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NATIONAL JUDICIAL ACADEMY VERBATIM REPORT JUDGING AND JUDICIAL METHODS FOR NEWLY ELEVATED HIGH COURT JUDGES NOVEMBER 19-22, 2015 PREPARED BY MS. PAIKER NASIR, RESEARCH FELLOW, NATIONAL JUDICIAL ACADEMY 0 | P a g e TABLE OF CONTENT Session Topic Page No. Number 1 & 2 Art, science, craft of judging 2 3 Appellate Judging 36 4 Social Context Adjudication 47 5 Importance of Reasoning 72 6 Components of Judicial Reasoning 84 7 Stages of Moral Development 101 8 How to comprehend Precedents? 110 9 Importance of Rationality in a Judgment 127 10 Importance of objectivity in decision making process 151 11 Free and Equal Decision Making 167 12 Challenges in Judging 178 13 Judicial Persuasion of emerging trends (National & International) 202 14 How to reconcile conflicting opinions 219 1 | P a g e SESSION 1 Art, science, craft of judging Dr. Geeta Oberoi- Very good morning to all of you. This conference is designed actually inspired by aa by a book by Benjamin Cardozo. You might have read all of you The Nature of Judicial Process. This book and subsequently many other books actually revel how complex judging process is, how complex decision making process is. Further, the book Idea of Justice by Noble laureate Amartya Sen actually provide to us that decision making is more easy but providing reasons for reaching at those decisions is more complex and more difficult task. We all have now assembled for this 4 days conference to understand from ourselves and from each other also how complexities are there in our day to day decision making process aa a judges. aaa how this complexities could be resolved and we can understand from each other if there are better jurisprudential methods that could aid us in providing reasons for the decisions that we make. With this short introduction I would urge all honorable nonparticipating judges to introduce themselves to today's panelists, who will of-course will be introducing themselves after you all have introduced yourselves. Also apart from introduction I would urge that each one of Honorable justices also provide what are your expectation from this 4 days conference, in just 2-3 lines so that in the end we can evaluate whether we designed our conference in such a way that we were able to meet the expectations or there are something that we can take care in next year. With this short introduction maybe aa Mam aaa we can start with you. Participant Judges - Good morning everyone, I am Meenakshi Madan Rai from Sikkim High Court, my expectation from this would be aa little guidance for what we are expected to do, that is I can’t really say right now what I expect but aa let's see at the end of the session aaa at the end of the conference what we get out of it. Thank You. I am Arvind Kumar Mishra from Allahabad High Court, aa since learning itself has been my target every moment so I think I am to learn the very well word used is complexities of writing judgment and the complex atmosphere we are working in and i expect that much guidance will be provided at the end. 2 | P a g e Myself Raghvendra Kumar, Judge Allahabad High Court. There is no stage for learning, this training programme has nicely been carved out. We hope and expect aaa we hope this would enhance our capabilities and we would try to excel on the basis of learning which we received here. Thank you. Myself Justice I.S. Mehta, from Delhi High Court. What has to be expected is we believe that we will do better in this conference and whatever been guided we would like to carry it out to Delhi for implementation for the same. Good Morning this is. Justice Sangita Dhingra Sehgal, and aa as far as the conference is concerned I only want to say is that we learn daily and aaa we hope aaa we hope that you know whatever we discuss here will make us help to aaa us improve our work. So let’s see. Good Morning, I am Justice S. Sujatha from Karnataka High Court and we aa we all have assembled her to enhance to aa improve our skill on the qualities aa on the capabilities so that we could give good judgment and serve the society which is very much required aaa to discharge our duties aaa as a judge so that aa we can come as a good judge aaaa not only in out judicial work aaa in the overall aaa tendency that's what is required by us as a judge what we have to do and what the society expects from us that we have to fulfill it that's aaa hope we are aaa to learn all this aa and aa improve ourselves in this aspect. Thank you all. Hello aa Good Morning everybody, I am Justice R.K. Phukan, from Gauhati Assam, so I am newly elevated this year in the month of January, so aaa I am from the lower judiciary for aa Grade I for around 10 years and from that practical experience I am from experience from the bench but it is always difficult to resolve the old pending cases because of the lawyers and their conduct aaa basically they focus on new cases so that they can procure some interim relief etc. o serve the purpose and then they are aa thereafter reluctant to continue the old matters before the hand whatever it may be civil or criminal and it creates problem for us, we have to call for aa we are bound to give adjournment also that is why we always feel that we have to overcome this one in particularly in Appeal cases when the appellant is absent the court have to wait for the appellant unless until aaa he has been heard for disposal of cases behind the appellant but what if when the council is reluctant they make so many pretext and on some occasions we also deliver judgment 3 | P a g e in absence of the appellant and the Supreme Court will aaa in this way aaa we have to aaa I in some cases give some amicus curie so that their case may be conducted instead of laying years after years. It's a great difficulty. So we expect some guidance from this conference so that we can get this hurdle because majority of senior lawyers are reluctant to do this old pending cases and because aa unless we come across with this problem then the pendency of cases cannot be reduced aaa of course every judge has it's own course of conduct to handle the cases. But i suggest we should go for new ways so that we can reduce pending because people never get relief if such cases are pending before the court years after years. aaa we expect some practical guidelines, advise from this aa training programme, so that we can affectively deal with the cases in all whether it is civil or criminal. Thank You to all. I am Justice Shivakant Prasad from Calcutta High Court, newly elevated in the month of March this year. I am basically from judicial service and I have started my career as Munsif Magistrate in Calcutta and aaa while presiding as a Munsif i learned that I have not lkearned anything. So everything that I have localized but I would make out and I could not apply them. By the process of judicial proceeding in the court I learnt lot and still I feel that I have not learnt anything because the law is changing everyday new laws are coming up on the same points so we remain in fixed that which has to be applied. So in Law College, my professor told us that if you feel that you are master of law then you have lost, you are a great fool or a humble. So, we learn that every day is a day of learning. So I hope that I can hope only that in 4 days sessions we will be leaning a lot . How to apply the art and science in judging and to deliver good judgement and to do justice and to have the access to the justice to the litigant public. Thank You. Sadar Pranaam to everybody. Good Morning to everybody in this morning, I am Sankar Acharyya from Calcutta High Court, I expect an effective discussion on the art, science and craft on the application and placement of precedents in judgment. Thank you all. Good Morning, I am Justice B.S. Walia from the J & K high Court, I would request the Honorable resource persons to give guidance as to what are the parameters to be kept in mind while judging, how to expedite the justice delivery system, what are the ways and means which can be adopted so as to give quick and affective justice to the person who seeks redress and comes to 4 | P a g e court with a feeling of a grievance. So I would be grateful if the Honorable resource persons give guidance on these aspects of the matter. Thank You. Good Morning everybody, I am Justice Ratnaker Bhengra, from the Jharkhand High Court. I was practicing in the Jharkhand High Court, I have just been elevated in April of this year. aaa regarding the course I did go through the questionnaire that was sent to us and that kind of gave me aaa very little sense of what I think what was going to happen but after going through the chart that you have given us, it's kind of further makes it more complex, the picture is building up from that questionnaire to this chart and I am sure that when you go through the sessions it will even get more complex.