I consider it my privilege to have been assigned the task of sharing my views with my distinguished colleagues on “Art of Writing of Judgments”. The real purpose of sharing thoughts with you is introspection recapitulations and refreshing our knowledge which is necessary to keep the institution in good health. Without wasting any time. I revert back to the subject that has been assigned to me.

The topic assigned to me is “The Art of Writing Judgments”. Before dealing with the topic it is imperative to understand the meaning of the expression “Judgment”.

As you know, section 2(9) of the Civil Procedure Code, 1908 defines the term ‘Judgment’ to mean “The statement given by the Judge of the grounds of a decree or order”.

In Halsbury’s Laws of England, 4th Edition, Volume 26 P. 260, it has been said “A judgment or order in its final shape usually contains in addition to formal parts:— (i) A preliminary or introductory part, showing the form of the application upon which it was made, the manner in which and the place at which, the writ or other originating process was served, the parties appearing any consent, waivers, undertakings or admissions given or made, so placed as to indicate whether they relate to the whole judgment or order or only part of it, and a reference to the evidence upon which the judgment or order is based and (ii) a substantive or mandatory part, containing the order made by the court.

Before we proceed to understand the meaning of a “Judgment” I consider it necessary to mention that in the Income-tax Appellate Tribunal our decisions are termed as “Orders”. In Civil law there is a distinction between “an order” and “a Judgment”. Though strictly speaking the order of the Tribunal may not be construed as “Judgments” within the meaning of section 2(9) of the C.P.C. (5 of 1908), yet our orders being open to judicial scrutiny, in my view must contain all the essentials of a good judgment. Therefore wherever reference is made of a judgment it will aptly apply to the order of the Tribunal.

Essential features

With this prelude I proceed to deal with some of the essential features of Judgment Writing.

To put it plainly I compare the writing of judgment with construction of a house property. For construction of house property, you require a plan then material and lastly execution; i.e., construction of the property. Similarly, for writing of judgment we need a plan in respect of which we have to collect material and then put it to execution. The plan for writing of judgment would be the issue which is to be decided. The material for the judgment would be provided by the record, the arguments of the parties and the relevant case law. Putting that material in right place would result in a judgment.

It would be relevant to refer to section 254(1) of the I.T. Act, 1961. The section empowers the Tribunal to pass an order as it thinks fit. It may thus appear that Tribunal may accept one view or the other from the parties without assigning any reasons. So, however, it is not so.

In the case of Union of India vs. M.L. Kapoor AIR 1974 SC 87, their Lordships of Supreme Court observed as under –

“If the statute requires recording of reasons, then it is the statutory requirement and, therefore, there is no scope for further inquiry. But even when the statute does not impose such an obligation it is necessary for the quasi- judicial authorities to record reason as it is only visible safeguard against possible injustice and arbitrariness and affords protection to the person adversely affected. Reasonss are the links between the material on which certain conclusions are based and the actual conclusions. They disclose how the mind is applied to the subject-matter for a decision, whether it is purely administrative or quasi-judicial. They should reveal rational nexus between the facts considered and the conclusion reached. Only in this way can opinions or decisions recorded be shown to be manifestly just and reasonable.”

The following views expressed by Hon’ble Justice S. S. Mukherji, C.J. are also pertinent in this context :—

“Decisions from many administrative Tribunals come up for final adjudication before the highest courts. These highest courts in delivering judgments have to bear in mind that their decisions are intended to guide administrators. Very often long and elaborate judgments of voluminous character fail to offer that effective guide to the administrators in doing practical justice in the light of such judgments. Many of the modern decisions of these higher courts on labour, income tax, customs, copy-rights, trademarks are set out in old traditional patterns of judgments in a manner which are confusing to labour administrators or the income tax administrators or other administrators who are to act according to such judgments. They are completely lost in the forest of discussions contained in the judgments by these courts. Elaborate judgments and even separate judgments by individual judges of the same Bench delivering the decision, often make the position difficult from the point of view of their ultimate utility and practical application. Even interpretation of what these courts intended to say becomes the subject of great and lengthy arguments and a good deal of time is wasted in finding out what these judgments intended ultimately to lay down. It is suggested that a new pattern of judgment is called for in modern jurisprudence specially in these classes of cases which are intended to guide administrators like the Income Tax Officers, labour officers, the Industrial Tribunals, the custom officers and other administrative agencies including corporations, municipalities and public authorities. Judgments in these classes of cases must have a different pattern. They must be short, direct, practical and to the point, emphasizing the directives and avoiding parleys and abstruse dissertations”.

Thus, it is necessary for us to pass a reasoned order which will meet the test of a judicial decision.

The requisites of a judicial decision were laid down by the Supreme Court in Bharat Bank Ltd, Delhi vs. Employees of Bharat Bank Ltd., Delhi AIR 1950 SC 188. Their Lordships quoted with approval following passage from Cooper vs. Wilson, 1937, 2KB 309 at page 340:—

“A true judicial decision presuppose an existing dispute between two or more parties and then four requisites :— (i) the presentation (not necessarily orally) of their case by the parties to the dispute (ii) if the dispute between them is a question of fact, the ascertainment of the act by means of evidence adduced by the parties to the dispute and often with the assistance of arguments by or on behalf of the parties on the evidence (iii) if the dispute between them is a question of law, the submissions on the legal arguments by the parties and (iv) a decision which disposes of the whole matter by a finding upon the facts in dispute and application of the law of the land to the facts so found, including wherever required a ruling upon any disputed question of law.”

