The Judgment

I am a Judge addressing Judges and naturally a controversial political topic cannot be the subject of my talk and it is not. The title of Kuldip Nayyar's book is not in fact original. Frank Kafka, the famous Czech writer wrote a story of that name in 1916. That story bore a title with legal tinge as his another well known novel was given the title of "The trial".  We are not concerned with the judgment either in literature or in politics. As Judges we are concerned with Judgments given by the Judges in the course of and as a part of their duties. But the word "judgment" is not to be found in law and law courts alone. That word is to be found elsewhere also. Indeed that word was used in literature, more ancient than statutes procedural or substantive. Again the word has got several meanings. It sounds majestic but means different things to different people. If after being used in spheres other than of law it his found its way in law, it could not have failed to bring with it some of the connotation it had acquired earlier. It would not, therefore, be out of place to notice what judgment means or meant elsewhere.  Beginning must be made with the dictionary meaning. Some of the meanings assigned to it in Chambers's Twentieth Century Dictionary are as follows :  "act of judging" "the comparing of ideas to elicit truth" "opinion formed" "a misfortune sent by Providence in punishment". The last of these meanings is usually found in religious discourses. "Repent ye all men, the day of the judgment has come". Though the religious basis of this meaning is not the immediate concern of ours, it in one sense conveys the magnitude of the concept involved. It means a pronouncement which is final and from which there is no escape; it means the visitation upon a person of punishment for the sins committed by him; it signifies the inexorable end. In this concept you must have notised the one sided aspect. There is no choice.  Fortunately for us that is not the concept with which we are concerned. The judgment that is our concern presupposes two competing views and the acceptance of one as the correct one. The process of comparing at least two different actions or words and deciding which of them is the right one and which is the wrong one is the act of judging. This act of judging is not confined to law courts or to legal sphere. It actually arose in the earliest times in the field of morals or ethics. That is how you will find that word used in the Bible on several occasions. In the old Testament in the book "Psalms" the words "judge" and "Judgment" have been used eighty times.* There it is concerned with ethics. There are in every day life situations where men are called upon to form judgment without being concerned with ethics or law. Whenever a fielder takes a difficult catch or throws the ball from a long distance directly on the stumps, we exclaim "what a judgment". By this we mean he has made the correct decision or the process of taking the action reached the Correct end. This he did in a difficult situation within a second or split second. Fortunately for us judges of law we don't have to be so smart.  * "Law and other things" by Lord Macmillian p. 64.  Let me give you another example which will illustrate the meaning of "judgment". You must have all heard the saying "A Daniel come to Judgment". The origin of this saying is to be found in a story in the Apocryphal Book of Sasannah Sasannah was the wife of a merchant and two parsons accused her of infidelity which she stoutly denied. She had almost bean condemned when Daniel came forward to test the veracity of the accusation. The two accusers were separately examinad by Daniel. He put to each questions, answers to which showed that he had not seen what he claimed to have seen. The account given by one did not agree with the account given by the other though both of them had insisted that they together had seen Sasannah with her lover. Daniel demon. strated that both of them were liars and saved the honour of a woman whose character was spotless. That shows the act or process of judgment. Incidentally this was the first time in history that the technique of cross-examination was employed and the rule seeking corroboration was followed.  So far, I have been dealing with the mental and intellectual process of judgment.  I have yet to come to the judgment all of you have in mind. The judgment you have in mind is of course the written judgment which disposes of a case before you. I have deliberately refrained from starting with the subject of written judgment, because the written judgment is the end and not the beginning. As has been said in "Alice in "Wonderland" you must begin with the beginning and go on till the end and then stop.  