October 2, 2022

The art of judgment writing- According to Indian Supreme court

The supreme court expressed its views on the brevity and art of writing judgment while delivering the judgment in the case of ‘State bank of India v. Ajay Sood (2022)’. The case was related to termination of an employee of state bank of India by bank in a disciplinary proceeding.

While the case was before supreme court in appeal, the court also found the issue of difficult language used in judgment by the High court while affirming the judgment of central Government Industrial tribunal.

Language of Judgement

Speaking for the court, Justice D.Y. Chandrachud said,

“The judgment of the Division Bench of the High Court of Himachal Pradesh is incomprehensible. This Court in appeal found it difficult to navigate through the maze of incomprehensible language in the decision of the High Court. A litigant for whom the judgment is primarily meant would be placed in an even more difficult position.

Untrained in the law, the litigant is confronted with language which is not heard, written or spoken in contemporary expression. Language of the kind in a judgment defeats the purpose of judicial writing. Judgment writing of the genre before us in appeal detracts from the efficacy of the judicial process. The purpose of judicial writing is not to confuse or confound the reader behind the veneer of complex language.

Brevity in Judgment

The judge must write to provide an easy-to-understand analysis of the issues of law and fact which arise for decision. Judgments are primarily meant for those whose cases are decided by judges. Judgments of the High Courts and the Supreme Court also serve as precedents to guide future benches. A judgment must make sense to those whose lives and affairs are affected by the outcome of the case. While a judgment is read by those as well who have training in the law, they do not represent the entire universe of discourse.

Confidence in the judicial process is predicated on the trust which its written word generates. If the meaning of the written word is lost in language, the ability of the adjudicator to retain the trust of the reader is severely eroded.”

The content of the judgment

The court referred the decision of Shakuntala Shukla v. State of Uttar Pradesh[1], in which case also, the supreme court found it difficult to discern between statement of counsel and reason of court. Therefore, in that case, the supreme court elaborated on what should be the content of the judgment. According the court,

Meaning and definition of Judgement

“Judgment” means a judicial opinion which tells the story of the case; what the case is about; how the court is resolving the case and why.

“Judgment” is defined as any decision given by a court on a question or questions or issue between the parties to a proceeding properly before court.

It is also defined as the decision or the sentence of a court in a legal proceeding along with the reasoning of a judge which leads him to his decision.

Purpose of a Judgment

The term “judgment” is loosely used as judicial opinion or decision. Roslyn Atkinson, J., Supreme Court of Queensland, in her speech once stated that there are four purposes for any judgment that is written:

i) to spell out judges own thoughts;

ii) to explain your decision to the parties;

iii) to communicate the reasons for the decision to the public; and

iv) to provide reasons for an appeal court to consider.

It is not adequate that a decision is accurate, it must also be reasonable, logical and easily comprehensible. What the court says, and how it says it, is equally important as what the court decides.

Element of Judgment

Every judgment contains four basic elements and they are

(i) statement of material (relevant) facts,

(ii) legal issues or questions,

(iii) deliberation to reach at decision and

(iv) the ratio or conclusive decision.

A judgment should be coherent, systematic and logically organised. It should enable the reader to trace the fact to a logical conclusion on the basis of legal principles. It is pertinent to examine the important elements in a judgment in order to fully understand the art of reading a judgment.

In the Path of Law, Holmes J. has stressed the insentient factors that persuade a judge. A judgment has to formulate findings of fact, it has to decide what the relevant principles of law are, and it has to apply those legal principles to the facts.

The important elements of a judgment are:

i) Caption

ii) Case number and citation

iii) Facts

iv) Issues

v) Summary of arguments by both the parties

 vi) Application of law

vii) Final conclusive verdict.

The care and caution while writing the judgment

The judgment replicates the individuality of the judge and therefore it is indispensable that it should be written with care and caution.

  • The reasoning in the judgment should be intelligible and logical.
  • Clarity and precision should be the goal.
  • All conclusions should be supported by reasons duly recorded.
  • The findings and directions should be precise and specific.

The art of writing a judgment

Writing judgments is an art, though it involves skilful application of law and logic. We are conscious of the fact that the judges may be overburdened with the pending cases and the arrears, but at the same time, quality can never be sacrificed for quantity. Unless judgment is not in a precise manner, it would not have a sweeping impact. There are some judgments that eventually get overruled because of lack of clarity.

Therefore, whenever a judgment is written,

  • it should have clarity on facts;
  • on submissions made on behalf of the rival parties;
  • discussion on law points and
  • thereafter reasoning and
  • thereafter the ultimate conclusion and the findings and thereafter the operative portion of the order.

There must be a clarity on the final relief granted. A party to the litigation must know what actually he has got by way of final relief. The aforesaid aspects are to be borne in mind while writing the judgment, which would reduce the burden of the appellate court too.

