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Error of judgment
February, 27th 2008

While the Supreme Court has faulted high court judgments, it has had to revise one of its own. 
Though procedural laws have set the norms for writing judgments, very often these rules are ignored by the judges themselves. This lapse makes it difficult for lay readers and even lawyers to fully understand the decision. It seems even the Supreme Court has such a problem, if one reads some of its recent judgments. 
In half-a-dozen judgments in recent weeks, the Supreme Court lamented that several high courts were passing orders without providing the facts of the disputes, analyses or reasons for arriving at the decision. In technical parlance, they are called non-speaking orders. The problem is that when the decision is appealed against, the higher court has no clue as to what had happened in the court below. 
Last week, the Supreme Court observed in a criminal appeal from Jharkhand, Sunil vs Rajesh Das, that a bare reading of the high court order showed that there has been no analysis of the evidence or any reason given. The abrupt conclusions arrived at show non-application of mind, the Supreme Court said. Citing eminent judges, the Supreme Court emphasised that the giving of reasons is one of the fundamentals of good administration and failure to give reasons amounts to denial of justice. Reasons substitute subjectivity by objectivity. The right to reason is an indispensable part of a sound judicial system. A judgment without reasons is like the inscrutable face of the Sphinx and confounds the appellate courts. Moreover, the affected party must know why the decision has gone against him. 
The Supreme Court sarcastically remarked about a recent judgment of the Karnataka high court, in B Vishwanath v State, that it had only one characteristic: brevity. There was no indication in the order as to whether the appeal was dismissed or allowed. Only certain directions were given to the Home Secretary. When this was pointed out to the high court judge, he listed the matter again for being spoken to and it was observed that for the reasons and discussions made, the case was dismissed. This is not the appropriate way to dispose of a case, the Supreme Court said. 
Two judgments of the Punjab and Haryana high court also suffered from similar defects. In Mangat Ram vs State of Haryana, the Supreme Court observed that it would be desirable if all the courts in the country, including the high courts, kept in mind that final orders should be passed only after recording reasons in support of them. This plea was repeated a few days later in Ran Singh vs State of Haryana, State of Rajasthan vs Rohitas and in Jagtamba Devi vs Hem Ram (from the Himachal Pradesh high court). 
In a sensitive case involving the 2002 communal rights, the Gujarat high court passed bare orders and declared that reasons would follow. On appeal, the Supreme Court chided the high court for doing so, wondering what was the reason for the hurry to pass the orders without reasons. 
The exception to the rule is the Supreme Court itself. It need not give reasons, as according to it, its orders are final and there is no further appeal. The Supreme Court has justified this position in State of Punjab vs Jagdev Singh Talwandi (1984). 
In fact, the Supreme Court has often stretched the virtue it preaches to excess by giving reasons in reams, a sure symptom of logorrhea. When a 1,200-plus page judgment was delivered in the Judge Transfer case in the 1980s, the late Palkhivala commented that the learned judges should write concise orders considering the shortness of human life. 
Last week, the Supreme Court had to delete a large part of a judgment delivered by one of the brethren which went off at a tangent. In Som Mittal vs Government of Karnataka, the issue was whether the managing director of HP Global Soft Ltd could be prosecuted for violation of the Karnataka Shops and Establishments Act. However, one of the judges wrote more than 20 paragraphs referring to the absence of a provision for anticipatory bail in Uttar Pradesh. He asked the state government to pass a law to fill this lacuna and ordered that the copy of his judgment should be sent to the Secretary General of the Supreme Court and all state governments. 
Since his brother judge in the division bench did not agree to all these, the matter was referred to a larger bench. A bench headed by the Chief Justice then clarified that the controversial directions by the judge were only an aside, being an expression of hope of an individual judge and they had no binding value. This may not be the last such episode, as the Supreme Court, though final, it is not infallible.

M J Antony

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