Broadly speaking judgment means two things — the act of judging and the written record of thai act. You are naturally concerned with the latter because by that you are judged. A judge is judged by his judgment. A good judge gives a good judgment. A bad judgment shows a bad judge. What is a good judgment ? That is a good judgment which truly and faithfully reflects in words the act of judging made by the Judge in his mind. The Judgment we have to deliver is not a single act; it is a process of reasoning or ratiocination. After hearing both the sides in a case, you cannot just lean back in your chair and say "the suit decreed" or "the accused acquitted". That may be the end or the conclusion of your judgment bat that is not the judgment which I have explained. A judgment no doubt always ends in an order. That order must always be a judge's order and not a general's order. In order that an order should be a judge's order it must be preceded by a considered judgment. I am stressing this fact because it is not always borne in mind by all the Judges. Recently the Nagpur Bench was considering a judgment of a Court below. The judgment had summarised the evidence of both the sides and then ended by saying that side A was correct. No reasons were given, no comparative analysis of the evidence was made. The High Court had naturally to send down case directing the subordinate judge to write the judgment proper. In other words the judgment must reflect the search made by the judge for the truth between two conflicting versions.  It must show the process by which the particular opinion was formed. Unless this is done the parties will not be able to know why a particular order was passed and another order, which according to one at least of the parties would have been a correct one, was not passed. It is the right of the parties to know the reasons that weighed with the Judge and, therefore, it is the duty of the judge to disclose those reasons.  Now I should come to the act of writing the judgment as distinguished from the act of judging. This is of some importance to you because your judgments are subject to appeals. So apart from the parties so the dispute there are other people who will be examining your judgments. In order to enable you to discharge your functions properly the procedural laws provide some guidance.  Order 20 of the Civil Procedure Code deals with the question of judgment. The word "judgment" has been defined in S. 2 (9) as a statement given -by the judge of the grounds of a decree or order. Rules 4 and 5 of order 20 tell you what the judgment should contain. In Criminal Procedure Code 1973 the word judgment has not been defined but Chapter XXVII contains provisions like Order 20 of Civil Procedure Code, relating to judgment. But these provisions are the bare guidelines. They do not instruct us in the art of writing the judgment. And that gives me the excuse for this talk.  In the hierarchy of our courts judgments are delivered by trial courts and appellate courts. Again there are judgments In civil matters and judgments in criminal matters. What I have said earlier regarding the act of judging applies to all these matters. What can be said about the craft of judgment writing in case of trial court's judgments will be slightly different from what can be said about appel. late Judgments. Since you are concerned with trial court's judgments, I will confine my observations to them though many of those observations will apply equally to appellate court judgments.  Bearing in mind that judgment must reflect the act of judging and the process of comparing conflicting views and evidence, we may now have a look at the proceedings in a civil suit. The starting point in civil proceedings is of course the pleadings—the plaint and the writtan statement. They are not always drafted with meticulous care or strictly in accordance with the provisions of Orders 6 to 8 of the Civil Procedure Code. You have to summarise them at the beginning of the judgment. While doing so you have to weed out the surplusage but at the same time faithfully and accurately set out the averments and highlight the points of controversy between the parties. The importance of properly narrating the contents of the pleadings has not always been appreciated. You are aware that pleadings lead to issues which are framed before the commencement of the trial On issues so framed alone evidence can be led. If you have not properly and correctly summarised the pleadings, it will give rise to certain arguments at the ; appellate stage. Many a time it so happens that an issue is framed correctly on the basis of the pleadings but does not appear to be so if one refers to the summary of the pleadings given in the judgment. Grievance is made in the appeal court, at least at the admission stage, that an issue which was not warranted by the pleadings has been framed. A good judgment should not give cause for such a grievance.  After the summary of the pleadings and the setting forth of the issues come the summarising of the evidence and its appreciation. Evidence consists of oral evidence and documentary evidence. Here again an attempt at precision in summarising must be made. It is not uncommon to find recital of the entire evidence in the judgment. It shows a lazy mind, a mind which is unable or unwilling to exert. A proper summary of the evidence will display an organised mind besides making the judgment more artistic. In the case of documentary evidence the temptation to reproduce the contents to show off that one has read the entire document is irresistible. You are a good judge if you have not succumbed for this temptation. In some cases it may become imperative that a major portion of or even the entire document should be incorporated in the judgment for enabling the appeal court to appreciate the true significance of the document. Some times it will be enough if only a small part of the document is extracted and the summary of the rest is given. What should be the proper course will entirely depend upon the nature of the document and the extent of its relevance. How you will do it will depend upon your individual skill.  Than comes the appreciation of evidence which, in my opinion, is the very soul of a judgment and which is entirely dependent upon your individual personality. There are no rules on how to appreciate the evidence. All the judgments of the Supreme Court and of the High Courts will not tell you the lines on which you should proceed in this task. Your commonsense your knowledge of the world and worldly affairs, your perceptive and receptive powers, your gumption—these and other factors will determine the manner in which you will appreciate the evidence. Should you believe this witness or not? What do the recitals in a particular document really mean ? Does the material before the Court really indicate that the landlord bona fide and reasonably requires the suit premises ? Wag the testator fully aware of the contents of the will ? Answers to these and thousands of other questions you will have to decide will not be found in any book. A man's life as a judge is not divorced from his other life as a member of the society and the family where he is canstantly imbibing the experience of the world around him. I would strongly urge upon you to keep your eyes and ears open but your mouth shut wherever you go. A civil Judge is transferred from place to place He should take the opportunity of studying in every place the local conditions, its geography and history, the habits of the people, the flora and fauna of the area, the culture etc. A local library will provide you with the necessary literature. The knowledge thus acquired will help you in appreciating the evidence more maturely. It will of course enrich your personality. This is one of the benefits of judicial service especially in younger days when the mind is still plastic and is able to absorb new ideas and knowledge.  In the process of appreciating the evidence the act of judging is involved to the maximum extent. At the end of the process come the conclusions or answers to the issues in the suit. State the conclusions firmly and in unambiguous words. It is needless to say that appreciation of each witness and examination of each document or connected documents should be written in a separate paragraph the end of which should contain the conclusion. Do not push the conclusions or answers somewhere in the middle of the paragraph. In a case involving large evidence and requiring lengthy judgment it would be helpful to all, including the judge himself, if the conclusions are again summarised in a separate paragraph towards the end of the judgment.  The judgment is closed with an operative part-namely the order. Few have recognised the importance of precision in the order. It is the final order on the basis of which a decree is drafted by the Court officer concerned and it is the decree which finally disposes of the rights and liabilities of the parties in the suit. Examples are not wanting where an order expressed in none too precise language has provided the starting point of fresh litigation. A little extra thought will not fail to lead one to write the correct order. It is no doubt true that when the decree is prepared the plaint is annexed to it. It is also true that a judgment is always available to see what the decree means. But the fact that an order is to be written at the end of the judgment shows the necessity of writing precisely an order which should, without extraneous aid be explanatory. I would strongly urge upon you not to ignore or belittle this part of the judgment.  Now I must turn to some other aspects of the judgment. A judge is in a protected position. As far as his Court is concerned he is the final authority. He has the power to say what he likes in the judgment. He is invested with the right to criticise the witnesses. But this power and this right carry with them an obligation to display not only judicial decorum in the Court room but also restraint in the language of the judgment. Free use of the words such as liars and dishonest while desibing the witnesses is wholly undesirable. English language in which our judgments ace Written is so flexible that it enables us to show a witness to be a liar without calling him so. ''This witness does not inspire confidence". There are so many inconsistencies in his testimony that it is not possible to act upon it. "Tested by other acceptable evidence the testimony of this witness does not commend itself to me ". These and many other such expressions are equally effective where you want to disbelieve a witness. In this connection I can not do better than to refer you to a judgment of the Supreme Court in Ishwari Prasad v. Mohemad Isa, A I R 1969 SC 1728. Please read that judgment carefully. It not only describes the role of a judge but also instructs on how the witnesses are to be dealt with. la my humble opinion it is also a fine example of appreciation of both documentary and oral evidence.  