HOW JUDGES DECIDE CASES (may be)

This blog is originated in the felt need to educate myself about court litigations. Also, let me tell you at once that this is my premature adventure to write on a subject to which I am taking baby steps and I know I have to travel the earth, walking. And, therefore, I will keep improving this blog while posting my brushing experience. But I am sure, this blog will not the pass the test of umpteen genuine criticisms. Also, in this limited essay, it is impossible to introduce here numerous provisions applicable during the course of any litigation.

In this adventure, the readers, for the limited purpose of reading this mail, has to commit a bonafide temporary mistake to suppose that I am playing a Judge in this script. Now As a Judge- Before I tell you how we decide cases, I will tell you little about Justice and courts.

There were ancient times immemorial when there were no laws to govern and so were no governments & courts and man of victim were settling scores by themselves. But since now when we are a land governed by rules, laws and Judicial pronouncements and scheme of giving Justice by law courts is introduced for enforcement of these rules, laws and Judicial pronouncements, in cases they alleged to have been disregarded.

Let me tell you the whole scheme of Justice in its most common meaning implies the giving of every man his legal dues and the installation of Law Courts are meant for giving that legal due, to the man who comes to the Court with “clean hands”. A aggrieved's act of seeking courts' intervention, in fact, is an appeal to the judicial conscience of the sitting judge, to do that - which all prudent man will do, in the facts of the case.

Let me tell you that in every case filed in the court of law, it is suffice if one merely seeks the bare observance of the letter of the law and the spirit inherent in the letter of the law because NOW we live in a society governed by Laws, rules & judicial pronouncements.

Let me tell you that we are quite conscious that fortune of time, money and wisdom is invested in enacting laws democratically and this whole exercise is passionately thrown overboard at the mere fascination of an irresponsible man when knowingly acting in clear breach of that law established democratically.

Let me also tell you that we know well the fascination of public Officials’ to established laws; and their conscious decision to harass common man which is the main cause of people’s indulgence in expensive and avoidable litigation; and that our government is known to be a huge contributor to delays, in matters where it is a party – at various stages – from evading notices, replying to notices and replying without application of mind, unnecessarily appealing even when the laws are clearly in favour of the other side, etc.

Now coming to main issue, let me tell you how we decide cases, in particularly, in summary proceedings, where cases are decided on the basis of Affidavits filed by the parties, like in Writ proceedings and other summary proceedings.  

Let me tell you that whenever a case comes before the Court, Judges in their occupational wisdom, look at the relevant applicable law; facts of the case, interpret the law if required, settle the correct position of law, apply these settled laws to the facts of the case and thus the parties get their dues in the matrix of facts of the case and settled position of law.

It is always satisfying to see that a case is founded on law points or on equity, or else, let me tell you that case is vulnerable to fall flat. Letter of the law and principles of equity are our writ voice and it is in the national interest if we remain prisoners of statute laws and do not travel beyond letter and intent inherent in language of the law. Let me tell you that we can immediately judge the fairness of case if we slightly come across material inconsistency or untenable averments made in the petition.

I will also share a secret. Success of litigation depends upon the satisfaction of the presiding Judge. Wait a moment...... satisfaction means satisfaction by the averments and crisp arguments and evidences advanced, written and verbal founded on law applicable to the facts of the case.

The very first thing we see that if the Petitioner has reasonably satisfied us that we have jurisdiction to decide the case in hand and we can give authoritative orders/ directions to the Respondents in the case. Then we see if the Petitioner has satisfied us that he has locus to file this case.

Then we satisfy ourselves to the crisp synopsis so made by the Petitioner which quickly gives us the gist of whole case.

After acquainting with gist of the case, we satisfy us as whether applicable laws; sections of statutes are neatly, separately presented for its application with gist of the case to which now we are acquainted with. Let me tell you that we are also very anxious to formulate the principal issue involved in the dispute at hand and the correct position of law as decided in earlier cases on similar issue.

Although the Advocates seem to be laboriously researching; preparing a water tight case, but sometimes, many irrelevancies and quite repetitions creeps in. We would say, there should be economy of words in every pleading.

It is quite satisfying to see if the principal issue i.e. main area of controversy, if there is any, between the Petitioner and the Respondent is brought to our notice in the beginning of the case, before narrating the looong facts of the case.

If it is satisfied to us that synopsis of the case reveals the violation of right or disclose failure of duty of in the light of the letter of the law, the Petitioner has to satisfy us that he has annexed documentary evidences in support of his submissions and he is not making just aerial allegation against the Respondent State without substantiating his averments. Let me tell you that his case may collapse like structure of playing cards in the absence of clear evidences to support his submissions.

If there are clear evidences annexed to support his submissions, then we move to patiently hear the Respondent’s  version of the case.

After patiently hearing their submissions and their annexed evidences, we verify the submissions; evidences furnished by the Petitioner. There may be certain things which the Petitioner has not disclosed. We have to see, if these non disclosures have fatal / material bearing on his case or if those non disclosures are not so important to the final outcome of the case.

Whereas it is seen that advocates and Senior Counsels and even petitioner in persons vehemently put forth the wholesome illegality of the opposite party, in particularly of the mass abuse of powers by ministers; commissioners and thus they feel that they are naturally entitled to seek relief from us. Let me tell you we know well all this abuse of powers. However, this sometimes irritates us and seems exaggerated to us, though they may be very right.

Also, we think, one should avoid being Judgmental in his pleading. The proper analysis of illegal acts alleged and deducing of consequences flowing from the alleged illegal act should reflect in the pleading, to cause alarm; to prejudice the minds of judges against your litigant. Like for example: Instead of alleging that Mr x has played fraud on the court, his alleged act may be deduced to demonstrate alarm. Instead of alleging gross violation of principles of natural justice, his alleged act constituting the allegation may be deduced, employing some exaggeration.

It is enough if we are patiently told to look into the letter of the law that is applicable in the case at hand, and also brought to our notice the correct position of law as decided in earlier instances by HC & SC, and we are neatly told the conduct of the opposite party and then we may be told to satisfy if the conduct of the opposite party is according to the law established ? Let us we be not told directly to pass orders. We are Lordship, you know.

Let me again tell you that we quietly follows the points that advocates are making and can asses their worth; and it is better if we are told succinctly the Law holding the land as on today and the reality holding the land as on today.

Also it is seen that parties seek lot of reliefs and prayers from us. Let me tell you that we are law courts and we are here to interpret the law and settle the correct position of law as it stands in the statute books. And in the light of settled position of law, if the alleging party becomes entitled to the reliefs, he gets it. The relief he gets comes in the wake of settled position of law when applied to his facts of the case.

Dear people, a lethal weapon in hand tempts its owner to use it even unjustly and wantonly and so is the case with possession of undefined discretionary powers we have. But let me also tell you that we are incapable of denying legal dues to anyone who comes to us because we discharge our duties in open public forum; and in the public eye it is sometimes very difficult to abuse powers, especially when one brings forth a clear cut case for adjudication. It all depends on the lawyer who presents the case. Let me tell you that he is quite capable of preventing us from abuse of our undefined discretionary powers. Let me also tell you that urge for justice must emerge from victims because otherwise lawyers seem to be quite busy.

We often feel irritated when advocates ask for immediate reliefs and they don’t care for our satisfaction and our views on it. Let me again remind that we are Lordship. Instead they should pose a question to us.

The Petitioner, in heavy Constitutional matters, may consider, in their Written arguments (final arguments) saying this below in the following fashion:

"The Petitioner is extremely conscious that satisfaction of this Hon’ble Court is prerequisite for success of his litigation and therefore says and submits that-

1. While taking into account the submissions of Petitioners as contained in points .., the Hon’ble Court is prayed to satisfy itself, recording their valued reasoning in its Judgment / order, that if this Hon’ble Court has had the Jurisdiction as to case at hand and if the Petitioners has had the locus to file the case at hand.

2. While taking into account the facts of the case & position of law, the Hon’ble Court is prayed to satisfy itself, recording their valued reasoning in its Judgment / order that if the “principal allegations made by the Petitioners”, as outlined in the points… against the Respondent State appears genuine & correct.

3. The Hon’ble Court is prayed to record in its Judgment / order, the scope & ambit of ‘these’ legal terms & phrases, which forms part of the statute laws and other applicable legal incidents in this case.

4. While taking into account the submissions of Petitioners as contained in points .., the Hon’ble Court is prayed to record in its Judgment / order if the Petitioner has reasonably satisfied this Hon’ble Court about the due compliance of various ingredients / components of applicable section of law at hand, which brings home, either the right of the Petitioners or the guilt of the Respondent State.

5. While taking into account the submissions of Petitioners as contained in points .., the Hon’ble Court is prayed to satisfy itself, recording their valued reasoning in its Judgment / order whether facts of the case & supporting evidences indicates the infringement of rights of the Petitioners, in the light of the position of law.

6. While taking into account the submissions of Petitioners as contained in points .., the Hon’ble Court is prayed to satisfy itself, recording their valued reasoning in its Judgment / order that if conduct of the opposite parties, in the matrix of facts of the case & settled position of law, indicates the frustration of enacted laws / indicates the failure of duties enjoined by law on them.

7. XXXXXXX

8. YYYYYYY"

Let me tell you that Justice dispensation appear much easy compared to other professions and occupations, save criminal trials & “Basic Structure Doctrine cases”, and yet giving of Justice has become a complication of simple things, for all mercies of law are cornered to defend wholesome illegalities, however beautifully crafted our colonial laws are.

Let me finally tell you that there is no guarantee of Justice even if above path is religiously followed, do remember our lethal weapon. And if you aspire to restrict the use of our this lethal weapon, tell your government to do one thing- and they will not do it, is-

(1) Let all court proceedings be video recorded;

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Now coming back to my original spirit..

Sandeep Jalan

(Advocate)

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