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.
What is a non-speaking order?
It is an order that is not a speaking order, that is the reasons for the findings are not given. A case is summarily dismissed or the judgment is passed without a discussion on the background thereof, reasons and clear findings.
The Supreme Court recently gave a non-speaking order saying that it was not hearing pleas seeking review of a 2018 judgment allowing women and girls of all ages to enter Kerala's Sabarimala temple and would rather deal with larger issues like female genital mutilation, including the extent to which the courts can intervene in "particular religious practices".
A non-speaking order or order without proper reasons being spelled out would be bad in law and would be liable to be quashed.
- In various decisions, the Supreme Court has ruled that speaking orders promote “judicial accountability and transparency”; “inspire public confidence in the administration of justice”; and “introduce clarity and minimize the chances of arbitrariness”.
- Supreme Court Rules, 2013 signifies “judicial determination by reasoned order”.
- Rajasthan High Court stated the importance of well-reasoned orders was considered from the perspective of the litigant, the higher courts and the society.
- 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”.
- In Navtej Johar v. Union of India, the court held that Transformative Constitutionalism is considered to be one of the objectives of adopting a Constitution itself.
- The rights that are guaranteed as Fundamental Rights under our Constitution are the dynamic and timeless rights of ‘liberty’ and ‘equality’ and it would be against the principles of our Constitution to give them a static interpretation without recognizing their transformative and evolving nature.
The Supreme Court’s role as the custodian and interpreter of the Constitution has enabled it to bring about these changes, combined with the growing recognition of the Indian Constitution as a transformative, rather than rigid, document.
About ‘Transformative Constitutionalism’
- It envisages the attainment of substantial equality by recognizing and eliminating all forms of discrimination as they may have existed or may develop in the future;
- It calls for a realization of full human potential within positive social relationships.
Difference between Constitutionalism and Transformative Constitutionalism
- For example, US constitutionalism does not entrust the federal state with the task of bringing about a more just and equal society.
- In the Global South countries like India and South Africa, the states play an activist role.
- This is because of the highly divided society and acute lack of resources persisting in these countries like India and South Africa that they have constitutions aimed at equality and justice.