Voice is the grammatical lever that decides whether a sentence names the doer of an action or pushes that doer into the shadows. In ordinary prose the choice is stylistic; in law it is structural. A penal section that reads whoever commits theft shall be punished is half active and half passive on purpose: the offender is named in the active clause, but the punisher is concealed in the passive one. For the judiciary aspirant, active and passive voice is therefore not a decorative grammar topic but a tool for reading statutes, allocating burden of proof, and writing judgments that say exactly who must do what. This chapter explains the mechanics of voice, the rules for converting between the two, and the places where Indian courts have treated the active or passive form of a verb as legally decisive.
What Voice Is, and Why It Matters in Law
Voice is the property of a transitive verb that shows whether the grammatical subject performs the action (active voice) or receives it (passive voice). In the police arrested the accused, the subject police acts; the sentence is active. In the accused was arrested by the police, the subject the accused is acted upon; the sentence is passive. The same event is described, but the spotlight moves from the doer to the done-to.
Only transitive verbs — verbs that take an object — can be made passive, because the passive promotes the object of the active sentence to subject position. Intransitive verbs such as sleep, arrive or die have no object to promote, so they have no passive form. This dependence on the verb’s type connects voice directly to the wider grammar covered in parts of speech and subject-verb agreement, because identifying the true subject of a passive verb is the first step to making the verb agree and the sentence parse.
For lawyers the stakes are higher than style. The active voice answers the question who did this?; the passive voice can leave that question unanswered. A contract clause reading the goods shall be delivered never says by whom; a charge reading the deceased was killed never says by whom until the prosecution supplies the actor. Because the passive can lawfully omit the agent, drafters reach for it when the doer is unknown, irrelevant, or strategically hidden — and readers must learn to notice the omission.
The Mechanics: be + Past Participle + (by-agent)
Every passive verb in English is built from a form of the auxiliary be followed by the past participle of the main verb. The tense of be carries the time; the past participle carries the meaning. Thus writes becomes is written, wrote becomes was written, will write becomes will be written, and has written becomes has been written. Mastery of voice therefore presupposes mastery of tenses and their usage, because a wrong auxiliary tense produces a passive that is grammatical but historically false — a fatal error in a judgment that must fix the time of an act.
The optional tail of a passive sentence is the by-agent: the prepositional phrase that restores the doer, as in the notice was issued by the Collector. The choice of preposition is not free; it is governed by the rules in prepositions. The agent of an action takes by (signed by the Registrar), but the instrument takes with (the wound was caused with a knife), and the material takes of or with. Confusing by and with in a charge sheet can blur the line between the human offender and the weapon, a distinction every criminal court insists upon.
Three further features complete the pattern. First, the object of the active verb becomes the subject of the passive, so the verb must agree in number with that new subject. Second, ditransitive verbs with two objects (give, award, grant) yield two possible passives: the court awarded the plaintiff costs becomes either the plaintiff was awarded costs or costs were awarded to the plaintiff. Third, pronouns shift case: the subject pronoun he in the active becomes the object pronoun him after by in the passive.
Converting Active to Passive: A Reliable Procedure
Exam questions almost always ask for transformation in one direction or the other, and a mechanical procedure prevents slips. To turn an active sentence passive, follow four steps. Step one: move the object of the active verb to the front as the new subject. Step two: change the verb to be in the same tense plus the past participle. Step three: move the old subject to the end behind by, or drop it if it is unknown or unimportant. Step four: adjust pronoun case and any time or place words.
Worked example: The Magistrate (subject) recorded (verb, simple past) the confession (object) becomes The confession (new subject) was recorded (was + past participle) by the Magistrate (by-agent). A present-perfect example: The legislature has amended the section becomes The section has been amended by the legislature. A modal example: The court may impose costs becomes Costs may be imposed by the court, where the modal may survives unchanged and only be impose — corrected to be imposed — carries the participle.
Certain sentence types need special handling. Imperatives (file the affidavit) become let the affidavit be filed or, in legal register, the affidavit shall be filed. Questions keep their interrogative word order: who signed this deed? becomes by whom was this deed signed? Verbs of perception and causation with bare infinitives recover the to: the court made him pay becomes he was made to pay. These patterns recur in objective papers, and the safest defence is the four-step drill applied slowly.
Converting Passive to Active, and Spotting the Hidden Agent
The reverse transformation is harder because the passive may have deleted the agent, leaving nothing to make the new subject. When the by-agent is present, the conversion is mechanical: the appeal was dismissed by the Bench becomes the Bench dismissed the appeal. When the agent is absent, the converter must supply a subject from context or use an indefinite one such as someone, the authorities or one. Thus the file was misplaced becomes, at best, someone misplaced the file — and the very awkwardness of having to invent a doer exposes why the original writer chose the passive.
