THE ART OF WRITING JUDGMENT

- By Justice Sunil Ambwani,

Judge,

Allahabad High Court, Allahabad

1. A 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 decree.

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 the
decision.

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 utility.

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 advocates1. 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 decision.

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 recorded.

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.

18. The 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 judgment.

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 unacceptable way 2. 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 3. 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 judgment.

29. The chief guidelines for using plain language are:

(1) Achieve a reasonable average sentence

length.

(2) Prefer short words to long ones, simple to

fancy. Minimise jargon and technical terms.

(3) 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.

(4) Prefer the active voice; single very-

object-sentence. Notice must be given
compares poorly with the landlord must
give notice.

Passive Voice: 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.
 (5) Keep related words together, specially
subject and very, verb and object.

(6) Break up the text with headings and

subheadings.

(7) Use parallel structures for enumerations.

(8) Avoid excessive cross references, which

create linguistic mazes.

(9) Avoid over defining.

(10) Use recitals and purpose clauses4.

(11) 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 word.

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’.

31. The 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 rewriting5. 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.

32. The 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
written.

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 judgment.
34. 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:

‘He is wrong in saying ………..

He is not correct in saying ……’

“The plaintiff’s case is full of falsehood………

Between the two I prefer the evidence of

defendants…….’

‘I do not believe him……

He is not worthy of belief……….’

“The witness is not telling the truth……..

The witness is one step removed from being a honest

man……’

35. The 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.

“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 Judge6.”

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.

37. Diversity 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.

***

1
Hon. Justice Michael Kirby: ‘On the Writing of Judgments’
based on a lecture to the First Australian conference on literature
and the law, University of Sydney

2
Hon. Beverley Melachlin PC, Chief Justice of Canada: A
Judicial Impartiality: impossible quest?

3
The Hon, Dennis Mahooney AO. OC: Judgment Writing: ‘Form
and Function’.

4
Byran A. Garner: “A Dictionary of Modern Legal Usage”, P.
661

5
E.N. Brandis, J., U.S. Supreme Court.

6
In the matter of: ‘K’ a Judicial officer, In re (2001) 3 SCC 54, by
Hon’ble Justice R.C. Lahoti.