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.

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