These principles were reiterated by their Lordships of the Supreme Court in the case of Maqbool Husain vs. State of Bombay, AIR 1953 SC 325.

With reference to the orders passed by the Income-tax Appellate Tribunal the Hon’ble Supreme Court in the case of Omar Salay Mohamed Sait vs. CIT 37 ITR 151 (SC), laid down the following principles for judgment writing:-

“The Income-tax Appellate Tribunal is a fact finding Tribunal and if it arrives at its own conclusions after due consideration of the evidence before it the court will not interfere. It is necessary, however, that every fact for and against the assessee must have been considered with due care and the Tribunal must have given its finding in a manner which would clearly indicate what were the questions which arose for determination, what was the evidence pro and contra in regard to each one of them and what were the findings reached on the evidence on record before it. The conclusions reached by the Tribunal should not be coloured by any irrelevant considerations or matters of prejudice and if there are any circumstances which require to be explained by the assessee, the assessee should be given an opportunity of doing so. On no account whatever should the Tribunal base its findings on suspicions, conjunctures, or surmises; nor should it act on no evidence at all or on improper rejection of material and relevant evidence or partly on evidence and partly on suspicions, conjunctures or surmises.”

Order to contain reasons

Recording of reasons has been read as an integral part of a judgment. Recording of reasons is considered to be a part of natural justice and every judicial authority. Quasi-Judicial Authority including Administrative Tribunal is bound to record reasons in support of the orders passed by it. Judgment is the most important document for the parties as well as the Judge. So far as the parties are concerned, what is important is the ultimate decision and not the reasons for the decision. Reasons assume importance only when an appeal or revision is filed against the judgment. But so far as the Judge is concerned, the reasons are very important. They indicate the working of his mind, his approach, his grasp of the questions of fact and law involved in the case and the depth of his knowledge of law. In short, the judgment reflects the personality of the Judge and, therefore, it is necessary that it should be written with care and after mature reflection. It will be useful to quote the following observations of Hon’ble Justice Mukharji:—

“The supreme requirement of a good judgment is reason. Judgment is of value on the strength of its reasons. The weight of a judgment, its binding character or its persuasive character depends on the presentation and articulation of reasons.

Reason, therefore, is the soul and spirit of a good judgment.”

In the case of Maneka Gandhi vs. Union of India AIR 1978 Supreme Court 597 their Lordships of the Supreme Court laid down the following principle. The Courts insists upon disclosure of reasons in support of the order on three grounds : (1) the party aggrieved has the opportunity to demonstrate before the appellate or revisional court that the reasons which persuaded the authority to reject his case were erroneous ; (2) the obligation to record reasons operates as a deterrent against possible arbitrary action by executive authority invested with judicial power; and (3) it gives satisfaction to the party against whom the order is made. The power to refuse to disclose reasons in support of the order is “exceptional in nature and it ought to be exercised fairly, sparingly and only when fully justified by the exigencies of an uncommon situation”.

Similar view has been expressed in S.N. Mukherjee vs. Union of India AIR 1990 Supreme Court 1984.

In the case of CIT vs. Walchand AIR 1967 Supreme Court 1435 Hon’ble Supreme Court held. “the practice of recording of decisions without reasons in support cannot but be deprecated.”

In the case of CIT vs. Vikas Chemi Gum India, 276 ITR 32, the Punjab & Haryana High Court emphasized the necessity of giving reasons in quasi-judicial orders. I quote from the judgment :—

“The requirement of recording of reasons and communication thereof has been read as an integral part of the concept of fair procedure. The necessity of giving reasons flows from the concept of rule of law which constitutes one of the corner stones of our constitutional set up. The administrative authorities charged with the duty to act judicially cannot decide the matters on considerations of policy or expediency. The requirement of recording of reasons by such authorities is an important safeguard to ensure observance of the rule of law. It introduces clarity, checks the introduction of extraneous or irrelevant considerations and minimizes arbitrariness in the decision making process. Another reason which makes it imperative for the quasi-judicial authorities to give reasons is that their orders are not only subject to the right of the aggrieved persons to challenge the same by filing statutory appeal and revision but also by filing writ petition under Article 226 of the Constitution. Such decisions can also be challenged by way of appeal under Article 136 of the Constitution of India. The High Courts have the power to issue writ of certiorari to quash the orders passed by a quasi-judicial authority/Tribunal. Likewise, in appeal, the Supreme Court can nullify such order/decision. These powers can be effectively exercised by the superior courts only if the order under challenge contains reasons.”

