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Speaking Orders: Reasoned Decision

"Nemo debet esse judex in propria causa" and "Audi alterem partem" are two pillars of natural justice. Speaking order or reasoned order is considered the third pillar of natural justice. A reasoned decision is called a reasoned decision because it contains reasons of its own in its support. When the adjudicating body provides the reason behind their decision, the decision is treated as the reasoned decision.

It is also called the speaking order. In such ways, the order speaks for itself in such a way that it tells a reasonable story of its own. Speaking orders are essential for judicial review. The party or the parties must know why and on what grounds an order has been passed against him. This is the new principle of natural justice that has been recognized in India and the USA, but it is yet to be recognized under English law.

The expression speaking order was first mentioned by Lord Chancellor Earl Cairns. While explaining the ambit of Writ of certiorari, referred to orders with error on the face of the record and pointed out that the order with error on its face, is a speaking order.

Speaking order introduce fairness in the Administrative power. it helps in minimizing arbitrariness and excluding to the extent it can. It maintains the right for reason as what is the reason behind any order, which is an indispensable part of a sound judicial system. it is the best practice of good administration.

In India, the judicial system has tended to record reasons the practice shows that, even in administrative practice or decision, if such decision affect anyone prejudicially. A quasi-judicial authority must record its reasons in support of its conclusion. The purpose of recording the reasons is to serve the wider aspect of the principle of justice that justice must not only be done it must also appear to be done as well. Reasons do reassure that discretion has been exercised by the decisions maker on the relevant grounds and by disregarding extraneous consideration.

Reasons facilitate the process of judicial review by superior courts. In the present time, all the countries and their judicial trend commit to the rule of law and constitutional governance is in favor of reasoned decisions based on relevant facts. This justifies the principle that reason is the soul of justice. The dependency or suggestion of reason is a requirement for both judicial accountability and transparency.

If a judge or quasi-judicial authority is not random or impartial about his or her decision-making process then it is certainly affected with the partialness and is impossible to know whether the person deciding is faithful to the doctrine of precedent or to principles of incrementalism.

It cannot not be questioned that transparency is the sine qua non of restraint on abuse of judicial powers. Transparency in decision-making is also important in making judges less prone to errors but also maintaining border scrutiny. In common law-abiding countries in their jurisdictions, judgments play a vital role in setting up precedents for the future. Therefore, for the development of law, the requirement of giving reasons for the decision is of the essence and is virtually a part of "due process".

Recording Of Reasons

If it is expressly mentioned in a statute for reasons of the order, then it is considered a statutory requirement and it's mandatory. But in the cases of no expressed provisions, then it is an important necessity for the quasi-judicial authority to record the reasons. Reasons act as a bridge between the material facts on which the respective conclusion is made and the actual order passed. The record of reasons helps in understanding the rationale nexus that's been between the facts and the conclusion reached. Recording of reasons says that the decisions made are just and reasonable.

The grounds on which the record of reasons are important:

  1. When the party aggrieved claims that the order passed by the authority in the case is erroneous
  2. The record of reasons operate as a deterrent against the similar cases
  3. For the satisfaction of the parties and other authorities while reviewing the order passed. If the order passed is appealed, the appellate court requires to understand what reasons weighted for the decision otherwise such decision which is not recorded becomes deprecated.[1]
Every action of state or judiciary must satisfy the non-arbitrariness of the situation; hence the record of reasons should act as the passage in understanding even in the absence of a statutory provision for such record of reasons.

Form For Recording The Reasons:

The order passed and its reasoning by the authority must be proper, relevant, in accordance with the arguments raised and questions of law asked, and the coordination between the reasons and the final conclusion. The body of the reasons is the discretion of the authority and manner that is not improper according to a reasonable person.

Non-existence and non-communication of reasons: No order or action can be exercised without the existence of reasons. The communication of reasons is required while passing an order unless non-communication is justified in the public interest or like cause. But an order passed without the existence of a reason is arbitrary and unreasonable and is liable to be set aside. An order can be passed along with the expression "without assigning any reasons" implying that there is an existence of reasons but not communicated.[2] Such non-communication can be based on public policy.

Whether A Part Of Natural Justice?

