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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