, the court dealt with what it described as “a new form of bias, namely bias on account of judicial obstinacy.”

Admittedly, judges are not infallible. As human beings they can commit mistakes. Even the best of their judgments reflect their hard work, impartial thinking and objective assessment. Then there is an enabling mechanism through which, it is believed, a mistake committed in a judicial order is corrected through revision by a larger bench.

But, if a judgment is overruled by the higher court, the judicial discipline requires that the judge whose judgment is overruled must submit to that verdict. He cannot, in the same proceedings or in a collateral proceedings between the same parties, rewrite the overruled judgment.

The judge may have his occasion to reiterate his dogmatic views on a particular question of law but not in the same case. “If it is done, it would be exhibitive of his bias in his own favour to satisfy his egoistic judicial obstinacy”, the judges have stressed.

In other words, judicial discipline demands that a judge must be impartial and neutral and be in a position to apply his mind objectively to the facts in the case before him. If he is pre-disposed or suffers from prejudices or has a biased mind, he disqualifies himself from acting as a judge, the judgment adds. The judgment is equally good for any organ of the state which is not infallible in character.

In order to make a good judgment, it is necessary to keep in mind that one has to be open minded, decisive, bright and intelligent, reading papers in advance, picking up what is said in the court very quickly, getting to the bottom of the case and producing an interesting and succinct judgment quickly and come to the grips of the matter.

It is also necessary to keep in mind that a good judgment is the joint effort of bar and the bench. The aim of the bar and Bench is to deliver justice. The bar and the bench have to work together as two wheels of justice. If there is synchronization of the two wheels of justice, there would be smooth run of the vehicle of justice. The judgments are undoubtedly the most important part of the administration of justice and deserve the highest respect. Members listen to arguments everyday. In my view, it is also necessary to spare some time to listen to assessment of our functioning in the mind of litigants. A compliment paid to a good judge/Member is when you left his court you never felt that injustice had been done and if you lost you never felt that you were cheated. There is no greater compliment than this a judge/Member can aspire for. However, I would hasten to add here that do not listen to those who compliment us only to please our ego for apparent reasons.

“Personal emotions of a judicial officer has no place in the judgment he writes while dealing with various cases.” The Delhi High Court has laid down certain guideline on this aspect in judgment writing. I quote:—

“Emotions have no place in a judgment which has to be based on facts as presented by parties and the evidence, oral or documentary. There should never be any display of emotions or sentiments in the judgment,” the bench said.

The court further said,

“a judge neither rewards virtue nor chastises vice. He only administers even-handed justice between man and man and between a citizen and the State. This cardinal principle should always be remembered while constructing a judgment or the order. The judgment should ordinarily contain statement of facts, points in dispute, findings on points in dispute on the basis of evidence and documents and reasons for granting or refusing order/relief”.

“Anything which directly or indirectly aggravates the emotion definitely induces an element of perversity,” the bench said.

The court should abstain from harsh or ungenerous criticism of measures taken in good faith by those who bear the responsibility of the Government, it said.

The bench said a judgment must be calm and balanced and neither it should show prejudice nor sympathy and advised the judicial officers that “sheer length of judgment and its physical weight is not the index of its quality.” “The quality depends on the presentation of facts, discussion of the issues of both facts and law and the quality of the reasons”, the bench added.

The personal philosophy and personal preferences should not be pronounced in the judgment, which would invite levelling of the judge as pro-landlord or pro-tenant, pro-revenue or anti revenue, pro-labour or pro-management etc., the order said.

“The judicial officers are human beings and their family background; education or environment may find reflection in their decision-making process. But over a period, the judge must detach himself from these fixations and decide cases strictly in accordance with law, equity and justice,” the bench said.

Resenting the high-flown language used in certain judgments, the division bench said, “The judgments are basically meant to be read and understood by laymen, not by scholars.”

Advising the judicial officers not to write long-winded judgments, the bench said, “Judgments should not be prolix or verbose. The prolix judgment is a torture to write and a torture to read.”

The court also advised the judicial officers not to play to the gallery by saying that “judicial officers should not acquire journalistic zeal or write something special for the press.”