In the case of Anusayaben A. Doshi & Others vs Joint CIT & Ors, 256 ITR 685, the Hon’ble Bombay High Court observed as under :—

“It is needless to emphasize that the order or judgment should be self explanatory. It should not keep the higher Court guessing for reasons. Reasons provide a live link between conclusions and evidence. That vital link is the safeguard against arbitrariness, passion and prejudice. Reason is a manifestation of the mind of the Court or Tribunal. It is a tool for judging the validity of the order. It gives an opportunity to the higher Court to see whether the impugned order is based on reasons and that the reasons are based on adequate legal and relevant material. Giving reasons is an essential element of administration of justice. A right to reasons is, therefore, an indispensable part of a sound system of judicial review. Reasoned decision is not only for the purpose of showing that the citizen is receiving justice, but also a valid discipline for the authority itself. Therefore, stating of reasons is one of the essentials of justice.”

In the leading case of M.P. Industries vs. Union of India, AIR 1966 (Supreme Court) 671 Hon’ble Justice Subbarao observed as under :

“In the context of a welfare state, administrative Tribunals have come to stay. Indeed, they are the necessary concomitants of a welfare State. But arbitrariness in their functioning destroys the concept of a welfare state itself. Self-discipline and supervision exclude or at any rate minimize arbitrariness. The least a Tribunal can do is to disclose its mind. The compulsion of disclosure guarantees consideration. The condition to give reasons introduces clarity and excludes or at any rate minimizes arbitrariness; it gives satisfaction to the party against whom the order is made; and it also enables an appellate or supervisory Court to keep the Tribunals within bounds. A reasoned order is the desirable condition of judicial disposal”.

Language

Writing of judgment is an art. To some, it is a natural gift while for many it needs to be cultivated. The first requisite is a good command over the language in which the judgment is written. Howsoever, correct a judgment may be on law and facts, it does not make a good impression while it is couched in poor language. On the contrary, a poor judgment written in impressive language is lauded by many of course by people who do not understand law. Language is a medium for conveying one’s thoughts and it is essential that they should be conveyed in a manner which is lucid as well as impressive. The language should, however, be simple. Bombastic or flowery words and expressions, even though literary should be avoided. The test is that a person well-versed in law should not ordinarily be required to consult a dictionary.

Judgment is not a piece of literature to be written in the style of Shakespeare or Milton. It is an essay or a composition intended to convey to a lawyer of average ability the reasons of the Judge for arriving at certain conclusions of facts and law and the principles underlying the relevant statutory provisions or the judicial decisions on which the decision is based. In short, the language should be simple, yet elegant, containing phrases and expressions which convey with lucidity the legal ideas to the reader. The legal terms, expressions and Latin maxims which are well-known may, however, be freely used because the primary object of the judgment is to indicate clearly the mind of the Judge both on law and facts. The language should not be equivocal, vague or susceptible of diverse interpretations. If we care to read the judgments of the Privy Council and the House of Lords, we would be impressed by the method in which difficult and complex legal problems are dealt with in simple language.

Judgments are not novels or dramatic works so as to bring out the various aspects of human psychology in minute details leading to an emotional climax. They should be just cut and dried statements of facts and law, interwoven in logic, in order to get at the truth, but no material fact should be omitted. There may be a generalization here or there with a literary flourish but that is all. Judgment demands discipline in the use of words and expressions; one should not say either more or less than what is strictly necessary and that too with precision.

Brevity – Soul of Good Judgment

It is necessary to avoid repetition of facts and law in the judgment. Brevity is the soul of a good judgment while prolixity is a vice. But brevity must not be at the cost of clarity. A good judgment should not contain unnecessary citations of precedents. Even long quotations from the precedents should be avoided. Only the relevant and most striking passages from a precedent should be picked up in order to support the point for decision.

Normally the judgment should notice every argument at the Bar but a Bench is not bound to notice each and every argument if it is entirely irrelevant and beside the point. Such arguments may be briefly mentioned and summarily rejected as either irrelevant or not in point.

Ratio Decidendi: Binding Precedents

As the judgments of the superior courts are binding on the subordinate courts, their ratio should be clearly indicated and where a particular point merits elaborate discussion of various authorities the conclusion of the Bench should be indicated at the end in very precise terms.

In the case of CIT vs. Sun Engineering Works P. Ltd (1992) 198 ITR 297 @299 the Hon’ble Supreme Court laid down the following principle of law:

“It is neither desirable nor permissible to pick out a word or a sentence from the judgment of the Supreme Court divorced from the context of the question under consideration and treated to be the complete law declared by the Court. The judgment must be read as a whole and the observations from the judgment have to be considered in the light of the questions which were before the Court. A decision of the Supreme Court takes its colour from the questions involved in the case in which it is rendered and while applying the decision to a later case, courts must carefully try to ascertain the true principle laid down by the decision.”

In the case of CIT vs. Thane Electricity Supply Ltd., 206 ITR 727, their Lordship of the Bombay High Court laid down the following general principles with regard to precedents:

1. The law declared by the Supreme Court being binding on all courts in India, the decisions of the Supreme Court are binding on all courts, except, however, the Supreme Court itself which is free to review the same and depart from its earlier opinion if the situation so warrants. What is binding is, of course, the ratio of the decision and not every expression found therein.

2. The decisions of the High Court are binding on the subordinate courts and authorities or Tribunals under its superintendence throughout the territories in relation to which it exercises jurisdiction. It does not extend beyond its territorial jurisdiction.

3. The position in regard to the binding nature of the decisions of a High Court on different Benches of the same court, may be summed up as follows:

1. A single judge of a High Court is bound by the decision of another single judge or a Division Bench of the same High Court. It would be judicial impropriety to ignore that decision, judicial comity demands that a binding decision to which his attention had been drawn should neither be ignored nor overlooked.

2. A Division Bench of a High Court should follow the decision of another Division Bench of equal strength or a Full Bench of the same High Court. If one Division Bench differs from another Division Bench of the same High Court, it should refer the case to a larger Bench.

(i) Where there are conflicting decisions of courts of co-ordinate jurisdiction, the later decision is to be preferred if reached after full consideration of the earlier decisions.

(a) The decision of one High Court is neither binding precedent for another High Court nor for courts or Tribunal outside its territorial jurisdiction.

In the case of Kunahayammed & Others vs. State of Kerala and Another, (2000) 245 ITR 360, their Lordships of the Supreme Court laid down the following principle of law relating to the precedents.

“The jurisdiction conferred by Article 136 is divisible into two stages; the first stage is up to the disposal of the prayer for special leave to appeal; the second stage commences if and when the leave to appeal is granted and the petition for special leave to appeal is converted into an appeal.”
While hearing the petition for special leave to appeal, the Supreme Court is called upon to see whether the petitioner should be granted such leave or not. While hearing such petition, the Supreme Court does not exercise its appellate jurisdiction; it merely exercises its discretionary jurisdiction to grant or not to grant leave to appeal.

If the petition seeking grant of special leave is dismissed, it is an expression of opinion by the Supreme Court that a case for invoking the appellate jurisdiction of the court was not made out.

An order refusing special leave to appeal may be by a non-speaking order or by a speaking order. In either case, it does not attract the doctrine of merger. An order refusing special leave to appeal does not stand substituted in the place of the order under challenge. All that it means is that the Supreme Court was not inclined to exercise its discretion so as to allow the appeal being filed. Whatever be the phraseology employed in the order of dismissal, if it is a non-speaking order; i.e., it does not assign reason for dismissing the special leave petition, it would neither attract the doctrine or merger so as to stand substituted in the place of the order put in issue before it, nor be a declaration of law by the Supreme Court under Article 141 of the Constitution for there is no law which has been declared.

If the order refusing special leave to appeal is a speaking order; i.e., it gives reasons for refusing the grant of leave, then the order has two implications. Firstly, the statement of law contained in the order is a declaration of law by the Supreme Court within the meaning of Article 141 which will obviously be binding on all Courts and Tribunals in India and certainly the parties thereto. Secondly, other than the declaration of law, whatever is stated in the order or the findings recorded by the Supreme Court which would be binding on the parties and the Court, Tribunal or authority whose order was under challenge, in any proceedings subsequent thereto on the principle of judicial discipline, the Supreme Court being the Apex Court of the country. The declaration of law will be governed by Article 141 but the case not being one, where leave is granted, the doctrine of merger does not apply.

The Supreme Court may apply its mind to the meritworthiness of the petitioner’s prayer seeking leave to appeal and having formed an opinion may say “dismissed on the merits”. Such an order may be passed even in the absence of the opposite party. The dismissal would remain a dismissal by a non-speaking order where no reasons have been assigned and no law has been declared by the Supreme Court. The dismissal is not of the appeal but of the petition for special leave to appeal. Even if the merits have been gone into, they are the merits of the special leave petition only. Neither the doctrine of merger nor Article 141 is attracted to such an order.”

In the case of CJT vs. Aruna Bai Hargovind A.S. Patel (2003) 179 CTR 420 (Guj) it was held ;

“If views of Supreme Court expressed in earlier decision are explained in a subsequent decision, the explanation in subsequent decision will have to be followed even if subsequent decision is rendered by a smaller Bench of the Supreme Court.”

Not following earlier orders of Co-ordinate Benches

The Bombay High Court in the case of ICICI vs. D. D. Ruparelia (2000) 99 Com. Cases 181 @ 185 held that to be a ratio decidendi amongst others, the minimum requirements are:—

1. That the matter was directly in issue.

2. That the issue needs to have been decided, and

3. That the matter has been decided by giving reasons.

In the case of Blue Star Ltd vs. CIT, 217 ITR 514 at page 520, their Lordships of Bombay High Court held, “Though Mr. Mistri has relied upon judgments referred to above, as observed by the Earl of Halsbury L C in the case of Quimm vs. Leathem (1901) AC 495 (HL) every judgment must be read as applicable to the particular facts proved or assumed to be proved, since the generality of the expression which may be found there or not intended to be ex-positioned of the whole law, but governed and qualified by the particular facts of the case in which such expressions are found and a case is only an authority for what is actually decides.”

In Ambika Prasad Mishra vs. State of U.P. AIR 1980 (SC) 1762, the Supreme Court held; “Every new discovery or argumentative novelty, cannot undue or compel consideration of a binding precedent. A decision does not lose its authority merely because it was badly argued, inadequately considered or fallaciously decided.”

In the case of Eknath Mukkawar vs. State of Maharashtra AIR 1977 (SC) 1177, the Supreme Court held that it is open to the subsequent Division Bench to differ from the decision of the earlier Bench but in that case the only judicial alternative is to refer to a larger Bench and not to dispose of the matter by taking a contrary view.

Passion

Although logic is an important part of a good judgment, passion cannot sometimes be wholly excluded but it must be the judicial passion with a clear flame and with as little smoke as possible.

Structures

Some Judges while reversing the judgments of the subordinate court readily assume that the Judge acted under improper motives and pass strictures on him. This is not fair. In cases where evidence is evenly balanced, different Judges may be inclined to come to different conclusion on appreciation of the entire evidence. But merely because the finding of a subordinate court does not appear to be correct to a superior court or its approach appears to be erroneous, it would not be proper to impute improper motives to the Judge of the subordinate court while reversing his decision. A Judge does not mind if his decision is upset by a superior court but he feels distressed if his motives are questioned and it is also not in the interests of administration of justice because it is likely to shake the confidence of the litigant public in the impartiality of the Judge. It would be pertinent in this connection to refer to the following observations of their Lordships of the Supreme Court in Ishwari Prasad Misra vs. Mohammad Isa, AIR 1963 SC 1728 (1736) while reversing the decision of the High Court which had passed severe strictures against the Judge of the lower court :—

“We are constrained to observe that the High Court was not justified in passing these strictures against the trial Judge in dealing with the present case. Judicial experience shows that in adjudicating upon the rival claims brought before the courts it is not always easy to decide where truth lies. Evidence is adduced by the respective parties in support of their conflicting contentions and circumstances are similarly pressed into service. In such a case, it is no doubt the duty of the Judge to consider the evidence objectively and dispassionately, examine it in the light of probabilities and decide which way the truth lies. The impression formed by the Judge about the character of the evidence will ultimately determine the conclusion which he reaches. But it would be unsafe to overlook the fact that all judicial minds may not react in the same way to the said evidence and it is not unusual that evidence which appears to be respectable and trustworthy to one Judge may not appear to be respectable and trustworthy to another Judge. That explains why in some cases courts of appeal reverse conclusions of facts recorded by the trial Court on its appreciation of oral evidence. The knowledge that another view is possible on the evidence adduced in a case, acts as a sobering factor and leads to the use of temperate language in recording judicial conclusions. Judicial approach in such cases should always be based on the consciousness that one may make a mistake; that is why the use of unduly strong words in expressing conclusions or the adoption of unduly strong intemperate, or extravagant criticism, against the contrary view, which are often found on a sense of infallibility should always be avoided.”

The Hon’ble Supreme Court in the case of S.K. Viswambaran vs. E. Koya Kanuja, AIR 1987 SC 1436 laid down the following principle :—

It has been judicially recognized that in the matter of making disparaging remarks against persons or authorities whose conduct comes into consideration before court of law in cases to be decided by them, it is relevant to consider: —

1. Whether the party whose conduct in question is before the court has an opportunity of explaining/defending himself;

2. Whether there is evidence on record bearing on that conduct justifying remarks and;

3. Whether it is necessary for the decision of the case as an integral part thereof, to inadvert on that conduct. It has also been recognized that judicial pronouncements must be judicial in nature and should not normally depart from sobriety, moderation and reserve.

Judgment should be free from Obstinacy and Bias

In writing a judgment it is necessary for a Judge/Member to observe the principles of natural justice. I may refer to some of the relevant principles of natural justice for writing a judgment.

Principles of natural justice

Principles of natural justice are sole of an administration of justice and need to be adhered to in order to make the order just and fair. Natural justice is an important concept in administrative law. In the words of Megarry J. in the case of John vs. Rees (1969) 2 (AII) ER 274, “it is justice that is simple and elementary, as distinct from justice that is complex, sophisticated and technical.” The principles of natural justice or fundamental rules of procedure for administrative action are neither fixed nor prescribed in any code. They are better known than described and earlier proclaimed than defined. Natural justice has meant many things to many writers, lawyers and systems of law. It has many colours and shades and many forms and shapes. According to DE Smith in judicial review of administrative action 1995 P 378 the term natural justice expresses the close relationship between the common law and moral principles and it has an impressive ancestry. It is also known as substantial justice, fundamental justice, universal justice or fair play in action. It is a great humanizing principles intended to invest law with fairness to secure justice and to prevent miscarriage of justice.

In Wisemen vs. V. Vorneman (1971) AC 297, it is observed:— “The conception of natural justice should at all stages guide those who discharge judicial function is not merely an acceptable but is an essential part of the philosophy of the law.”

It was held in the case of A. K. Karaipak vs. Union of India AIR 1970 SC 150 that the principle of natural justice is based on three maxims as under:— i) No man shall be a Judge of his own cause. Deciding authority should be impartial and without bias. ii) Justice should not only be done but manifestly and undoubtedly be seen to be done, and iii) Judges like Caesar’s wife should be above suspicion.

Audi Alteram Partem :— No man should be condemned unheard. Both sides must be heard. There must be fairness on the part of the deciding authority.

There are three types of bias :— i) Pecuniary bias ii) Personal bias and iii) Official bias or bias to subject matter.

Pecuniary bias — It is well settled that as regard pecuniary interest the least pecuniary interest in the subject matter of litigation will disqualify any person from acting as a Judge. A pecuniary interest however slight will disqualify even though it is not proved that the decision in any way affected.

Personal bias — The second type of bias is a personal one. A number of circumstances may give rise to personal bias. Here a Judge may be a relative; a friend or business associate of a party. He may have some personal grudge, enmity or grievances or professional rivalry against such party. In view of these factors, there is every likelihood that the Judge may be bias towards one party or prejudiced towards the other.

Oficial bias — The third type bias is official bias or bias as to the subject matter. This arise when the Judge has a general interest in the subject matter. In the case of Manak Lal vs Dr. Prem Chand AIR 1957 SC 425, the Hon’ble Supreme Court laid down the test of bias in the following words :—

“In such cases the test is not whether in fact a bias is affect the judgment; the test always is and must be whether a litigant could reasonably apprehend that a bias attributable to a member of a Tribunal might have operated against him in the final decision of the Tribunal.”

In the case of Ranjit Thakur vs Union of India (1987) 4 SCC 611, the Hon’ble Supreme Court laid down the following test relating to the bias:—

“As to the test of likelihood of bias, what is relevant is reasonableness of the apprehension in that regard in the mind of the party. The correct approach for the Judge is not to look at his own mind and ask himself, however honestly “Am I bias?” but to look at the mind of the party before him.”

It is well understood that the basic ingredient of justice is that it must manifestly and undoubtedly be seen to be done. In the case of Ajit Kumar Sengupta, their Lordships of the Supreme Court had to remind us of this principle once again:—

“Whether judicial obstinacy can be treated as a form of bias …..” At the outset one may out- rightly feel that “obstinacy” and “bias” must remain out of the judicial minds and if the two happen to go together, one can expect only judicial anarchy.”

Their Lordships further observed:

“One of the requirements of Natural Justice is that the hearing should be done by a judge with an unbiased mind. “Bias” may be defined as a pre-conceived opinion or a pre-disposition or pre-determination to decide a case or an issue in a particular manner, so much so that such pre-disposition does not leave the mind open to conviction.”

Thus, bias is a condition of mind, which sways judgments and renders the judge unable to exercise impartiality in a particular case. It can be a pecuniary bias, personal bias, bias as to subject matter in dispute, or policy bias.

May be it is for this reason some judges who hail from the old school of thought still prefer that a judge should shun newspapers before coming to the court where he may have to deal with a case already appeared in the morning headlines. It may prejudice his mind or to say it may cause prejudging the issue. In either of the cases, the hearing may be “biased” not necessarily against the accused.

That may be the reason that publication of stories related to the ongoing legal proceedings are termed as “trial” by media. It is not suggested that the judicial mind is ever influenced by such reports but nevertheless it has been made a ground for shunning the press out of the courts.

But in the instant case of Ajit Kumar Sengupta, the court dealt with what it described as “a new form of bias, namely bias on account of judicial obstinacy.”

Admittedly, judges are not infallible. As human beings they can commit mistakes. Even the best of their judgments reflect their hard work, impartial thinking and objective assessment. Then there is an enabling mechanism through which, it is believed, a mistake committed in a judicial order is corrected through revision by a larger bench.

But, if a judgment is overruled by the higher court, the judicial discipline requires that the judge whose judgment is overruled must submit to that verdict. He cannot, in the same proceedings or in a collateral proceedings between the same parties, rewrite the overruled judgment.

The judge may have his occasion to reiterate his dogmatic views on a particular question of law but not in the same case. “If it is done, it would be exhibitive of his bias in his own favour to satisfy his egoistic judicial obstinacy”, the judges have stressed.

In other words, judicial discipline demands that a judge must be impartial and neutral and be in a position to apply his mind objectively to the facts in the case before him. If he is pre-disposed or suffers from prejudices or has a biased mind, he disqualifies himself from acting as a judge, the judgment adds. The judgment is equally good for any organ of the state which is not infallible in character.

In order to make a good judgment, it is necessary to keep in mind that one has to be open minded, decisive, bright and intelligent, reading papers in advance, picking up what is said in the court very quickly, getting to the bottom of the case and producing an interesting and succinct judgment quickly and come to the grips of the matter.

It is also necessary to keep in mind that a good judgment is the joint effort of bar and the bench. The aim of the bar and Bench is to deliver justice. The bar and the bench have to work together as two wheels of justice. If there is synchronization of the two wheels of justice, there would be smooth run of the vehicle of justice. The judgments are undoubtedly the most important part of the administration of justice and deserve the highest respect. Members listen to arguments everyday. In my view, it is also necessary to spare some time to listen to assessment of our functioning in the mind of litigants. A compliment paid to a good judge/Member is when you left his court you never felt that injustice had been done and if you lost you never felt that you were cheated. There is no greater compliment than this a judge/Member can aspire for. However, I would hasten to add here that do not listen to those who compliment us only to please our ego for apparent reasons.

“Personal emotions of a judicial officer has no place in the judgment he writes while dealing with various cases.” The Delhi High Court has laid down certain guideline on this aspect in judgment writing.

I quote :—

“Emotions have no place in a judgment which has to be based on facts as presented by parties and the evidence, oral or documentary. There should never be any display of emotions or sentiments in the judgment,” the bench said.

The court further said, “a judge neither rewards virtue nor chastises vice. He only administers even-handed justice between man and man and between a citizen and the State. This cardinal principle should always be remembered while constructing a judgment or the order. The judgment should ordinarily contain statement of facts, points in dispute, findings on points in dispute on the basis of evidence and documents and reasons for granting or refusing order/relief”.

“Anything which directly or indirectly aggravates the emotion definitely induces an element of perversity,” the bench said.

The court should abstain from harsh or ungenerous criticism of measures taken in good faith by those who bear the responsibility of the Government, it said.

The bench said a judgment must be calm and balanced and neither it should show prejudice nor sympathy and advised the judicial officers that “sheer length of judgment and its physical weight is not the index of its quality.” “The quality depends on the presentation of facts, discussion of the issues of both facts and law and the quality of the reasons”, the bench added.

The personal philosophy and personal preferences should not be pronounced in the judgment, which would invite levelling of the judge as pro-landlord or pro-tenant, pro-revenue or anti-revenue, pro-labour or pro-management etc., the order said.

“The judicial officers are human beings and their family background; education or environment may find reflection in their decision-making process. But over a period, the judge must detach himself from these fixations and decide cases strictly in accordance with law, equity and justice,” the bench said.

Resenting the high-flown language used in certain judgments, the division bench said, “The judgments are basically meant to be read and understood by laymen, not by scholars.”

Advising the judicial officers not to write long-winded judgments, the bench said, “Judgments should not be prolix or verbose. The prolix judgment is a torture to write and a torture to read.”

The court also advised the judicial officers not to play to the gallery by saying that “judicial officers should not acquire journalistic zeal or write something special for the press.”

The pen of the judges should be like the knife of a surgeon which probes into the flesh only as much as is absolutely necessary for the purpose of the case before it, the court said and added that “disparaging remarks which are not warranted by evidence against a person should never be made.”

“The language of judgment should be sober, dignified, restrained and temperate and in no case satirical or factitious. Judicial officers should refrain from being sarcastic in their judgments,” the bench said.

Appreciation of evidence

It requires a good deal of thought and mature consideration to arrive at a particular conclusion of fact after scrutinizing the evidence of both the parties. Every material document of either side should be considered, and so also every material part of the evidence should be considered and properly marshaled, indicating what value the judge/Member attaches to each and which part of the evidence he considers inconsequential or unreliable with reasons therefor.

From the earliest days, it has been one of the very important responsibilities of the Judges to ascertain the veracity of the evidence by various means in order to get at the truth. It is, therefore, necessary for the Judge/Member to be alert and vigilant while appreciating evidence.

In the case of CIT vs. Durga Prasad More (1971) 82 ITR 540, their Lordships of Hon’ble Supreme Court laid down the following principle of law :—

“Science has not yet invented any instrument to test the reliability of the evidence placed before a court of Tribunal. Therefore, the courts and Tribunals have to judge the evidence before them by applying the test of human probabilities. Human minds may differ as to the reliability of a piece of evidence.”

In the case of R. vs. Dy. Industrial Injuries Commissioner, Ex. Parte Moore (1965) 1 QB 456, the correct legal position has been enunciated by Diplock, J. as under:—

“The requirement that a person exercising quasi-judicial functions must base his decision on evidence means no more than it must be based upon material which tempts logically to show the existence or non existence of facts relevant to the issue to be determined, or to show the likelihood or unlikelihood of the occurrence of some future events the occurrence of which would be relevant. It means that he must not spin a coin or consult an strologer, but that he must take into account any material which, as a matter of reason, has some probative value—. It it is capable of having any probative value, the weight to be attached to it is a matter for the person to whom Parliament has entrusted the responsibility of deciding the issue.”

Yet, as held by the Supreme Court in the case of Bareilly Electricity Co vs. Workman (1971) 2 SCC 617, this does not mean that Administrative Tribunal can decide a matter without any evidence on record or can act upon what is not evidence in the eye of law or on a document not proved to be a genuine one.

Speaking for the Court Ready J. observed “it is inconceivable that the Tribunal can act on what is not evidence such as hearsay, nor can it justify the Tribunal in basing its award on copies of documents when the originals which are in existence are not produced and proved by one of the methods either by affidavit or by witness who have executed them, if they are alive and can be produced.

Decision on Questions of Law

While dealing with issues of law, it is not necessary to state the whole law on the subject commencing from elementary principles supported by numerous rulings. The discussion should be brief but pointed and should be supported by some important decisions. If there is a direct authority of the Supreme Court or of Jurisdictional High Court, it is unnecessary to encumber the judgment with other authorities.

Final order

After dealing with all the issues the final decision should be indicated in the concluding paragaph with suitable directions.

Having understood the basic features of ‘Writing of Judgment” we may have also to bear in mind that the judgment also reflects the personality of the Members writing the judgments. Therefore, it may not be out of place to refer in brief to some of the virtues of the Members to produce good Judgments.

Clarity

Before proceeding to write or dictate a judgment the mind should be clear about the conclusions of fact and law and the final order. One should not commence writing a judgment before making up his mind. An unduly prolix judgment, like the lengthy and rambling arguments of a counsel, is usually the product of a confused mind. It is best avoided.

Honesty

Honesty of purpose is the first essential requirement of a successful Member. He must be honest to the cause of justice. If he is not sincere enough in his effort, the result would be disastrous. A Member has got to be honest and sincere to the parties before him.

I am reminded of the writing of Francis Bacon in the Essays – of Judicature :—

Judges ought to be more learned than witty, more reverend than plausible, and more advised than confident. Above all things, integrity is their portion and proper virtue.”

Courage

A Member must write the order fearlessly keeping in mind decency and decorum without being browbeaten or overawed by the overzealous arguments advanced before him. A Member must write the order to the best of his ability. A Member must be bold but his order should not express any indiscipline, bias or highhandedness. The reasons for reaching to the conclusion should be given to the best of one’s ability.

It will be relevant to refer to the famous observations of the Supreme Court in the case of Distributors (Baroda) P. Ltd. vs. Union of India 7 Others, 155 ITR 120 :—

“We have given our most anxious consideration to this question, particularly since one of us, namely P.N. Bhagwati J. was a party to the decision in Cloth Traders’ case. But having regard to the various considerations to which we shall advert in detail when we examine the arguments advanced on behalf of the parties, we are compelled to reach the conclusion that Cloth Traders’ case must be regarded as wrongly decided. The view taken in that case in regard to the construction of s. 80M must be held to be erroneous and it must be corrected. To perpetuate an error is no heroism. To rectify it is the compulsion of the judicial conscience. In this, we derive comfort and strength from the wise and inspring words of Justice Bronson in Pierce vs. Delameter (A.M.Y. at page 18): “as judge ought to be wise enough to know that he is fallible and, therefore, ever ready to learn : great and honest enough to discard all mere pride of opinion and follow truth wherever it may lead: and courageous enough to acknowledge his errors”.

Hardwork

It is necessary to keep in mind that writing a good order requires hard work. There is a saying in Gujarati, “The sweetness of the food item depends upon the extent of Jaggery put therein.” A member must aspire to live like a hermit and work like a horse. The law is known to be a Jealous mistress – more attached one is to such a mistress better results are obtained in writing orders. “An inefficient but honest Judge is not of much use to the Society. But an efficient but dishonest one is positively dangerous.”

A Member has to develop the power of analysis and assessment. This is possible by hard work.

Wit and temperament in the court

As you know it is necessary to have sufficient material for writing a order. In order to collect good material for the order it is necessary to be patient and witty in the Court Room. One has to be careful in making remarks in the court. An eminent Barrister of Madras bar Mr. Nortan was arguing before an English Judge at the Madras high Court. Judge was short tempered and caustic in his remarks, After hearing Mr. Nortan for some time, the Judge observed that whatever Mr. Nortan was submitting entered his one ear and went out of the other. Mr. Nortan promptly responded by saying that it is bound to be so unless there was something in between to retain it.

The weapon of wit has therefore to be utilized with care and caution in the course of hearing of a case.

The Members should have an amiable temperament while writing a Judgment and conducting the Court.

In my perspective, the following are the formal parts of a judgment :—

1. Title

1. Name of the Bench

2. Name of the Members

2. Name of the parties

3. Name of the Advocates appearing for the parties

4. Heading – Order

5. Brief facts of the Case

6. Decision :

1. Facts in brief containing contentions raised by the parties, background giving rise to dispute before the Bench.

2. Fact in issue – points of disagreement between the parties – points to be determined by the Bench.

3. Evaluation of issues of facts – discussion of evidence produced before the Authorities and Bench by the parties and evaluation with the help of contentions advanced by the representatives of the parties.

4. Issues on law points. Mention or a citation of a relevant law or rule — rule of interpretation applied – reference of case law put forth by the advocates of the parties – ratio decidendi binding on the Bench.

5. Operative order. Applicable law or facts proved – decision on facts in issue with reasons therefor – clear order to the parties.

6. Costs of the case, if any.

7. Date of pronouncement of the order.

8. Signature of the Members.

In the end, I would again like to thank my Hon’ble President Shri Vimal Gandhi for providing me an opportunity to share some of my thoughts with my learned colleagues who have given me patient hearing.

Source : Speech delivered at programme for Orientation & Training of New Members, Income Tax Appellate Tribunal, Mumbai. held from 12th November, 2007 to 28th November, 2007.

Acknowledgement: We are thankful to Hon’ble President, Vice President of ITAT, Mumbai for granting us permission to print the article for the benefit of Tax Professionals.