This exposure is a lawyer’s skill, not merely a grammarian’s. When a draft order states that it has been decided that the licence will be cancelled, the trained reader immediately asks: decided by whom, and cancelled by which authority? Administrative-law challenges frequently turn on exactly this gap, because an order passed by a person not authorised to pass it is void, and the passive voice is the favourite hiding place of the unauthorised. Converting such sentences to the active is a diagnostic test of whether the decision-maker has been validly identified.
The same vigilance governs reported allegations. A complaint that the money was taken is incomplete until the active form the accused took the money can be supported. The relationship between an original statement and its reported form is developed further in direct and indirect speech, where the reporting verb often hides the same agency that the passive hides here.
Voice in Statutory Drafting: shall be punished
Indian penal drafting follows a near-uniform template that splits a section into an active definition and a passive sanction. Section 378 of the Indian Penal Code defines theft in the active voice — whoever, intending to take dishonestly any movable property… is said to commit theft — while Section 379 supplies the sanction in the passive: whoever commits theft shall be punished with imprisonment…. The offender is named (active), but the punisher — the State, acting through a court — is deliberately left in the passive shall be punished. The drafter does not write the court shall punish, because the duty to punish is institutional and impersonal, and the passive expresses that impersonality precisely.
This drafting choice has interpretive consequences. Because penal provisions are construed strictly, the Supreme Court in Tolaram Relumal v. State of Bombay (1954) held that where a penal provision admits of two reasonable constructions, the court must lean towards the one that exempts the subject from penalty rather than the one that imposes it, and any ambiguity is resolved in favour of the accused. The passive shall be punished formula concentrates attention on the active definitional clause, because it is there that the conduct attracting penalty is fixed; the punishment clause merely follows once the active conduct is proved.
Modern plain-language reform movements have questioned the habitual passive of older statutes. The United Kingdom’s Tax Law Rewrite Project (1996–2010) re-drafted entire taxing Acts to prefer the active voice and to name the actor — the taxpayer, the officer — so that obligations could not hide behind tax shall be charged. Indian drafting manuals echo the caution: use the passive where the doer is the State or is genuinely immaterial, but prefer the active where a specific person owes a specific duty, so that the reader can always answer who must act?
Passive Constructions and the Location of Mens Rea
Whether a statute requires a guilty mind often depends on how its verbs are voiced. Where a section is drafted in the active voice around a doer who knowingly or dishonestly acts, the mental element travels with the named actor. Where the section is drafted in a flat passive — no person shall be in possession, goods shall not be brought into India — the actor recedes and the question arises whether knowledge is still required.
The leading authority is State of Maharashtra v. Mayer Hans George (1965) 1 SCR 123, where a passenger carrying gold in transit through Bombay was prosecuted under the Foreign Exchange Regulation Act and a Reserve Bank notification framed in impersonal, regulatory terms. The Supreme Court held that although mens rea is presumed to be an ingredient of every statutory offence, that presumption can be displaced by the language, subject-matter and object of the statute, and that the regulatory, almost passive scheme of FERA — designed to prevent smuggling — excluded the need to prove knowledge of the notification. The impersonal drafting was itself part of the reason the Court read the offence as one of strict liability.
The lesson for the aspirant is that voice is a signal, not a switch. A passive, agent-less prohibition tends to support strict liability, while an active clause built around a culpable verb tends to require mens rea. But the signal is always read together with the statute’s purpose, as Mayer Hans George itself insists. Reciting the rule without the qualification is the commonest mistake in mains answers on this point.
Voice, Presumptions and the Burden of Proof
The Evidence Act allocates burdens through verbs whose voice and mood do real work. Section 4 defines two presumptions by the auxiliary attached to the passive presume: when the Act says the court may presume a fact, the presumption is discretionary and rebuttable; when it says the court shall presume a fact, the court is bound to treat it as proved unless it is disproved. The single change from may to shall, both governing the same passive participle, converts a permission into a command — a vivid illustration of how modality interacts with voice.
Section 114 uses the discretionary the court may presume, permitting but not requiring inferences such as that a man in recent possession of stolen goods is the thief. By contrast, Section 113B, read with Section 304B of the Penal Code, uses the mandatory the court shall presume that an accused caused a dowry death once cruelty soon before death in connection with a dowry demand is shown. Because the verb is shall presume in the passive-receptive sense, the evidential burden shifts to the accused to rebut, and courts have repeatedly stressed that the obligation is mandatory, not optional.
