Sunday 8 September 2013

ART OF WRITING JUDGEMENTS


ART  OF  WRITING  JUDGEMENTS

Judgement/order, or by whatever name it is called, is

the outcome of a judicial process. The judicial process can be

described as an act of churning the allegations and counter

allegations with evidence to bring the truth on to the surface.

Basing on the truth so extracted, justice is dispensed to the

parties through judgement. It is therefore imperative to the

judicial officer or any other person performing such duties to

consider the interests of all parties concerned. Otherwise,

injustice may be caused to the cause of justice. Judgement

conveys the perceptive intellect and maturity of the judicial

officer. Judgement is the written version of communication of

court’s findings and its decision. As such the author (member)

must adopt all techniques of effective communication while

writing the order.


Orders are of different kinds. It may be an order on an

interlocutory application (IA), interim order, final order,

enforcement order (section 25) or penalty order (section 27).

Whatever might be the nature of order, it must be a speaking

order in the sense that the order itself must speak why such

an order is made. As already discussed, order is a

communication of Forum’s decision and as such the parties in

dispute, for that matter, any other person reading the order

must understand easily what the order conveys. There should

not be any ambiguity. This communication (order) should be

proper and precise. Using lengthy and complex sentences or

using inappropriate or double meaning words may create

communication barriers. If the order is not communicative the

very purpose of writing an order gets defeated.

A good reader is a good author, as a good listener is a

good communicator. Member should pay rapt attention and

give active listening to what the party says at the time of

hearing and also when the arguments are advanced. Good

reading of various documents filed by the parties enable the

author to write the order judiciously. After going through each

and every document filed the member with due diligence frame

the issues or identify the points for discussion. Basing on the

available evidence on record the points are to be discussed.

Without the support of evidence no discussion will be

appealing. The member has to remember that pleadings are

no evidence. Any order passed without discussion on vital

documents filed is not legally justifiable.  A thorough reading

of all papers filed in the consumer complaint would enable the

member to write the order correctly.

Generally orders are written in English. Unless the

author is proficient in English language he cannot write the

order briefly and precisely. Hence, it is necessary to have

command over English. Member should not hesitate to receive

training in English writing skills, if necessary. It is also

suggested that those who wish to develop their English

vocabulary must refer English Dictionary as often as possible.

It not only strengthens the language base but also enables the

person to choose the right word for the context. Appropriate

word adds strength to the expression, whereas inappropriate

word leads to confusion. It is also necessary to acquaint one

self with the legal jargon before using it.

The elegance of the order depends on the way the issues

are discussed. The contents of various documents received in



that particular case would provide strength to these

discussions. Any way the Forum comes to a conclusion basing

on the truth. In order to extract and establish truth the member

should apply his investigative mind to probe into various

documents, recitals in the complaint and counter and also on

the conduct of the parties. It is not that all complainants are

consumers or all complaints are genuine. Similarly the opposite

parties produce agreements, unilaterally made to escape from

the liability. This is where the member should be more

investigative in his approach and bring the hidden truth to

the surface. Though detailed discussions are important, very

lengthy discussions at times are superfluous. One should avoid

unnecessary and irrelevant discussion. The quality of

judgement depends mainly on the way the issues are discussed

to arrive at the final conclusion.

Another important factor to be kept in mind while

writing judgement is brevity. The order should always be brief

and to the point. The quality of the order is not gazed on the

number of pages but by its language, communicative ability,

judicious approach and above all its brevity. Even the National

Commission in its recent regulations insisted upon short

orders. The regulation prescribes that the order of a Consumer

Forum disposing of a matter shall be as short and precise as

practicable and unnecessary long quotations from the

judgements of the higher courts or otherwise shall be avoided.

In fact, there is no parameter to fix the length of the order.

Generally, the length of the order depends upon the number

of parties mentioned in the complaint; number of documents

relevant to the discussions, number of issues that come up for

consideration and number of reported cases relied upon by

each party. If the number is more, invariably the order becomes

lengthy. Under these circumstances the author does not have

control over these variables. However, the author can avoid



repetition of discussions, unless it is necessary. There is no

need to describe all the documents filed in the order, as the

list of documents with description is mentioned at the end of

the order anyway. It should be born in mind that for the sake

of short order one should not sacrifice the discussion in detail,

on the issues that arise for consideration. But at the same time

one should avoid unnecessary discussions. The author should

scrupulously avoid reproducing in the order what all written

in the complaint and counter except those recitals, which add

strength to the findings or discussions.

The author may confront with several legal issues while

preparing the order. Whenever some legal issues are under

consideration, the member should, with confidence, discuss

the legal provisions by application of his legal knowledge rather

than simply depending on the pleadings. If the author tries to

evade discussion on complicated questions of law, the order

exposes the author’s incompetence. Hence, it is necessary for

the member to acquire legal knowledge by perusing the

relevant enactments and rules of practice besides the decisions

of superior courts. Habit of reading the above material would

enable the author to confidently discuss on the legal issues. If

the author can quote appropriate legal maxims in the order, to

add emphasis, it not only adds flavour to the order but also

reflects the proficiency of the legal knowledge of the member.

The order should be clear, unambiguous and easily

understandable, particularly, to the parties concerned. In order

to achieve the clarity the author must use simple words

avoiding words with double meanings. For instance the word

‘order’ in the legal parlance means judgement or order of the

court. But this word has twenty different lexical meanings. If

the author does not know the true meaning of a word he should

sedulously avoid using that word.



As far as possible better to avoid pompous or

extravagant language. Use of more negative words in a sentence

may lead to confusion. It is mind boggling to the reader and

acquires additional effort to understand the mind of the author.

