In the recent case of ‘State Bank of India v. Ajay Sood (2022)’, The Supreme Court while remitting the case back to High Court Himachal Pradesh, said that-

“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. 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.”

In Shakuntala Shukla v. State of Uttar Pradesh[1] as well, a two Judge Bench of this Court, was faced with an order of the High Court of Judicature at Allahabad which made it difficult to discern between the submissions of counsel and the reasons of the court. Laying emphasis on the purpose of a judgment, the Court elaborated on what should be the content of a judgment. The court observed that:

33. […] “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. 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.

34. 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.

35. 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.

36. 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. Writing judgments is an art, though it involves skillful 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 Court in ‘Ajay Sood’ case, further said that:

Amidst an overburdened judicial docket, a view is sometimes voiced that parties are concerned with the outcome and little else. This view proceeds on the basis that parties value the outcome and not the reasoning which constitutes the foundation. This view undervalues the importance of the judicial function and of the reasons which are critical to it. The work of a judge cannot be reduced to a statistic about the disposal of a case. Every judgment is an incremental step towards consolidation and change.

In adhering to precedent, the judgment reflects a commitment to protecting legal principle. This imparts certainty to the law. Each judgment is hence a brick in the consolidation of the fundamental precepts on which a legal order is based. But in incremental steps a judgment addresses the need to evolve and to transform by addressing critical issues which confront human existence. Courts are as much engaged in the slow yet not so silent process of bringing about a social transformation. How good or deficient they are in that quest is tested by the quality of the reasons as much as by the manner in which the judicial process is structured.

Lord Burrows of the Supreme Court of the United Kingdom, in his speech at the Annual Conference of Judges of the Superior Courts in Ireland stressed upon the importance of clarity, coherence and conciseness in judgment writing.

Lord Burrows also noted the importance of the judgment being written in a manner that it is accessible to all considering its wide and varied potential audience. He noted[2]:

“For senior judges, one’s target audience must include the parties themselves, the legal advisers to those parties, other judges, other practising lawyers, academic lawyers and students, and last but by no means least the public at large.”

Lord Burrows also reiterates the view of Lord Bingham, that a judgment which is unclear or not concise and therefore inaccessible may contradict the rule of law:

“(T)here is the view that a judgment that is unclear or not concise and therefore inaccessible may contradict the rule of law. The great Lord Bingham – a master of judgment-writing if ever there was one – suggested this in his book, The Rule of Law. Having laid down as his first concretised element of the rule of law that the law must be accessible”

he went on as follows:

“The judges are quite ready to criticise the obscurity and complexity of legislation. But those who live in glass houses are ill-advised to throw stones. The length, elaboration and prolixity of some common law judgments… can in themselves have the effect of making the law to some extent inaccessible.”

In a piece of academic writing, Justice Daphne Barak-Erez of the Supreme Court of Israel distinguished between academic writing and judgment writing. While alluding to the importance of judgments being written in an accessible manner,[3] Justice Daphne Barak-Erez notes:

“For judges, the professional community is only one of their several audiences. Judges write first and foremost for the parties appearing before them, for the state’s agents who are in charge of enforcement, and for the public. Although judgments are professional legal documents, and sometimes involve complex technical and legal analyses, they should also be accessible, or at least explicable, to people who are not professionals, as they define the law for a larger community.”

A judgment culminates in a conclusion. But its content represents the basis for the conclusion. A judgment is hence a manifestation of reason. The reasons provide the basis of the view which the decision maker has espoused, of the balances which have been drawn. That is why reasons are crucial to the legitimacy of a judge’s work. They provide an insight into judicial analysis, explaining to the reader why what is written has been written. The reasons, as much as the final conclusion, are open to scrutiny. A judgment is written primarily for the parties in a forensic contest.

The scrutiny is first and foremost by the person for whom the decision is meant – the conflicting parties before the court. At a secondary level, reasons furnish the basis for challenging a judicial outcome in a higher forum. The validity of the decision is tested by the underlying content and reasons. But there is more. Equally significant is the fact that a judgment speaks to the present and to the future. Judicial outcomes taken singularly or in combination have an impact upon human lives. Hence, a judgment is amenable to wider critique and scrutiny, going beyond the immediate contest in a courtroom.

Citizens, researchers and journalists continuously evaluate the work of courts as public institutions committed to governance under law. Judgment writing is hence a critical instrument in fostering the rule of law and in curbing rule by the law.

Judgment writing is a layered exercise. In one layer, a judgment addresses the concerns and arguments of parties to a forensic contest. In another layer, a judgment addresses stake-holders beyond the conflict. It speaks to those in society who are impacted by the discourse. In the layered formulation of analysis, a judgment speaks to the present and to the future. Whether or not the writer of a judgment envisions it, the written product remains for the future, representing another incremental step in societal dialogue.

If a judgment does not measure up, it can be critiqued and criticized. Behind the layers of reason is the vision of the adjudicator over the values which a just society must embody and defend. In a constitutional framework, these values have to be grounded in the Constitution. The reasons which a judge furnishes provides a window – an insight – into the work of the court in espousing these values as an integral element of the judicial function.

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.

Lord Neuberger, the former President of the Supreme Court of the United Kingdom, discussed in the course of a lecture[4] 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.”

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.

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 analyzing 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.

Justice M.M. Corbett, Former Chief Justice of the Supreme Court of South Africa, in a lecture at an orientation course for new judges,[5] recommended a similar structure which facilitates orderliness and produces a logical, flowing judgment:

(a) An introductory section;

(b) Setting out of the facts:

(c) The law and the issues;

(d) Applying the law to the facts;

(e) Determining the relief (including order for costs); and

(f) Finally, the order of the Court.

Incoherent judgments have a serious impact upon the dignity of our institutions. 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:[6]

“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. UOI (2022)

[1] (2021) SCC OnLine SC 672

[2] Lord Burrows, Justice of the Supreme Court of the United Kingdom, Judgment-Writing: A Personal Perspective, Annual Conference of Judges of the Superior Courts in Ireland, 20 May 2021

[3] Justice Daphne Barak-Erez, Writing Law: Reflections on Judicial Decisions and Academic Scholarship, (2015) 41-

1 QUEEN’S LAW JOURNAL 255

[4]  Lord Neuberger, No Judgment – No Justice, First Annual British and Irish Legal Information Institute (BAILII) Lecture (20 November 2012)

[5] Justice M.M. Corbett, Writing a Judgment – Address at the First Orientation Course for New Judges, (1998) 115 SOUTH AFRICAN LAW JOURNAL 116

[6] Justice Michael Kirby, On the Writing of Judgments, (1990) 64 AUSTRALIAN LAW JOURNAL 69