Context
In a highly unusual move, a nine-judge Bench of the Supreme Court resorted to a non-speaking order as it ruled affirmatively on the preliminary issue arising out of the Sabarimala review petition.
Departure from norms
- The importance of a ‘reasoned decision’ in a constitutional democracy committed to the rule of law, is self-evident.
- Its importance cannot be overstated and this curious departure from the norm merits close analysis.
- Time and again, the Supreme Court has unequivocally endorsed and underlined the requirement of giving reasons in support of the order.
- The SC has often chastised subordinate institutions for their failure to supplement their orders with reasons.
Importance of ‘reasoned decision’
- The juristic basis for the ‘reasoned decision’: The juristic basis for this has also been explored in a number of cases.
- In various decisions, the court has ruled that speaking orders promote-
- Judicial accountability and transparency.
- Inspire public confidence in the administration of justice; and
- Introduce clarity and minimise the chances of arbitrariness.
- Quotes from various judgements: In addition to being a “healthy discipline for all those who exercise power over others”, recording of reasons has been described by the Supreme Court as the “heartbeat of every conclusion”; the “life blood of judicial decision making”; and a cherished principle of “natural justice”.
- The Madhya Pradesh Industries Ltd case: In this case Justice Subba Rao K. stated:
- “The condition to give reasons introduces clarity and excludes or at any rate minimises 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 bound… Speaking order will at its best be reasonable and at its worst be at least a plausible one.”
Devaluation by the SC and implications
- Implicit rules: The need for a court to provide an intellectual substrate for its decisions is also implicit in the expression “pronounce judgment” in Supreme Court Rules, 2013.
- According to settled decisions, the same signifies “judicial determination by reasoned order”.
- However, when it came to applying the principle to its own verdict, the apex court has inadvertently devalued the importance of concurrent reporting of reasons.
- The court seems to have downplayed the fact that it may be coming across as inarticulate at best and indecisive at worst.
- Undermining integrity: Besides undermining institutional integrity, a decision’s authority as a binding precedent is also potentially compromised by this omission.
Culture of justification
- The term “transformative constitutionalism” has recently found currency in constitutional adjudication (Navtej Joharand Joseph Shine).
- The Supreme Court is yet to articulate a comprehensive theory of the concept but it has been fleshed out in other jurisdictions.
- From authority to justification: For example, Pius Langa, former Chief Justice of the Constitutional Court of South Africa, argued that “transformative constitutionalism” entails a transformation of legal culture from one “based on authority” to the one “based on justification”.
- Karl Klare (the scholar who coined the term) posited that it may be legitimately expected of constitutional adjudication to “innovate and model intellectual and institutional practices appropriate to a culture of justification”.
Conclusion
In light of the above, it can be concluded that the practice of issuing non-speaking orders and giving post-hoc rationalisations later is an anathema to the principle of constitutional governance. Duty to give reasons is an incident of the judicial process and constitutional justice should not be a matter of afterthought.