The author must necessarily read the order, on completion,

once or twice, if necessary, even more to remove ambiguity, if

any.

An order of the Forum may benefit individual parties.

But the author should not look into the matter in a narrow

compass. It is not necessary for the author to bother in whose

favour the order has gone. It is certain that the order would go

either in favour of the complainant or opposite party. It is not

a matter of concern to the author. He should look beyond these

individuals, who are mentioned in the dispute, so that the

author can visualise the impact of his order on the society.

Some times an order might benefit society than individuals.

For instance the Supreme Court’s judgement in M.K. Gupta

vs. Lucknow Development Authority or in Indian Medical

Association  vs. V.P.Shanta or the National Commission’s

judgement in Harjot Ahluwalia  vs. Spring Meadows Hospital

or Delhi State Commission’s judgement against financial

companies or A.P. State Commission’s judgement against

Railways benefit the society at large in addition to some

individuals who filed the complaints. An order must do good

to the society.

In some of the appeals it is seen that the appellate

courts, while setting aside the impugned orders, are

commenting that the lower courts are not applying mind.

Application of mind is a pre-requisite in deciding cases. If an

order is written without application of mind, legal mistakes

or factual mistakes bound to occur. Such mistakes would

hamper the cause of justice. If the author writes the order

mechanically then there will be no application of mind. Suppose



the superior court makes an order committing a mistake of

law, it rules the field till it is rectified by a subsequent decision.

Such order is not only binding on the parties but also on the

lower courts. An error in the order would cause injustice to

the cause of justice. One can write a laudable order by presence

of mind but not by putting it at rest.

Another crucial aspect in writing the order is when the

opposite party is made ex-parte. Usually there will be more

clarity in the contested matter than in the uncontested matter.

In a contested matter both the parties would supply relevant

material. But it is not so in an uncontested matter. If the

opposite party fails to attend the Forum to explain its version

it can not always be presumed that the opposite party willfully

abstained from the proceedings. There may be genuine reasons

for its absence. Sometimes the courts may draw an adverse

inference on the absence of the opposite party. There are also

some decisions holding that the allegations in the complaint

are unrebutted it is deemed that the allegations are proved. If

the matter is not contested it will be difficult to ascertain the

truth unless negligence or deficiency is seen on the face of it.

The author may have to necessarily step in to the shoes of the

absentee and consider the allegations made against him from

his angle.

Sometimes the author might choose to make certain

adverse comments or caustic remarks due to the callous acts

of a person in not discharging the responsibilities towards

consumer. In order to restrain irresponsible attitudes of a

businessman or a government employee, the author while

writing the order may pass some adverse remarks on such

person. Under such circumstances what is required is that such

critical comments should not amount to passing strictures on

such person. The decision of a State Commission suggests that

strictures cannot be passed against any person without hearing


him. Thus passing strictures on any person without providing

him an opportunity to explain his version is not proper.

Preliminary issues like jurisdiction, limitation, etc., may

come up for consideration. It is necessary that such issues

should be considered in the beginning of the order itself than

at a later stage. For instance, if the author chooses to write in

the beginning, the deficiency in service and relief to be granted,

and finally comes to a conclusion that the Forum has no

jurisdiction to entertain the complaint or the complaint is

barred by limitation, then the discussions made in the

beginning of the order does not convey any sense. When the

Forum has no jurisdiction what purpose does it serve if the

opposite party is held to be deficient in services or the

complainant is entitled to receive compensation? It amounts

to illegal exercise of jurisdiction. Hence, the member should

carefully decide which point should precede the other for

making discussion in the order.

The operative portion of the order (result), which usually

finds its place even on the docket, should be pragmatic in the

sense that the directions of the Forum must be practically

possible to comply with. Court should not ask parties to do

which is not possible. The enforcement of order is based on

the operative portion of the order. Hence, the author should

bear in mind that the directions given to the parties must be

clear, unambiguous and executable. Ambiguity in the operative

portion of the judgement not only causes inconvenience to the

parties but also creates a dead lock in resolving the dispute.

For example if an order is made against an opposite party to

remove the deficiency in service which has already been

provided, it will not be in a position to carry out the order as

the service has already been rendered and there is no chance

to repeat the same exercise for removal of deficiency. All the

care taken by the author in preparing the order becomes futile

if the operative portion of the order is not clear. The operative

portion of the order must denote time for compliance of the

order.

Finally, the beauty of the order lies in its conclusion.

Conclusion does not mean a concluding paragraph or the

operative portion of the order. The essence of any order is the

relief granted. Particularly in consumer disputes the

satisfaction or dissatisfaction of consumer will be based on the

kind of relief granted. Under a beneficial legislation like

Consumer Protection Act the member should carefully consider

the kind of benefit or relief that can be passed on to the

consumer as per the provisions of law. The provisions in the

Act should be construed in favour of Consumer. This is where

the member should strike a balance between the legal

provisions and consumer aspirations to bring the matter to a

logical conclusion.

The quality of a member is judged by the order made by

him, and as such he should endeavour to achieve excellence in

writing the order. It is possible only when the member develops

skills in creative writing. Writing the order mechanically

whither the creative skills. Some of the judgements delivered

by Supreme Court, National Commission and various High

Courts are masterpieces, which provide deep insight in to

several legal issues and also guide how to carry out discussions

on the issues and how to write the order attractively and

communicatively. Judgements written by eminent judges of

Supreme Court, National Commission and High Courts would

inspire the member to work for elegance in writing order. The

member should also keep abreast with the latest decisions of

these courts. Similarly, the member should keep himself

acquainted with the recent changes in the legal position.1
source;http://www.lawweb.in/2013/09/good-study-material-on-consumer-law.html


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