The art of writing a judgment | The Hindu

Op-Eds by Judicial Reforms · July 24, 2018
Author(s): Reshma Shekhar and Amrita Pillai

Judicial academies must focus on equipping trainee judges with skills to write accurate, simple, bias-free orders

The fate of the governance of the National Capital Territory of Delhi was decided earlier this month by the Supreme Court. But one had to pore over 500 pages of widely awaited judgment in order to understand the demarcation of powers between the Lieutenant Governor and the elected government. It was yet another reminder about the need for crisp and on-message judgments for many reasons.

First, erroneously drafted judgments that run into pages and which state the same point repeatedly have been called out several times by critics within and outside the judiciary.

For example, the Chief Justice of India, Dipak Misra, received flak for his illegible sentence construction in a 2016 judgment — in Subramanian Swamy v. Union of India & Ors, the second sentence ran into 228 words separated by over six commas and 17 “ands”. Whether the crux of the decision can be understood is questionable.

Moral judgment

Second, insensitive comments made in judgments can tarnish the quality of pronouncements. For example, unnecessary remarks have been made on the ‘promiscuous attitude’ and ‘voyeuristic mindset’ of a woman in a bail order of a rape case. The Supreme Court has even frowned on a trial court judgment that rationalised how “wife beating is a normal facet of married life”. Across the judiciary, there are numerous instances of judgments with similar gender-insensitive remarks. Thus, the need for new judges to master sensitive writing cannot be stressed enough. Third, several judgments do not record submissions or issues raised by both parties, which often results in a reader being unable to make out the link between the legal provisions used to arrive at a judgment and the facts to which they are applied. Lastly, in most judgments, a uniform structure (recording of facts, issues, submissions and then reaching the decision) is lacking. Judicial decisions are the law of the land and if the law is unclear, it becomes increasingly difficult to follow or enforce them.


Importance of training

Judicial academies play a significant role in equipping trainee judges to deliver lean, to-the-point judgments. There are now at least four State judicial academies that conduct training. As judgment writing is one of the most requisite skills that a judge should possess, there has to be focussed training in this area. Simple, clear and crisp judgments are vital.

To eliminate bias, training sessions could have diverse socio-economic scenarios which would also help trainee judges apply theories. There can be variations of the same case scenario and the facts that are likely to induce value judgments. Evaluation and a full class discussion must follow..

Another useful exercise is in re-writing judgments, particularly those that are difficult to understand due to a seeming lack of structure. Trainee judges can be asked to identify structural lapses and rework them. For instance, judgments that do not elucidate upon recorded submissions of parties or legal provisions cannot be understood easily since there is no context as to why a decision was taken.

Judicial education

The attempt towards improving judgment quality (in the form of training sessions on judgment writing conducted by judicial academies) appears to be ineffective as several judgments in lower and higher courts continue to remain verbose. Judicial training must lay emphasis on the need for concise and reasoned judgments.

State academies conduct training (from three months to a year) for entry-level judges, hold refresher courses for subordinate and district level judges, and have special training for service in special courts such as family and Protection of Children from Sexual Offences courts. Right to Information responses show that there has been no change in their academic calendars in the past five years. Further, the various modes of training remain uncaptured. Finally, very few States conduct post-training evaluation of judges. Judges-in-training do not go to areas of law or management that they want to be trained in. A generic syllabus is thrust upon them.

The pedagogical methodology of training is classroom-like, with little or no post-training evaluation. Judicial academies must focus on practical-based training. In the interim, higher courts and also the Supreme Court must consider summarising the crux of lengthy decisions into a separate official document. Such summary briefs can be uploaded by the Registry along with the judgment which would help the layperson in understanding the main ideas of the decision.

Reshma Sekhar and Amrita Pillai are Research Fellows at the Vidhi Centre for Legal Policy, New Delhi

Originally Published: https://www.thehindu.com/opinion/op-ed/the-art-of-writing-a-judgment/article24497762.ece


About Reshma Shekhar:

Reshma is a Research Fellow with the Judicial Reforms team. At Vidhi, her research has been on areas of judiciary that need systematic reform focusing on general issues relating to physical infrastructure of the lower judiciary, training of judges, working of central tribunals, and,specific issues of the Jammu and Kashmir High Court involving case pendency, disposal, court administration and management. Outside her core area of work, she is interested in data design, visualisation and information architecture. Reshma graduated with a B.A.LL.B (Hons.) degree from the National University of Advanced Legal Studies, Cochin in 2015. Prior to joining Vidhi, she worked at Wipro Technologies as an in-house counsel for the Legal and Compliance team. Link to full bio


About Amrita Pillai: