STATE BANK OF INDIA AND ANOTHER versus AJAY KUMAR SOOD on 16 August 2022

[2022] 17 S.C.R. 507

STATE BANK OF INDIA AND ANOTHER

v.

AJAY KUMAR SOOD

(Civil Appeal No. 5305 of 2022)

AUGUST 16, 2022

[DR. DHANANJAYA Y. CHANDRACHUD ANDA. S. BOPANNA, JJ.]

Judgment/orders: Writing of judgments – Importance of –Broad guidelines, explaination of – Held: Judgment writing is acritical instrument in fostering the rule of law and in curbing ruleby the law – While judges may have their own style of judgmentwriting, they must ensure lucidity in writing across their styles –Purpose of judicial writing is not to confuse or confound the readerbehind the veneer of complex language – Judge must write to providean easy-to-understand analysis of the issues of law and fact whicharise for decision – Judgments are primarily meant for those whosecases are decided by judges – Judgments of the High Courts andthe Supreme Court also serve as precedents to guide future benches– Judgment is a manifestation of reason, which provide the basis ofthe view which the decision maker has espoused, of the balanceswhich have been drawn – Reasons are crucial to the legitimacy of ajudge’s work – They provide an insight into judicial analysis –Citizens, researchers and journalists continuously evaluate the workof courts as public institutions committed to governance under law– In terms of structuring judgments, it would be beneficial for courtsto structure them in a manner such that the ‘Issue, Rule, Applicationand Conclusion’ are easily identifiable – Well-renowned ‘IRAC’method generally followed for analyzing cases and structuringsubmissions can also benefit judgments when it is complemented byrecording the facts and submissions – On facts, impugned judgmentbeing incoherent and incomprehensible is set aside and remandedback – Incoherent judgments have a serious impact upon the dignityof our institutions.

Allowing the appeal, the Court

HELD: 1.1 The judgment of the Division Bench of the HighCourt of Himachal Pradesh is incomprehensible. This Court in

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Aappeal found it difficult to navigate through the maze ofincomprehensible language in the decision of the High Court. Alitigant for whom the judgment is primarily meant would be placedin an even more difficult position. Untrained in the law, the litigantis confronted with language which is not heard, written or spokenin contemporary expression. Language of the kind in a judgmentBdefeats the purpose of judicial writing. Judgment writing of thegenre in appeal detracts from the efficacy of the judicial process.The purpose of judicial writing is not to confuse or confound thereader behind the veneer of complex language. The judge mustwrite to provide an easy-to-understand analysis of the issues ofClaw and fact which arise for decision. Judgments are primarilymeant for those whose cases are decided by judges. Judgmentsof the High Courts and the Supreme Court also serve asprecedents to guide future benches. A judgment must make senseto those whose lives and affairs are affected by the outcome ofthe case. While a judgment is read by those as well who haveDtraining in the law, they do not represent the entire universe ofdiscourse. Confidence in the judicial process is predicated onthe trust which its written word generates. If the meaning of thewritten word is lost in language, the ability of the adjudicator toretain the trust of the reader is severely eroded. [Para 10][517-EB-F]

1.2 The case is remitted back to the High Court forconsideration afresh. The judgment of the High Court is simplyincomprehensible leaving no option than to remand theproceedings. The High Court must appreciate the delay andFexpense occasioned as a consequence and must make an effortto record reasons which are understood by all stake-holders. [Para11][517-F-G]

1.3 Amidst an overburdened judicial docket, a view issometimes voiced that parties are concerned with the outcomeGand little else. This view proceeds on the basis that parties valuethe outcome and not the reasoning which constitutes thefoundation. This view undervalues the importance of the judicialfunction and of the reasons which are critical to it. The work of ajudge cannot be reduced to a statistic about the disposal of acase. Every judgment is an incremental step towards consolidationH

and change. In adhering to precedent, the judgment reflects acommitment to protecting legal principle. This imparts certaintyto the law. Each judgment is hence a brick in the consolidation ofthe fundamental precepts on which a legal order is based. But inincremental steps a judgment addresses the need to evolve andto transform by addressing critical issues which confront humanexistence. Courts are as much engaged in the slow yet not sosilent process of bringing about a social transformation. How goodor deficient they are in that quest is tested by the quality of thereasons as much as by the manner in which the judicial processis structured. [Para 13][520-B-E]

1.4 A judgment culminates in a conclusion. But its contentrepresents the basis for the conclusion. A judgment is hence amanifestation of reason. The reasons provide the basis of theview which the decision maker has espoused, of the balanceswhich have been drawn. That is why reasons are crucial to thelegitimacy of a judge’s work. They provide an insight into judicialanalysis, explaining to the reader why what is written has beenwritten. The reasons, as much as the final conclusion, are opento scrutiny. A judgment is written primarily for the parties in aforensic contest. The scrutiny is first and foremost by the personfor whom the decision is meant - the conflicting parties beforethe court. At a secondary level, reasons furnish the basis forchallenging a judicial outcome in a higher forum. The validity ofthe decision is tested by the underlying content and reasons.But there is more. Equally significant is the fact that a judgmentspeaks to the present and to the future. Judicial outcomes takensingularly or in combination have an impact upon human lives.Hence, a judgment is amenable to wider critique and scrutiny,going beyond the immediate contest in a courtroom. Citizens,researchers and journalists continuously evaluate the work ofcourts as public institutions committed to governance under law.Judgment writing is hence a critical instrument in fostering therule of law and in curbing rule by the law. [Para 16][521-F-G;522-A-C]

1.5 Judgment writing is a layered exercise. In one layer, ajudgment addresses the concerns and arguments of parties to aforensic contest. In another layer, a judgment addresses stake- AB

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Aholders beyond the conflict. It speaks to those in society who areimpacted by the discourse. In the layered formulation of analysis,a judgment speaks to the present and to the future. Whether ornot the writer of a judgment envisions it, the written productremains for the future, representing another incremental step insocietal dialogue. If a judgment does not measure up, it can beBcritiqued and criticized. Behind the layers of reason is the visionof the adjudicator over the values which a just society mustembody and defend. In a constitutional framework, these valueshave to be grounded in the Constitution. The reasons which ajudge furnishes provides a window - an insight - into the work ofCthe court in espousing these values as an integral element of thejudicial function. [Para 17][522-D-F]

1.6 It is also useful for all judgments to carry paragraphnumbers as it allows for ease of reference and enhances thestructure, improving the readability and accessibility of theDjudgments. A Table of Contents in a longer version assists accessto the reader. [Para 20][523-C-D]

1.7 On the note of accessibility, the importance of makingjudgments accessible to persons from all sections of society,especially persons with disability needs emphasis. All judicialEinstitutions must ensure that the judgments and orders beingpublished by them do not carry improperly placed watermarks asthey end up making the documents inaccessible for persons withvisual disability who use screen readers to access them. On thesame note, courts and tribunals must also ensure that the versionof the judgments and orders uploaded is accessible and signedFusing digital signatures. They should not be scanned versions ofprinted copies. The practice of printing and scanning documentsis a futile and time-consuming process which does not serve anypurpose. The practice should be eradicated from the litigationprocess as it tends to make documents as well as the processGinaccessible for an entire gamut of citizens. [Para 21][523-D-F]

1.8 In terms of structuring judgments, it would be beneficialfor courts to structure them in a manner such that the ‘Issue,Rule, Application and Conclusion’ are easily identifiable. The well-renowned ‘IRAC’ method generally followed for analyzing cases H

and structuring submissions can also benefit judgments when itis complemented by recording the facts and submissions. The‘Issue’ refers to the question of law that the court is deciding. Acourt may be dealing with multiple issues in the same judgment.Identifying these issues clearly helps structure the judgment andprovides clarity for the reader on the specific issue of law beingdecided in a particular segment of a judgment. The ‘Rule’ refersto the portion of the judgment which distils the submissions ofcounsel on the applicable law and doctrine for the issue identified.This rule is applied to the facts of the case in which the issue hasarisen. The analysis recording the reasoning of a court forms the‘Application’ section. Finally, it is always useful for a court tosummarize and lay out the ‘Conclusion’ on the basis of itsdetermination of the application of the rule to the issue alongwith the decision vis-à-vis the specific facts. This allowsstakeholders, especially members of the bar as well as judgesrelying upon the case in the future, to concisely understand theholding of the case. [Para 22-24][523-G; 524-A-D]

1.10 The impugned judgment is set aside and is remandeddue to its incoherence. Incoherent judgments have a seriousimpact upon the dignity of our institutions. [Para 26][524-F-G]

1.11 While some broad guidelines have been laid down,individual judges can indeed have different ways of writingjudgments and continue to have variations in their styles ofexpression. The expression of a judge is an unfolding of therecesses of the mind. However, while recesses of the mind maybe inscrutable, the reasoning in judgment cannot be. While judgesmay have their own style of judgment writing, they must ensurelucidity in writing across these styles. [Para 27][524-G; 525-A-B]

State of Himachal Pradesh v. Himachal Aluminium andConductors Civil Appeal No. 5032 of 2022; Sarla Soodv. Pawan Kumar Sharma Special Leave to Appeal (C)No. 7768-7769 of 2017; Shakuntala Shukla v. State ofUttar Pradesh (2021) SCC OnLine SC 672; Shakuntala ABC

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512SUPREME COURT REPORTS

[2022] 17 S.C.R.

AShukla v. State of Uttar Pradesh 2021 AIR 4384:[2021]10 SCALE 298 – referred to.

Lord Burrows, Justice of the Supreme Court of theUnited Kingdom, Judgment-Writing: A PersonalPerspective, Annual Conference of Judges of theBSuperior Courts in Ireland, 20 May 2021; JusticeDaphne Barak-Erez, Writing Law: Reflections onJudicial Decisions and Academic Scholarship, (2015)41- 1 QUEEN’S LAW JOURNAL 255; Justice M.M.Corbett, Writing a Judgment - Address at the FirstOrientation Course for New Judges, (1998) 115CSOUTH AFRICAN LAW JOURNAL 116; JusticeMichael Kirby, On the Writing of Judgments, (1990)64 AUSTRALIAN LAW JOURNAL 69; LordNeuberger, No Judgment – No Justice, First AnnualBritish and Irish Legal Information Institute (BAILII)

DLecture (20 November 2012) – referred to.

Case Law Reference

2021 AIR 4384

referred toPara 12

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 5305of 2022.EFrom the Judgment and Order dated 27.11.2020 of the High Courtof Himachal Pradesh at Shimla in Writ Petition No. 3597 of 2020.

Sanjay Kapur, Ms. Subhra Kapur, Ms. Megha Karnwal, ArjunBhatia, Aashish Kumar, Ms. Akshata Joshi, Advs. for the Appellants.

Colin Gonsalves, Sr. Adv., Ms. Radhika Gautam, Ms. Anjali Dubey,FMs. Hetvi, Advs. for the Respondent.

The Judgment of the Court was delivered by DR. DHANANJAYA Y. CHANDRACHUD, J.

1. Leave granted.

2. This appeal arises from a judgment dated 27 November 2020Gof a Division Bench of the High Court of Himachal Pradesh. The HighCourt affirmed the order of the Central Government Industrial Tribunal[1]dated 09 July 2019.

3. In 2013, the appellant issued a charge sheet to the respondentin a disciplinary enquiry on a charge of gross misconduct. The respondentH1 “CGIT”

was charged with (i) gross misconduct including disrupting the functioningof the branch of the bank and misbehavior with the branch manager; (ii)use of abusive language and threatening the branch manager; (iii)organizing demonstrations without prior notice; (iv) disrupting smoothfunctioning by preventing other employees from carrying out theirfunctions; (v) deliberately flouting systems and procedures with theintention to undermine the branch manager’s authority and increasingthe operational risk of the branch; (vi) unauthorized absence from duty;(vii) disobedience of office orders; (viii) proceeding on medical leavewithout providing relevant medical certificates; and (ix) issuance ofcheques from a bank account which did not have sufficient balance.The enquiry officer submitted an enquiry report dated 19 October 2013finding the respondent guilty of all the charges.

4. The disciplinary authority issued a show-cause notice to therespondent on 22 October 2013 to explain why he should not be dismissedfrom service in view of the findings of the enquiry officer. The respondentsought an extension of 15 days. The disciplinary authority noted that ithad granted an extension of 5 days but not having received any response,it imposed the penalty of dismissal from service by its order dated 06November 2013. The appellate authority of the bank rejected therespondent’s appeal on 03 January 2014.

5. The respondent raised an industrial dispute under the IndustrialDisputes Act 1947 to challenge his termination before the CGIT. Theenquiry proceedings and report were held to be vitiated as they werefound to be in violation of the principles of natural justice by the Tribunal’sorder dated 25 September 2018. However, the bank was allowed to leadevidence to justify the charges against the respondent.

6. Based on the evidence led before the Tribunal on the charge ofmisconduct, the CGIT by its order dated 09 July 2019 came to theconclusion that the first charge against the respondent was proved. TheCGIT found the penalty of dismissal to be harsh and disproportionateand modified the punishment to compulsory retirement.

7. The appellant as well as the respondent instituted writ petitionsbefore the High Court of Himachal Pradesh to challenge the order ofthe CGIT. The High Court affirmed the order of the CGIT. The HighCourt also directed the Tribunal to compute the consequential benefitsconferred upon the respondent. The High Court directed the Tribunal to ABC

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Apass an order in accordance with Section 10(9) and Section 10(10) ofthe Industrial Disputes Act 1947.

8. On 12 March 2021, this Court issued notice against the impugnedjudgment of the Division Bench of the High Court while entertaining theSpecial Leave Petition under Article 136 of the Constitution. This courtBobserved 3 Prima facie, in our view, a serious act of misconduct standsestablished from the evidentiary findings contained in paragraphs16 and 17 of the award of the CGIT (Annexure P-9). We areinclined to issue notice for this reason and for an additional reasonas well.

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4 The reasons set out in the judgment of the Division Bench ofthe High Court dated 27 November 2020 dismissing the petitionfiled by the petitioners under Article 226 of the Constitution, spanover eighteen pages but are incomprehensible. For this purpose, itis necessary to extract paragraphs 3,4,5 and 6 of the judgment ofthe High Court, which read as follows:

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“3. All the afore infirmities noticed in the impugned award, to,occur, in, Annexure P-18, remain neither contested nor anyendeavor, is made by the learned counsel, appearing for theemployer to scuttle all the legal effects thereof. Consequently,the afore apposite noticed infirmities, as, echoed in the impugnedaward, to occur in Annexure P-18, and, appertaining, to,affirmative conclusion(s), being made qua the workman, vis-à-vis, the apposite thereto charges drawn against him, do,necessarily acquire overwhelming legal weight, and, also enjointheirs being revered.

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4. Be that as it may, since the impugned award, is made, inpursuance to a petition filed, before the learned Tribunal, bythe Workman, under Section 2-A, of the Industrial DisputesAct 1947, and, when after affording, the, fullest adequateopportunities, to the contesting litigants, to adduce theirrespective evidence(s), on the issues, falling for consideration,the learned Tribunal proceeded to make the impugned award,(i) thereupon the effect, if any, or the legal effect, of, AnnexureP-18, inasmuch as, it containing evidence, in support of theconclusion(s), borne therein, does, emphatically, become(s)

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subsumed, within the canvas, and, contours, of, the evidenceadduced, respectively, by the workman, and, by the employer,before the learned Tribunal, (ii) unless evidence emergedthrough the witnesses’, who testified before the learnedTribunal, and, upon theirs being confronted with theirstatement(s), previously made before the Inquiry Officer, and,its making unearthing(s), vis-à-vis, hence no credibility, beingassigned, vis-à-vis, theirs respective testification(s), madebefore the learned Tribunal. However, a perusal, of, evidence,adduced before the learned Tribunal, both by the Workman,and, the employer, unveils, (iii) that the afore evidence, becametestified, by all the witnesses concerned, rather with the fullestopportunity, being afforded to the counsel, for the workman,and, to the counsel for the employer, (iv) and, also unveils thatthe counsel, for, the employer, rather omitting to, during theprocess, of, his conducting their cross-examination, henceconfront them, with their previous statement, recorded beforethe Inquiry Officer, for therethrough(s), his obviously attemptingto, hence impeach their respective credibility(ies). In summa,hence the evidence adduced before the Tribunal concerned,alone enjoins its, if deemed fit, being appraised by this Court.

5. The learned Tribunal, had, upon consideration, of evidenceadduced, vis-à-vis, charges No. 2, 3, 4, 5, 6, 7, 8 and 9, henceconcluded, qua theirs, not therethrough, becoming proven,rather it made a conclusion, vis-à-vis, their being lack, of, cogentevidence, or their being want, of, adduction, of, cogent evidence,qua therewith, by the employer, and, obviously, returnedthereon(s) finding(s), adversarial, to the employer.Consequently, hence the appraisal, of, evidence, adduced bythe department/employer, vis-à-vis, the afore charges, doesnot, merit any interference, as reading(s) thereof, obviously,unfold qua the appraisal, of, evidence, adduced, vis-à-vis, theafore drawn charges, hence by the learned Tribunal, hencenot, suffering from any gross mis-appraisal thereof, nor fromany stain, of, non-appraisal, of, germane evidence, henceadduced qua therewith, by the department/employer.

6. The ire res-controversia, erupting interse the litigants,appertains, to findings, adversarial, to the workman, becoming AB

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returned upon charge No. 1. Though the learned counselappearing for the workman, contends with much vigor, beforethis Court, that since the CCTV footage, does not vividlypronounce, qua the workman, tearing the apposite letter,thereupon findings, adversarial, to the workman, were notamenable, to be returned upon charge No. 1(supra). However,the afore made submission, before this Court, by the learnedcounsel for the workman, is, made without his bearing in mind,the further facet, vis-à-vis, the workman, in his cross-examination, making articulation(s), coined in the phraseology,“No Branch Manager has dared to issue me letter prior tothis”. In addition, with the Workman, despite his coming intopossession, of, the apposite letter, issued to him, by the BranchManger, especially when no evidence, contra therewith, becameadduced, by him, hence became enjoined, to dispel the factum,of, his not tearing it, rather ensure its production, before theOfficer concerned. However, he failed to adduce/produce theafore letter before the Officer concerned, thereupon, dehorsthe CCTV footage, not graphically displaying his tearing theapposite letter, rather not cementing or filliping any conclusion,vis-à-vis, perse therefrom, any exculpatory finding, becomingamenable to be returned upon charge No. 1.”

5 We are constrained to observe that the language in the judgmentof the High Court is incomprehensible. Judgments are intended toconvey the reasoning and process of thought which leads to thefinal conclusion of the adjudicating forum. The purpose of writinga judgment is to communicate the basis of the decision not only tothe members of the Bar, who appear in the case and to others towhom it serves as a precedent but above all, to provide meaningto citizens who approach courts for pursuing their remedies underthe law. Such orders of the High Court as in the present case dodis-service to the cause of ensuring accessible and understandablejustice to citizens.

6 Since the High Court has affirmed the award of the CGIT, wehave been able to arrive at an understanding of the basic factsfrom the order which was challenged before the High Court. Fromthe record of the Court, more particularly the award of the CGIT,it emerges that though a serious charge of misconduct was held to be established against the respondent, it has been interferedwith and the High Court has dismissed the petition under Article226.”

9. Following the return of notice, we have heard Mr Sanjay Kapur,counsel for the appellant and Mr Colin Gonsalves, senior counsel for therespondent.

10. The judgment of the Division Bench of the High Court ofHimachal Pradesh is incomprehensible. This Court in appeal found itdifficult to navigate through the maze of incomprehensible language inthe decision of the High Court. A litigant for whom the judgment isprimarily meant would be placed in an even more difficult position.Untrained in the law, the litigant is confronted with language which is notheard, written or spoken in contemporary expression. Language of thekind in a judgment defeats the purpose of judicial writing. Judgmentwriting of the genre before us in appeal detracts from the efficacy of thejudicial process. The purpose of judicial writing is not to confuse orconfound the reader behind the veneer of complex language. The judgemust write to provide an easy-to-understand analysis of the issues oflaw and fact which arise for decision. Judgments are primarily meantfor those whose cases are decided by judges. Judgments of the HighCourts and the Supreme Court also serve as precedents to guide futurebenches. A judgment must make sense to those whose lives and affairsare affected by the outcome of the case. While a judgment is read bythose as well who have training in the law, they do not represent theentire universe of discourse. Confidence in the judicial process ispredicated on the trust which its written word generates. If the meaningof the written word is lost in language, the ability of the adjudicator toretain the trust of the reader is severely eroded.

11. We are constrained to remit the proceedings back to the HighCourt for consideration afresh. The judgment of the High Court is simplyincomprehensible leaving this Court with no option than to remand theproceedings. The High Court must appreciate the delay and expenseoccasioned as a consequence and must make an effort to record reasonswhich are understood by all stake-holders.

12. Earlier too, in State of Himachal Pradesh v. HimachalAluminium and Conductors,[2]Sarla Sood v. Pawan Kumar Sharma,[3]

2 Civil Appeal No. 5032 of 2022, Supreme Court of India 3 Special Leave to Appeal (C) No. 7768-7769 of 2017, Supreme Court of India AB

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Athis Court had to remand the proceedings arising out of similar judgmentsof the High Court of Himachal Pradesh, so that orders could be passedafresh in language which is capable of being understood. In ShakuntalaShukla v. State of Uttar Pradesh as well,[4] a two Judge Bench of thisCourt, was faced with an order of the High Court of Judicature atAllahabad which made it difficult to discern between the submissions ofBcounsel and the reasons of the court. Laying emphasis on the purpose ofa judgment, this Court elaborated on what should be the content of ajudgment. The court observed that:

33. […] “Judgment” means a judicial opinion which tells the storyof the case; what the case is about; how the court is resolving theCcase and why. “Judgment” is defined as any decision given by acourt on a question or questions or issue between the parties to aproceeding properly before court. It is also defined as the decisionor the sentence of a court in a legal proceeding along with thereasoning of a judge which leads him to his decision. The termD“judgment” is loosely used as judicial opinion or decision. RoslynAtkinson, J., Supreme Court of Queensland, in her speech oncestated that there are four purposes for any judgment that is written:

i) to spell out judges own thoughts;

ii) to explain your decision to the parties;Eiii) to communicate the reasons for the decision to the public;and

iv) to provide reasons for an appeal court to consider

34. It is not adequate that a decision is accurate, it mustFalso be reasonable, logical and easily comprehensible. [….]What the court says, and how it says it, is equally important aswhat the court decides.

35. Every judgment contains four basic elements and they are (i)statement of material (relevant) facts, (ii) legal issues or questions,G(iii) deliberation to reach at decision and (iv) the ratio or conclusivedecision. A judgment should be coherent, systematic andlogically organised. It should enable the reader to tracethe fact to a logical conclusion on the basis of legal principles.It is pertinent to examine the important elements in a judgment in H4 (2021) SCC OnLine SC 672

order to fully understand the art of reading a judgment. In thePath of Law, Holmes J. has stressed the insentient factors thatpersuade a judge. A judgment has to formulate findings of fact, ithas to decide what the relevant principles of law are, and it has toapply those legal principles to the facts. The important elementsof a judgment are:

i) Caption

ii) Case number and citation

iii) Facts

iv) Issues

v) Summary of arguments by both the parties

vi) Application of law

vii) Final conclusive verdict

36. The judgment replicates the individuality of the judge andtherefore it is indispensable that it should be written with care andcaution. The reasoning in the judgment should be intelligibleand logical. Clarity and precision should be the goal. Allconclusions should be supported by reasons duly recorded.The findings and directions should be precise and specific.Writing judgments is an art, though it involves skillfulapplication of law and logic. We are conscious of the fact thatthe judges may be overburdened with the pending cases and thearrears, but at the same time, quality can never be sacrificed forquantity. Unless judgment is not in a precise manner, it would nothave a sweeping impact. There are some judgments that eventuallyget overruled because of lack of clarity. Therefore, whenever ajudgment is written, it should have clarity on facts; on submissionsmade on behalf of the rival parties; discussion on law points andthereafter reasoning and thereafter the ultimate conclusion andthe findings and thereafter the operative portion of the order. Theremust be a clarity on the final relief granted. A party to the litigationmust know what actually he has got by way of final relief. Theaforesaid aspects are to be borne in mind while writing thejudgment, which would reduce the burden of the appellate courttoo. We have come across many judgments which lack clarity onfacts, reasoning and the findings and many a times it is very difficult A

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to appreciate what the learned judge wants to convey through thejudgment and because of that, matters are required to be remandedfor fresh consideration. Therefore, it is desirable that the judgmentshould have a clarity, both on facts and law and on submissions,findings, reasonings and the ultimate relief granted.

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13. Amidst an overburdened judicial docket, a view is sometimesvoiced that parties are concerned with the outcome and little else. Thisview proceeds on the basis that parties value the outcome and not thereasoning which constitutes the foundation. This view undervalues theCimportance of the judicial function and of the reasons which are criticalto it. The work of a judge cannot be reduced to a statistic aboutthe disposal of a case. Every judgment is an incremental step towardsconsolidation and change. In adhering to precedent, the judgment reflectsa commitment to protecting legal principle. This imparts certainty to thelaw. Each judgment is hence a brick in the consolidation of the fundamentalDprecepts on which a legal order is based. But in incremental steps ajudgment addresses the need to evolve and to transform by addressingcritical issues which confront human existence. Courts are as muchengaged in the slow yet not so silent process of bringing about a socialtransformation. How good or deficient they are in that quest is tested byEthe quality of the reasons as much as by the manner in which the judicialprocess is structured.

14. Lord Burrows of the Supreme Court of the United Kingdom,in his speech at the Annual Conference of Judges of the Superior Courtsin Ireland stressed upon the importance of clarity, coherence andFconciseness in judgment writing.[5] Lord Burrows also noted the importanceof the judgment being written in a manner that it is accessible to allconsidering its wide and varied potential audience. He noted:[6]

For senior judges, one’s target audience must include the partiesthemselves, the legal advisers to those parties, other judges, otherGpractising lawyers, academic lawyers and students, and last butby no means least the public at large.

5 Lord Burrows, Justice of the Supreme Court of the United Kingdom, Judgment-Writing: A Personal Perspective, Annual Conference of Judges of the Superior Courtsin Ireland, 20 May 2021H6 Ibid Lord Burrows also reiterates the view of Lord Bingham, that ajudgment which is unclear or not concise and therefore inaccessiblemay contradict the rule of law:[7]

(T)here is the view that a judgment that is unclear or not conciseand therefore inaccessible may contradict the rule of law. Thegreat Lord Bingham – a master of judgment-writing if ever therewas one – suggested this in his book, The Rule of Law. Havinglaid down as his first concretised element of the rule of law that‘the law must be accessible’ he went on as follows:

‘The judges are quite ready to criticise the obscurity andcomplexity of legislation. But those who live in glass housesare ill-advised to throw stones. The length, elaboration andprolixity of some common law judgments… can in themselveshave the effect of making the law to some extent inaccessible.’

15. In a piece of academic writing, Justice Daphne Barak-Erezof the Supreme Court of Israel distinguished between academic writingand judgment writing. While alluding to the importance of judgmentsbeing written in an accessible manner,[8] Justice Daphne Barak-Erez notes:

For judges, the professional community is only one of their severalaudiences. Judges write first and foremost for the parties appearingbefore them, for the state’s agents who are in charge ofenforcement, and for the public. Although judgments areprofessional legal documents, and sometimes involve complextechnical and legal analyses, they should also be accessible, or atleast explicable, to people who are not professionals, as they definethe law for a larger community.

16. A judgment culminates in a conclusion. But its contentrepresents the basis for the conclusion. A judgment is hence amanifestation of reason. The reasons provide the basis of the view whichthe decision maker has espoused, of the balances which have been drawn.That is why reasons are crucial to the legitimacy of a judge’s work.They provide an insight into judicial analysis, explaining to the readerwhy what is written has been written. The reasons, as much as the finalconclusion, are open to scrutiny. A judgment is written primarily for the 7 Ibid 8 Justice Daphne Barak-Erez, Writing Law: Reflections on Judicial Decisions andAcademic Scholarship, (2015) 41-1 QUEEN’S LAW JOURNAL 255

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Aparties in a forensic contest. The scrutiny is first and foremost by theperson for whom the decision is meant - the conflicting parties beforethe court. At a secondary level, reasons furnish the basis for challenginga judicial outcome in a higher forum. The validity of the decision is testedby the underlying content and reasons. But there is more. Equallysignificant is the fact that a judgment speaks to the present and to theBfuture. Judicial outcomes taken singularly or in combination have animpact upon human lives. Hence, a judgment is amenable to wider critiqueand scrutiny, going beyond the immediate contest in a courtroom. Citizens,researchers and journalists continuously evaluate the work of courts aspublic institutions committed to governance under law. Judgment writingCis hence a critical instrument in fostering the rule of law and in curbingrule by the law.

17. Judgment writing is a layered exercise. In one layer, a judgmentaddresses the concerns and arguments of parties to a forensic contest.In another layer, a judgment addresses stake-holders beyond the conflict.DIt speaks to those in society who are impacted by the discourse. In thelayered formulation of analysis, a judgment speaks to the present and tothe future. Whether or not the writer of a judgment envisions it, thewritten product remains for the future, representing another incrementalstep in societal dialogue. If a judgment does not measure up, it can beEcritiqued and criticized. Behind the layers of reason is the vision of theadjudicator over the values which a just society must embody and defend.In a constitutional framework, these values have to be grounded in theConstitution. The reasons which a judge furnishes provides a window -an insight - into the work of the court in espousing these values as anintegral element of the judicial function.F

18. Many judgments do decide complex questions of law and offact. Brevity is an unwitting victim of an overburdened judiciary. It isalso becoming a victim of the cut-copy-paste convenience afforded bysoftware developers. This Court has been providing headings and sub-headings to assist the reader in providing a structured sequence.GIntroduced and popularized in judgment writing by Lord Denning, thisdevelopment has been replicated across jurisdictions.[9]

9 Supra (Lord Burrows)

19. Lord Neuberger, the former President of the Supreme Courtof the United Kingdom, discussed in the course of a lecture[10] theimportance of clearly written judgments:

A second small change worth considering would be for more judgesto give better guidance to the structure and contents of their longerJudgments. Some judges already provide a clear framework,sometimes with a table of contents, a roadmap, at the beginning,and often with appropriate headings, signposts, throughout theJudgment. Kimble’s study confirms that this is not just a gooddiscipline but it is what the legal professional readers want, and, ifit is what lawyers want, it is a fortiori what non-lawyers will want.A clear structure aids accessibility.

20. It is also useful for all judgments to carry paragraph numbersas it allows for ease of reference and enhances the structure, improvingthe readability and accessibility of the judgments. A Table of Contents ina longer version assists access to the reader.

21. On the note of accessibility, the importance of making judgmentsaccessible to persons from all sections of society, especially personswith disability needs emphasis. All judicial institutions must ensure thatthe judgments and orders being published by them do not carry improperlyplaced watermarks as they end up making the documents inaccessiblefor persons with visual disability who use screen readers to access them.On the same note, courts and tribunals must also ensure that the versionof the judgments and orders uploaded is accessible and signed usingdigital signatures. They should not be scanned versions of printed copies.The practice of printing and scanning documents is a futile and time-consuming process which does not serve any purpose. The practiceshould be eradicated from the litigation process as it tends to makedocuments as well as the process inaccessible for an entire gamut ofcitizens.

22. In terms of structuring judgments, it would be beneficial forcourts to structure them in a manner such that the ‘Issue, Rule, Applicationand Conclusion’ are easily identifiable. The well-renowned ‘IRAC’method generally followed for analyzing cases and structuring submissionscan also benefit judgments when it is complemented by recording thefacts and submissions.

10 Lord Neuberger, No Judgment – No Justice, First Annual British and Irish LegalInformation In stitute (BAILII) Lecture (20 November 2012)

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A23. The ‘Issue’ refers to the question of law that the court isdeciding. A court may be dealing with multiple issues in the samejudgment. Identifying these issues clearly helps structure the judgmentand provides clarity for the reader on the specific issue of law beingdecided in a particular segment of a judgment. The ‘Rule’ refers to theportion of the judgment which distils the submissions of counsel on theBapplicable law and doctrine for the issue identified. This rule is applied tothe facts of the case in which the issue has arisen. The analysis recordingthe reasoning of a court forms the ‘Application’ section.

24. Finally, it is always useful for a court to summarize and lay outthe ‘Conclusion’ on the basis of its determination of the application ofCthe rule to the issue along with the decision vis-à-vis the specific facts.This allows stakeholders, especially members of the bar as well as judgesrelying upon the case in the future, to concisely understand the holdingof the case.

25. Justice M.M. Corbett, Former Chief Justice of the SupremeDCourt of South Africa, in a lecture at an orientation course for newjudges,[11] recommended a similar structure which facilitates orderlinessand produces a logical, flowing judgment:

(a) An introductory section;

E(b) Setting out of the facts:

(c) The law and the issues;

(d) Applying the law to the facts;

(e) Determining the relief (including order for costs); and F(f) Finally, the order of the Court.

26. Although it is unfortunate that we have to set aside the impugnedjudgment and direct its remand due to its incoherence, we have takenthe opportunity to lay out the above discussion on judgment writing.Incoherent judgments have a serious impact upon the dignity of ourGinstitutions.

27. While we have laid down some broad guidelines, individualjudges can indeed have different ways of writing judgments and continueto have variations in their styles of expression. The expression of a judge 11 Justice M.M. Corbett, Writing a Judgment - Address at the First Orientation CourseHfor New Judges, (1998) 115 SOUTH AFRICAN LAW JOURNAL 116

is an unfolding of the recesses of the mind. However, while recesses ofthe mind may be inscrutable, the reasoning in judgment cannot be. Whilejudges may have their own style of judgment writing, they must ensurelucidity in writing across these styles. This has also been captured byJustice Corbett,[12] in the following extract:

For lucidity should be the prime aim of any judgment-writer. Atthe same time, certain aspects of style have a bearing on lucidity.In this connection, my advice (for what it is worth) is to keepyour language and your sentence construction simple. Writein short sentences and do not try to pack too many ideasinto a single sentence. Particularly in setting out facts, tryto maintain a simple, straightforward flow to your narrative.

Try to avoid the repetition of words or phrases and observethe normal rules of grammar. A well-known exponent of simplelanguage and the simple sentence was Lord Denning.

(emphasis supplied)

28. Echoing a similar sentiment, Justice Michael Kirby, adistinguished former judge of the High Court of Australia notes:[13]

Brevity, simplicity and clarity. These are the hallmarks of goodjudgment writing. But the greatest of these is clarity.

29. In view of the incomprehensibility of the impugned judgment,we allow the appeal and set aside the judgment of the High Court ofHimachal Pradesh dated 27 November 2020 in CWPs No 3597 of 2020along with 4844 of 2020.

30. CWPs No 3597 of 2020 along with 4844 of 2020 are restoredto the file of the High Court of Himachal Pradesh for being consideredafresh. In paragraphs 3 and 6 of the earlier order of this Court dated 12March 2021, certain observations are contained on the merits of theaward of the CGIT and on the finding of misconduct which was arrivedat against the respondent in the disciplinary proceedings. Since theproceedings are being remitted back to the High Court, it is clarified onthe request of counsel for the respondent, that all the rights andcontentions of the parties on merits are kept open.

12 Ibid

13 Justice Michael Kirby, On the Writing of Judgments, (1990) 64 AUSTRALIAN LAWJOURNAL 691

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[2022] 17 S.C.R.

A31. Considering that the writ petitions were filed in 2020 and thetermination of service goes back to the year 2013, we would request theHigh Court to expedite the disposal of the writ petitions.

32. Pending applications, if any, stand disposed of.

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Nidhi Jain and Anurag Bhaskar

(Assisted by : Priyanshu Agarwal, LCRA)

Appeal allowed.

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