- By Justice Sunil Ambwani,
Allahabad High Court, Allahabad
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
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
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
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 advocates.
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
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
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.
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
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
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
29. The chief guidelines for using
plain language are:
Achieve a reasonable
average sentence length.
Prefer short words to
long ones, simple to fancy. Minimise jargon and technical terms.
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.
Prefer the active
voice; single very-object-sentence. Notice must be given
compares poorly with the landlord must give notice.
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.
Keep related words
together, specially subject and very, verb and object.
Break up the text
with headings and subheadings.
structures for enumerations.
Avoid excessive cross
references, which create linguistic mazes.
Avoid over defining.
Use recitals and
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
That less can be more is specially 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’.
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.
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
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
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:
wrong in saying ………..
not correct in saying ……’
plaintiff’s case is full of falsehood………
Between the two I prefer
the evidence of
not believe him……
not worthy of belief……….’
witness is not telling the truth……..
witness is one step removed from being a honest man……’
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.
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.
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.