The pen of the judges should be like the knife of a surgeon which probes into the flesh only as much as is absolutely necessary for the purpose of the case before it, the court said and added that “disparaging remarks which are not warranted by evidence against a person should never be made.”

“The language of judgment should be sober, dignified, restrained and temperate and in no case satirical or factitious. Judicial officers should refrain from being sarcastic in their judgments,” the bench said.

Appreciation of evidence

It requires a good deal of thought and mature consideration to arrive at a particular conclusion of fact after scrutinizing the evidence of both the parties. Every material document of either side should be considered, and so also every material part of the evidence should be considered and properly marshaled, indicating what value the judge/Member attaches to each and which part of the evidence he considers inconsequential or unreliable with reasons therefor.

From the earliest days, it has been one of the very important responsibilities of the Judges to ascertain the veracity of the evidence by various means in order to get at the truth. It is, therefore, necessary for the Judge/Member to be alert and vigilant while appreciating evidence.

In the case of CIT vs. Durga Prasad More (1971) 82 ITR 540, their Lordships of Hon’ble Supreme Court laid down the following principle of law :—

“Science has not yet invented any instrument to test the reliability of the evidence placed before a court of Tribunal. Therefore, the courts and Tribunals have to judge the evidence before them by applying the test of human probabilities. Human minds may differ as to the reliability of a piece of evidence.”

In the case of R. vs. Dy. Industrial Injuries Commissioner, Ex. Parte Moore (1965) 1 QB 456, the correct legal position has been enunciated by Diplock, J. as under:—

“The requirement that a person exercising quasi-judicial functions must base his decision on evidence means no more than it must be based upon material which tempts logically to show the existence or non existence of facts relevant to the issue to be determined, or to show the likelihood or unlikelihood of the occurrence of some future events the occurrence of which would be relevant. It means that he must not spin a coin or consult an astrologer, but that he must take into account any material which, as a matter of reason, has some probative value—. It it is capable of having any probative value, the weight to be attached to it is a matter for the person to whom Parliament has entrusted the responsibility of deciding the issue.”

Yet, as held by the Supreme Court in the case of Bareilly Electricity Co vs. Workman (1971) 2 SCC 617, this does not mean that Administrative Tribunal can decide a matter without any evidence on record or can act upon what is not evidence in the eye of law or on a document not proved to be a genuine one.

Speaking for the Court Ready J. observed “it is inconceivable that the Tribunal can act on what is not evidence such as hearsay, nor can it justify the Tribunal in basing its award on copies of documents when the originals which are in existence are not produced and proved by one of the methods either by affidavit or by witness who have executed them, if they are alive and can be produced.”

Decision on Questions of Law

While dealing with issues of law, it is not necessary to state the whole law on the subject commencing from elementary principles supported by numerous rulings. The discussion should be brief but pointed and should be supported by some important decisions. If there is a direct authority of the Supreme Court or of Jurisdictional High Court, it is unnecessary to encumber the judgment with other authorities.

Final order

After dealing with all the issues the final decision should be indicated in the concluding paragaph with suitable directions.

Having understood the basic features of ‘Writing of Judgment” we may have also to bear in mind that the judgment also reflects the personality of the Members writing the judgments. Therefore, it may not be out of place to refer in brief to some of the virtues of the Members to produce good Judgments.

Clarity

Before proceeding to write or dictate a judgment the mind should be clear about the conclusions of fact and law and the final order. One should not commence writing a judgment before making up his mind. An unduly prolix judgment, like the lengthy and rambling arguments of a counsel, is usually the product of a confused mind. It is best avoided.

Honesty

Honesty of purpose is the first essential requirement of a successful Member. He must be honest to the cause of justice. If he is not sincere enough in his effort, the result would be disastrous. A Member has got to be honest and sincere to the parties before him.

I am reminded of the writing of Francis Bacon in the Essays – of Judicature:—

“Judges ought to be more learned than witty, more reverend than plausible, and more advised than confident. Above all things, integrity is their portion and proper virtue.”

Courage

A Member must write the order fearlessly keeping in mind decency and decorum without being browbeaten or overawed by the overzealous arguments advanced before him. A Member must write the order to the best of his ability. A Member must be bold but his order should not express any indiscipline, bias or highhandedness. The reasons for reaching to the conclusion should be given to the best of one’s ability.

It will be relevant to refer to the famous observations of the Supreme Court in the case of Distributors (Baroda) P. Ltd. vs. Union of India 155 ITR 120 :—

“We have given our most anxious consideration to this question, particularly since one of us, namely P.N. Bhagwati J. was a party to the decision in Cloth Traders’ case. But having regard to the various considerations to which we shall advert in detail when we examine the arguments advanced on behalf of the parties, we are compelled to reach the conclusion that Cloth Traders’ case must be regarded as wrongly decided. The view taken in that case in regard to the construction of s. 80M must be held to be erroneous and it must be corrected. To perpetuate an error is no heroism. To rectify it is the compulsion of the judicial conscience. In this, we derive comfort and strength from the wise and inspiring words of Justice Bronson in Pierce vs. Delameter (A.M.Y. at page 18): “as judge ought to be wise enough to know that he is fallible and, therefore, ever ready to learn: great and honest enough to discard all mere pride of opinion and follow truth wherever it may lead: and courageous enough to acknowledge his errors”.

Hardwork

It is necessary to keep in mind that writing a good order requires hard work. There is a saying in Gujarati, “The sweetness of the food item depends upon the extent of Jaggery put therein.” A member must aspire to live like a hermit and work like a horse. The law is known to be a Jealous mistress – more attached one is to such a mistress better results are obtained in writing orders. “An inefficient but honest Judge is not of much use to the Society. But an efficient but dishonest one is positively dangerous.”

A Member has to develop the power of analysis and assessment. This is possible by hard work.

Wit and temperament in the court

As you know it is necessary to have sufficient material for writing a order. In order to collect good material for the order it is necessary to be patient and witty in the Court Room. One has to be careful in making remarks in the court. An eminent Barrister of Madras bar Mr. Nortan was arguing before an English Judge at the Madras high Court. Judge was short tempered and caustic in his remarks, After hearing Mr. Nortan for some time, the Judge observed that whatever Mr. Nortan was submitting entered his one ear and went out of the other. Mr. Nortan promptly responded by saying that it is bound to be so unless there was something in between to retain it.

The weapon of wit has therefore to be utilized with care and caution in the course of hearing of a case.

The Members should have an amiable temperament while writing a Judgment and conducting the Court.

In my perspective, the following are the formal parts of a judgment :—

1. Title

(a) Name of the Bench

(b) Name of the Members

2. Name of the parties

3. Name of the Advocates appearing for the parties

4. Heading – Order

5. Brief facts of the Case

6. Decision:

(a) Facts in brief containing contentions raised by the parties, background giving rise to dispute before the Bench.

(b) Fact in issue – points of disagreement between the parties – points to be determined by the Bench.

(c) Evaluation of issues of facts – discussion of evidence produced before the Authorities and Bench by the parties and evaluation with the help of contentions advanced by the representatives of the parties.

(d) Issues on law points. Mention or a citation of a relevant law or rule — rule of interpretation applied – reference of case law put forth by the advocates of the parties – ratio decidendi binding on the Bench.

(e) Operative order. Applicable law or facts proved – decision on facts in issue with reasons therefor – clear order to the parties.

(f) Costs of the case, if any.

(g) Date of pronouncement of the order.

(h) Signature of the Members.

In the end, I would again like to thank my Hon’ble President Shri Vimal Gandhi for providing me an opportunity to share some of my thoughts with my learned colleagues who have given me patient hearing.

Source: Speech delivered at programme for Orientation & Training of New Members, Income Tax Appellate Tribunal, Mumbai held from 12th November, 2007 to 28th November, 2007.

Acknowledgement: We are thankful to Hon’ble President, Vice President of ITAT, Mumbai for granting us permission to print the article for the benefit of Tax Professionals.