GUIDELINES OF SUPREME COURT FOR WRITING ORDERS AND JUDGEMENTS

[Mr. M. GOVINDARAJAN]

Litigation is the way to settle the disputes between individuals and entities. Various laws have been enacted for settlement of disputes. Justice delayed is justice is denied. Now a day the judgment is delayed due to increase in number of cases. The number of courts is not meeting the requirements of the increasing cases. Some enactments prescribes time limit within which the case is to be finalized. In case there is a delay it is required to record the reasons in writing for such delay. Likewise the judgment plays the vital role. Writing judgment is definitely a difficult task. It may be said that it is an art as well as science. The Supreme Court in its order dated 07th May, 2010 in the case 'Joint Commissioner of Income Tax, Surat V. Saheli Leasing & Industries Limited' - 2010 -TMI - 75903 - SUPREME COURT  gave a detailed guidelines for writing orders and judgments.

After the perusal of the impugned order passed in Revenue Tax Appeal decided by the Division Bench of the High Court of Gujarat at Ahamedabad the Supreme Court thought of remanding the matter for a fresh decision on merits is in accordance with the law but on a deeper and studied scrutiny it will be apt instead of directing to remit, it would be just and proper to consider the matter on merits and to set aside the legal controversy involved in the appeal. The Supreme Court observed that the Division Bench in the impugned order has decided the question of law projected before it in the appeal preferred under Section 260 (A) of the Income Tax Act, 1961 in a most casual manner. The order is not only cryptic but does not even remotely deal with the arguments which were sought to be protected by the Revenue before it.

The Supreme Court time and again reminded the courts performing judicial functions the manner in which judgments/orders are to be written but, it is, indeed unfortunate that those guidelines issued from time to time are not being adhered to. The Supreme Court considers the brevity is an art but brevity without clarity likely to enter into the realm of absurdity, which is impermissible. This is what has been reflected in the impugned order.

The Supreme Court, before proceeding to decide the matter on merits, once again would like reiterate few guidelines for the courts, while writing orders and judgments to follow the same.

The guidelines given below by the Supreme Court are only illustrative in nature, not exhaustive and can further be elaborated looking to the need and requirement of a given case:

* It should always be kept in mind that nothing should be written in the judgement/order, which may not be germane to the facts of the case; it should have a co-relation with the applicable law and facts. The ratio decidendi should be clearly spelt out from the judgment/order;

* After preparing the draft, it is necessary to go through the same to find out, if anything, essential to be mentioned, has escaped discussion;

* The ultimate finished judgment/order should have sustained chronology, regard being had to the concept that it has readable, continued interest and one does not feel like parting or leaving it in the midway. To elaborate, it should have flow and perfect sequence of events, which would continue to generate interest in the reader;

* Appropriate care should be taken not to load it with all legal knowledge on the subject as citation of too many judgments creates more confusion rather than clarity. The foremost requirement is that leading judgments should be mentioned and the evolution that has taken place ever since the same were pronounced and thereafter, latest judgment, in which all the previous judgments have been considered, should be mentioned. While writing judgment, psychology of the reader has also to be born in mind, for the perception on that score is imperative;

* Language should not be rhetoric and should not reflect a contrived effort on the part of the author;

* After arguments are concluded, an endeavor should be made to pronounce the judgment at the earliest and in any case not beyond a period of three months. Keeping it pending for long time sends a wrong signal to the litigants and the society;

* It should be avoided to give instances, which are likely to cause public agitation or to a particular society. Nothing should be reflected in the same which may hurt the feelings or emotions of any individual or society.

The Supreme Court in this case again reiterated that the aforesaid are some of the guidelines which are required to be kept in mind while writing judgments.

Discussions to this article

[DEV KUMAR KOTHARI]

The guidelines of the Supreme Court can be just considered as a refreshing of what the judges must have studied during their law course and in course of practice and /or services before becoming judges. During course of practice also they must have felt need of well written judgments. However, we find that many of judgments and orders are passed in a manner. The reasons given are lack of time and shortage of judges combined with large pendency. If one go in ground realities, the reasons for pendency of cases will be found in- defective procedures causing too many hearings, many judges not giving full time to the court, delaying tactices adopted by parties and favored by judges in passing orders and not finalizing judgments. In any case, the Rule can be made that the petitioner/appellant must file all documents relied on, brief notes or written submission, etc. in the court and simultaneously provide copy of the same to the respondents.likewise a The respondent must file his reply and evidence then petitioner / appellant can file counter reply. The parties must themselves point out admitted facts and evidences. Any dispute must be specifc and based on material. These processes must be complerted by parties within four months of institution of the matter before the court. Thereafter the court can dispose off the matter within three four months after having two- three hearing. If we go by the trend of orders and judgments pased by courts as available on websites of courts, we find that there large number of orders simply on administrative maters realted with cases whcih can be avoided. Is it necesary for the judge to pass an order for filing and servig of affidavit / counter affdavit/ paper book etc. ? By prescribign procedures for the same, parties can be made liable to comply with all such preliminary matters and then court can consider the mater after the parties to the suit has complied with the same. There must be will to complet the work even in courts. Unfortunately, some parties who are weak in the case, adopt delaying tactices and the courts permit to do the same.