Context: A nine-judge Bench of the Supreme Court has recently passed a non-speaking order, which is defined as an order in which reasons for ruling are not provided.
Importance of speaking order (order with recorded reasons):
Supreme Court has itself said that orders should be supported by recorded reasons. It has also criticized subordinate institutions for not supporting orders with recorded reasons. Orders with recorded reasons promote accountability and transparency in decision making and delivery of justice. It also increases the confidence of people in justice delivery. Justice Subba Rao K. in Madhya Pradesh Industries Ltd case has said that it lowers arbitrariness. Supreme Court has called giving reasons as life blood of judicial decision making and a principle of natural justice. Orders provided with reasons ensure the accountability of the Judiciary in a democracy. They keep a check on Judiciary and maintain its credibility in the eye of Public as courts refer to appropriate constitutional provisions, precedents, principles while recording reasons. Orders without reasons create wrong precedents and unsettle law and legal process.
Criticism of non-speaking order (order without recorded reasons):
Supreme Court has not applied its own principle in passing a non-speaking order. The recent passing of non-speaking order by the Supreme Court lowers the importance of such orders in a democracy. Passing of order without recorded reasons may harm the legitimacy and authority of the Court. The order will also negatively affect future cases by establishing a wrong precedent in the judicial history of India. In Navtej Singh Johar v. Union of India case, the Supreme Court has applied the concept of transformative constitutionalism. This term was created by Karl Klare. The term is about change in opinion and attitudes of laws and legal institutions from being authority-based to justification based. The non-speaking order is not in line with the concept of transformative constitutionalism.
Recently, a non-speaking order was passed by the nine-judge Bench of the Supreme Court. What do you understand by the terms speaking order and non-speaking order? (150 words)
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Powers of Supreme Court as a court of record:
Supreme Court has following powers as a court of record.