We have come across many judgments which lack clarity on facts, reasoning and the findings and many a times it is very difficult to appreciate what the learned judge wants to convey through the judgment and because of that, matters are required to be remanded for fresh consideration. Therefore, it is desirable that the judgment should have a clarity, both on facts and law and on submissions, findings, reasoning and the ultimate relief granted.”

The ideal writing of a Judgment

While referring lord burrows, the court highlighted the current problem of judgment writing. As lord burrows said,

“Many judgments do decide complex questions of law and of fact. Brevity is an unwitting victim of an overburdened judiciary. It is also becoming a victim of the cut copy-paste convenience afforded by software developers. This Court has been providing headings and sub-headings to assist the reader in providing a structured sequence. Introduced and popularized in judgment writing by Lord Denning, this development has been replicated across jurisdictions.”

Further, while writing on ideal judgement writing, the court referred Lord Neuberger, the former President of the Supreme Court of the United Kingdom, who discussed in the course of a lecture the importance of clearly written judgments:

“A second small change worth considering would be for more judges to give better guidance to the structure and contents of their longer Judgments. Some judges already provide a clear framework, sometimes with a table of contents, a roadmap, at the beginning, and often with appropriate headings, signposts, throughout the Judgment. Kimble’s study confirms that this is not just a good discipline but it is what the legal professional readers want, and, if it is what lawyers want, it is a fortiori what non-lawyers will want. A clear structure aids accessibility.”

After referring above views, the apex court further elaborated the structure of ideal judgment. when it said,

  • “It is also useful for all judgments to carry paragraph numbers as it allows for ease of reference and enhances the structure, improving the readability and accessibility of the judgments.
  •  A Table of Contents in a longer version assists access to the reader.  
  • On the note of accessibility, the importance of making judgments accessible to persons from all sections of society, especially persons with disability needs emphasis.
  • All judicial institutions must ensure that the judgments and orders being published by them do not carry improperly placed watermarks as they end up making the documents inaccessible for persons with visual disability who use screen readers to access them.
  • On the same note, courts and tribunals must also ensure that the version of the judgments and orders uploaded is accessible and signed using digital signatures.
  • They should not be scanned versions of printed copies. The practice of printing and scanning documents is a futile and time-consuming process which does not serve any purpose. The practice should be eradicated from the litigation process as it tends to make documents as well as the process inaccessible for an entire gamut of citizens.

Structuring of Judgement

In terms of structuring judgments, it would be beneficial for courts to structure them in a manner such that the ‘Issue, Rule, Application and Conclusion’ are easily identifiable. The well-renowned ‘IRAC’ method generally followed for analysing cases and structuring submissions can also benefit judgments when it is complemented by recording the facts and submissions.

  • The “Issue” refers to the question of law that the court is deciding. A court may be dealing with multiple issues in the same judgment. Identifying these issues clearly helps structure the judgment and provides clarity for the reader on the specific issue of law being decided in a particular segment of a judgment.
  • The ‘Rule’ refers to the portion of the judgment which distils the submissions of counsel on the applicable law and doctrine for the issue identified. This rule is applied to the facts of the case in which the issue has arisen.
  • The analysis recording the reasoning of a court forms the ‘Application’ section.
  • Finally, it is always useful for a court to summarize and lay out the ‘Conclusion’ on the basis of its determination of the application of the rule to the issue along with the decision vis-à-vis the specific facts.

This allows stakeholders, especially members of the bar as well as judges relying upon the case in the future, to concisely understand the holding of the case.

Individual style of judgment writing

At the end, the court noted that some judges have their own individual style of judgment writing. The expression of a judge is an unfolding of the recesses of the mind. However, while recesses of the mind may be inscrutable, the reasoning in judgment cannot be. While judges may have their own style of judgment writing, they must ensure lucidity in writing across these styles. This has also been captured by Justice Corbett, in the following extract:

“For lucidity should be the prime aim of any judgment-writer. At the same time, certain aspects of style have a bearing on lucidity. In this connection, my advice (for what it is worth) is to keep your language and your sentence construction simple. Write in short sentences and do not try to pack too many ideas into a single sentence. Particularly in setting out facts, try to maintain a simple, straightforward flow to your narrative. Try to avoid the repetition of words or phrases and observe the normal rules of grammar. A well-known exponent of simple language and the simple sentence was Lord Denning.”

Echoing a similar sentiment, Justice Michael Kirby, a distinguished former judge of the High Court of Australia notes:

“Brevity, simplicity and clarity. These are the hallmarks of good judgment writing. But the greatest of these is clarity.”

Reference

State bank of India v. Ajay Sood (2022)


[1] (2021) SCC OnLine SC 672