Section 105 deploys the same device against the accused who pleads a General Exception: the burden of proving the exception is upon him, and the court shall presume the absence of such circumstances. Here the mandatory passive presumption starts the accused at a disadvantage that only his evidence can dislodge. In each instance the legally operative word is a passive participle governed by a modal, and a candidate who cannot parse shall be presumed cannot explain where the burden lies.
When Courts Refuse to Be Trapped by the Form of the Verb
Although voice is a powerful signal, courts do not let grammatical form defeat legislative intent. In Nathi Devi v. Radha Devi Gupta, the Supreme Court warned that giving words a purely literal sense, regardless of context, may do violence to the legislative intent and render a provision illusory and nugatory; the duty of the court is to ascertain the true meaning, reading the provision as a whole. A passive or impersonal construction will therefore be read down or supplemented where a literal reading would frustrate the Act’s evident purpose.
At the same time, the court will not rewrite a provision under the guise of construction. The doctrine of casus omissus — that a matter omitted from a statute cannot be supplied by the court — restrains a judge from inventing an actor that the legislature chose to leave unnamed in a passive clause. The two principles meet in a familiar tension: the passive hides the doer, purposive interpretation may seek to find one, but the casus-omissus restraint forbids the court from manufacturing a doer the statute never contemplated. Voice analysis sets up the problem; the canons of interpretation resolve it.
For answer writing, the safe formulation is this: the voice of a statutory verb is the starting point for asking who must act and who bears the consequence, but it yields to purpose where the literal reading is absurd, and it is checked by the rule against supplying omissions. Citing Nathi Devi for the purposive limb and the casus-omissus rule for the restraining limb shows examiners a candidate who can hold two ideas at once.
Voice in Pleadings, Charges and Judgments
Drafting practice has firm conventions about voice. A charge under the Code of Criminal Procedure must state the offence and the accused’s role with precision, and is therefore written in the active voice wherever the accused is the doer: that you, on or about…, committed murder by causing the death of…. Writing the charge passively — that the deceased was caused to die — would obscure the very agency the charge exists to fix, and could render it defective for failing to bring home the act to the accused.
A plaint and written statement likewise favour the active voice for the material facts, because the plaintiff must allege who did what, and vague passives invite an order to furnish better particulars. The passive is reserved for facts where the doer is genuinely unknown or immaterial (the suit property was attached in earlier proceedings). A judgment mixes the two deliberately: findings of fact are stated actively to fix responsibility (the accused fired the shot), while the operative decretal portion is often passive and impersonal (the appeal is dismissed, the conviction is set aside), mirroring the institutional voice of the court itself.
The agreement traps that voice creates must also be watched. When the active object becomes the passive subject, the verb must agree with that new subject in number, an issue treated fully in subject-verb agreement. The documents was filed is wrong because the plural subject documents demands were filed; the error is easy to make precisely because the writer is concentrating on the participle rather than the new subject.
The Stylistic Case for the Active Voice
Beyond doctrine, every modern guide to legal writing urges the active voice as the default. The active is shorter, because it omits the auxiliary be and the preposition by; it is clearer, because it names the actor; and it is more forceful, because the reader meets the doer before the deed. The court rejected the contention is crisper and more candid than the contention was rejected by the court. In long judgments and opinions, a steady diet of passives produces the grey, evasive prose that examiners penalise and judges criticise.
Yet the passive is not a vice to be exterminated. It is the right choice when the doer is unknown (the file was tampered with), when the doer is obvious or immaterial (the accused was produced before the court), when the focus belongs on the recipient (the victim was denied bail’s benefit — better, the victim was denied relief), or when continuity of theme requires keeping the same subject across sentences. Good legal writers choose voice for emphasis and honesty, not by reflex.
The discipline, then, is selective. Prefer the active for material facts, duties and findings, where the reader must know who acts. Use the passive consciously where concealment of the agent is legitimate or where the recipient is the true topic. Reread every passive and ask whether the missing agent is missing for a good reason or merely missing — the same question a court asks of an impugned order. This editorial habit converts an abstract grammar rule into a working tool of advocacy.
Common Errors in Voice for Examinees
Several recurring mistakes cost marks in objective papers. The first is making intransitive verbs passive: there is no passive of the witness lied or the parties arrived, because these verbs take no object. A second is the wrong participle: irregular verbs trip candidates who write was breaked for was broken or was casted for was cast. A third is tense drift, where the auxiliary be is put in the wrong tense, turning a past event into a present one; this is why voice cannot be learned apart from tenses.
