A judge who silently listens without making any comments is a challenge to the skill and patience of the arguing counsel. He drops no clue as to what goes on in his mind. A worse scenario is when he writes a terse order without discussing the strenuous arguments made before him.
This happens more often than we would like to believe. In four judgments in as many weeks, the Supreme Court criticised the high courts for not following the norms for writing judgments.
Absence of reasons in a judgment baffles not only the litigants who want to file an appeal but also the Supreme Court judges who are called upon to examine the high court ruling. Moreover, if a judgment does not contain reasons, it would lead to suspicion in public mind that the judges who wrote it did not understand the issues, were careless, whimsical or were swayed by other considerations. Natural justice is a basic principle of law, which enjoins upon the court to hear both sides diligently and give a reasoned order.
Owing to the recurrence of such “non-speaking” orders, as they are called, the Supreme Court last week devoted some 20 pages of its judgment in the Assistant Commissioner vs Shukla & Brothers case, to emphasise the importance of reasons. In this case, the Rajasthan High Court had dismissed the revision petition of the revenue department by a one-line order. It appealed to the Supreme Court alleging that the high court had not recorded reasons for such summary dismissal of its petition without answering the questions of law formulated for its consideration.
The Supreme Court found substance in the argument and remitted the matter to the high court for reconsideration, followed by a speaking order. It acknowledged that the increasing institution of cases in all courts in the country is casting a heavy burden on them. “Despite that, it would be neither permissible nor possible to state as a principle of law that while experiencing the power of judicial review, particularly by the high courts, providing of reasons can be dispensed with.”
There are at least three arguments for following the principle of natural justice scrupulously. The rule applies not only to courts but also to all administrative authorities. The judgment said that firstly, a person against whom an order is required to be passed or whose rights are likely to be affected must be granted an opportunity of being heard. He has a legitimate expectation to know the reasons for rejection of his contentions and evaluate the grounds for turning down his prayers. Secondly, the authority concerned should provide a fair and transparent procedure. Finally, the authority concerned must apply its mind which should be reflected in a reasoned order. “Reason,” the judgment reiterated, “is the soul of orders.”
In another judgment last week, Asst Commercial Tax Officer vs Kansai Nerolac Paints, the court remitted the case to the high court as its judgment had not given reasons for its conclusion. In yet another ruling, Secretary & Curator vs Howrah Nagrik Samity, the court commented: “Reason is the heartbeat of every conclusion. It introduces clarity in an order and without the same, it becomes lifeless. Reasons substitute subjectivity by objectivity. Absence of reasons renders the order indefensible/unsustainable, particularly when the order is subject to further challenge before a higher forum.” The court ordered a review of the Calcutta High Court judgment in this case.
A senior citizen recently wrote to an individual judge of the Rajasthan High Court complaining that certain conditions imposed by Air India (AI) for getting concessional fares were arbitrary. The court turned the letter into a public interest litigation (Union of India vs Shankar Lal) and issued notice to AI, Jet Airways and the Railways. Then it quashed the conditions. The government appealed to the Supreme Court which found that the high court judgment had not given the reasons for its order and “appeared to proceed on the basis of its subjective satisfaction”.
Procedural laws elaborately explain how to write a judgment. Order 20 Rule 4 of the Civil Procedure Code says that judgments shall contain a concise statement of the case, points for determination, the decision thereon and the reasons for such decision. The Criminal Procedure Code devotes the whole Chapter 27 to the procedure and contents of delivering judgments. High court judges can follow them, but need not go to the other extreme either, and write judgments running to a hundred printed pages, as some Supreme Court judges are tempted to do.