A matter of equal or even greater importance is the way you deal with the arguments addressed to you. Our judisial system has adopted what Is called the adversary system. Each party is represented by an advocate who with all his forensic skill tries to persuade the judge that justice lies on his client's side. Between the conflicting claims a judge has to find out the truth to the best of his ability. In the process, a judge is bound to make mistakes some times. An infallible judge is yet to be born. Therefore the possibility of making mistakes should never unnerve a judge. You must make a threadbare discussion of the arguments advanced before you. It is not only your duty but your right to take the maximum assistance from the bar. This mutual dependence between the Bar and the Bench builds a strong Bar and a sound judiciary. All the arguments advanced must be fully discussed without any attempt to skirt the arguments With which you may not agree. A party will not feel that he is heard unless his view point has been taken note of. A good judgment should give satisfaction even to the losing party. This may be an ideal not easily or frequently achieved but there is no reason why an attempt in that direction should not be made. A judgment that does not do justice to the arguments fails to that extent to do justice to that case. It may even be vulnerable in appeal.  I must now pass on to the question of language. Language, it has been said, is the closs-fitting garment of thought. That only means that the words you use must convey what you intend to convey. Apart from this I am also of the opinion that the language of the judgments must have a beauty and a style. Unfortunately or fortunately our judgments will continue to be delivered ,in English, a language in which we may not be very preficient. But that will not be an excuse for writing clumsy judgments. One has to make the best possible efforts to use as elegant a language as possible. For this purpose one has to study not only legal literature but other literature also. Is it too much to expect an educated man to read at least one non-professional book once a month ? I can tell you very few people at any level do this. Besides I have come across several judgments containing violations of elementaryrules of grammar. A book on good English and a book of English Grammar are not out of place on a Judge's study table. Each one of us unconsciously falls prey to the use of cliches and certain peculiar expressions of our own. Recently I came across several judgments of one District Judge who was persistently using the phrase ''It appears''. In one judgment I found that phrase repeated 12 times on one page alone. Another District Judge was using "I personally think" at least once in every paragraph. One must review one's own past judgments now and then and find out the errors committed and learn lessons for the future.  A colleague of mine is of the view that a judgment should be written in such a language that it will be understood by the parties. I am not sure whether parties before the Court read the judgments at all. The judgments are meant for the advocates and in my opinion it is not necessary to unduly simplify the language. The judgment will and must reflect the personality and learning of the judge. You may choose whichever style suits you.  Before I come to the conclusion of this talk I must caution you against some of the factors that are likely to affect the act of judging impartially. Some are internal to the personality such as personal biases and prejudices born out of the class or caste in which one is born. Some are born out of personal experiences. There are facts which are external such as general social prejudices, unsettled conditions, ghastliness of the crime. A judge who is affected by such factors will fail in his duty as a judge.  It is common experience that a piece of work which you do with a liking for it is likely to be a piece of art. If a man does not like the work he is doing he is not likely to do it well. Having opted for judicial service willingly on your own, you must learn to take joy in your work. You will then realise that I the work is interesting as well as light. If a at the lowest rung of the judicial leddar was appointed a Judge of the Supreme Court It is said that every soldier carries in his kit a Field Marshal's baton. Can it not also be said-that every civil judge is a potential Supreme Court Judge? judge looks upon judgeship merely as a paid job (नोकरी) he will be no better than a hamal on the railway station who for a given amount carries the burden over a given distance. In the year 1971 for the first time in the history of India, a person who had started at the lowest rung of the juducial laber was appointed a judge of the supreme court. It is said that every solider carries in his field marshals but on can it not also be said that every civil judge is a potential supreme court judge.

Author Name: Hon’ble Justice R A Jahagirdar