A fourth error is the dangling or wrong agent preposition — writing the order was passed with the Collector instead of by the Collector, or omitting the agent where the question requires it. A fifth is failing to shift pronoun case, producing the deed was signed by he for by him. A sixth, peculiar to legal writing, is the double passive (it is sought to be contended that…), a turgid stack of passives that obscures who is contending what; examiners and appellate courts alike dislike it.
The most consequential error is treating voice as cosmetic. In an answer on the burden of proof, mis-reading shall be presumed as may be presumed reverses the legal result. In an answer on penal construction, ignoring the active definitional clause in favour of the passive punishment clause misplaces the conduct that the section actually punishes. Voice errors in law are not stylistic blemishes; they are mistakes about who is liable and who must prove what. For systematic revision, return to the English for Judiciary hub and pair this chapter with the grammar foundations it depends on.
Exam Strategy: Drilling Transformation Under Time Pressure
Voice appears in two guises in judiciary papers: standalone transformation questions in the language section, and embedded interpretation questions in substantive papers. For transformation, internalise the four-step drill until it is automatic, then practise the awkward categories — imperatives, questions, two-object verbs, and bare-infinitive causatives — because examiners cluster their hard marks there. Time yourself: a clean transformation should take under thirty seconds once the drill is reflexive.
For interpretation questions, train yourself to flag every shall be, may be, is deemed to be and shall be presumed as you read a provision, and to ask in each case who the hidden actor is and what the modal does to the duty. Keep a short stock of verified authorities — Tolaram Relumal for strict construction, Mayer Hans George for the link between impersonal drafting and strict liability, and Nathi Devi for purposive limits on literalism — so that a grammar point can be elevated into a doctrinal one. Always state the citation only as far as you are sure of it; a confidently wrong cite costs more than a cautious correct one.
Finally, write the way the topic teaches. Make your own answers a model of considered voice: active for the rule and its application, passive only where the doer is the State or is genuinely immaterial. An examiner who sees a candidate practising clean voice in the very answer that explains voice is reading a candidate who has understood the chapter rather than merely memorised it.
Frequently asked questions
What is the basic structure of a passive-voice verb in English?
Every passive verb is a form of the auxiliary be followed by the past participle of the main verb, optionally completed by a by-agent. The tense of be fixes the time (was written, will be written, has been written), while the participle carries the meaning. Only transitive verbs — those with an object to promote to subject — can be made passive.
Why do penal sections like Section 379 IPC use the passive shall be punished?
The drafter splits the section into an active definitional clause that names the offender (whoever commits theft) and a passive sanction clause (shall be punished) that deliberately leaves the punisher impersonal, because the duty to punish belongs to the State acting through a court, not to any named person. Because penal provisions are strictly construed, as in Tolaram Relumal v. State of Bombay (1954), ambiguity in such clauses is resolved in favour of the accused.
How does voice affect whether mens rea is required?
A flat, agent-less passive prohibition tends to signal strict liability, while an active clause built around a culpable verb tends to require a guilty mind. In State of Maharashtra v. Mayer Hans George (1965) 1 SCR 123, the Supreme Court held that the presumption of mens rea can be displaced by the language, subject-matter and object of a statute, and that FERA’s impersonal regulatory scheme excluded the need to prove knowledge. Voice is a signal read together with purpose, not a switch.
What is the difference between shall presume and may presume in the Evidence Act?
Under Section 4, may presume is discretionary — the court may treat a fact as proved or call for proof — while shall presume is mandatory: the court must treat the fact as proved unless it is disproved. Both govern the same passive participle, so the change from may to shall alone converts a permission into a command, as in the mandatory presumption of dowry death under Section 113B read with Section 304B IPC.
When should a lawyer prefer the active voice in drafting?
Prefer the active voice for material facts, duties and findings — anywhere the reader must know who acts. A charge, a plaint’s material allegations and a judgment’s findings of fact are written actively so that agency is fixed. Reserve the passive for situations where the doer is genuinely unknown or immaterial, or where the recipient is the true topic. Modern reforms such as the UK Tax Law Rewrite Project pushed statutes towards the active voice for exactly this clarity.
How do I convert a passive sentence with no stated agent back to active?
When the by-agent is missing, supply a subject from context or use an indefinite one such as someone, the authorities or one; the file was misplaced becomes someone misplaced the file. The awkwardness of inventing a doer is itself diagnostic: in administrative law an order that hides its decision-maker behind the passive (it has been decided that the licence will be cancelled) invites a challenge that the authority was never validly identified.