If recording reasons are a part of natural justice is a difficult and controversial question. The two principles of Natural Justice i.e. nemo debet esse judex in propria causa and audi alteram partem are foundational and fundamental of natural justice. The principles of natural justice are made for achieving the desired justice in each case. In many cases, the Recording of reasons by the Quasi-Judicial authorities for the order passed is represented as the third rule of Principles of Natural Justice.[3]

Also in a few cases, it was contended and held that the principles of natural justice do not create any implied duty on administrative authority to state the reasons for the decision made and no decision of such authority can be held illegal merely on account of non-recording of reasons.[4]

Later in the other cases, the substantial question of law was raised asking whether the recording of reasons in accordance with the order passed is one of the principles of natural justice?. In furtherance to the present cases and in the view of expanding scope in the judicial and quasi-judicial authorities and the principles of natural justice, the requirement of recording the reasons for the conclusions reached and orders passed can be regarded as an important part of natural justice.[5]

Adequacy Of The Reasons:

When an order is passed an appeal in a higher court, such court exercises the power of judicial review. To the appellate court to decide if to interfere with the order passed by the authority, it must review the order passed. And if the said order and the reasons in its support that have been challenged in the appellate court prove to be proper, legal, relevant, and intelligible, the court makes no interference with the order passed.

Doctrine of Justiciability:

The recorded reasons are subject to judicial scrutiny. As against the arbitrary exercise of power by the adjudicating authority, this doctrine stands as an important safeguard. If the reasons recorded in support of the conclusion reached are found to be unclear or irrelevant or incorrect, such order passed by the authority may be set aside.

Hence, the reasons recorded must not just be read in letter and spirit but also must be clear, explicit, and intelligible in order to show that they have considered the material facts and other relevant facts before coming to the conclusion.[6]

Non Recording Of Reasons

As already discussed the speaking orders, now, well shall discuss the situations where the reasons in the judgment are not recorded, i.e., non-speaking orders. Usually, the question as to what the court should do when it is facing a non-speaking order is discussed at great length in certain cases. In some cases, the decree is declared null and void, because it suffers from an error of law apparent on the face of the record itself.[7]

In some other cases as well the non-speaking order of the lower court is quashed.[8] But this is not the case all the time. Sometimes, a contrary order is also passed. For example, the court may gather the reasons by looking into the total facts and the entire series of events and/ or may also gather the reasons from the impugned adjudicative order, even though the reasons are not stated in the judgment.[9]

Similarly, in another case, the Apex court of India upheld an order of a lower court that allowed the dismissal of an employee by a statutory corporation notwithstanding the fact that the reasons are not mentioned in the judgment. The court said that the reasons were implied in the order and are appeared from the bare reading of the order of the said case.[10]

However, when the reasons are not recorded in the judgment, then the non-recording of the reasons will have some effects.

The following may be the effects of non-speaking orders:

  1. No accountability and transparency:
    When the reasons are not recorded, the reason why the judge came to a certain conclusion will not be made known. Then, there will be no scope for accountability and transparency. The judge cannot be held accountable for the wrong decisions taken.
  2. Corruption:
    When the reasons are not mentioned, there will be scope for corruption. The judges are more prone to take corrupt decisions as they don't even reason it.
  3. Reduce the clarity:
    when the reasons are not mentioned, then it will lead to a reduction in the clarity. When reasons are not mentioned, then people and the executing authority may not know how to execute a decree. When any kind of question arises, then that can not be solved, while it could have been solved easily, when the judges have mentioned the reasons why they arrived at such a conclusion.
  4. Chances for arbitrariness:
    when the reasons are not mentioned, there is huge scope for arbitrariness. The same is held in the case of Madhya Pradesh Industries Ltd Case[11], where it is held that proper reasoning leads to clarity, and at the same time, it reduces at some of the other rate arbitrariness.
  5. Lead to errors:
    When the conclusion is reasoned, then while the judge is reasoning, he will know who he himself arrived at the conclusion. In case there are any errors when he arrived at the conclusion that would be rectified if he reasons out the judgment. A judge should be very careful and mindful when giving a judgment, because, this judgment will not only have a great impact on the parties themselves but will have a great impact on future judgments also because they act as precedents in India.
  6. No satisfaction of the party against whom the order is passed:
    When the reasons are not mentioned in the judgment, the party against whom the judgment is passed will not know the grounds why the judge sees the case to be against him. When coming to the party in whose favor the judgment is passed, then, they may not really bother about the content unless they are aggregated by that. So for the sake of the party against whom the judgment is passed, it is essential that the grounds or reasons for the judgment be clearly mentioned. The party against whom the judgment is passed will have a sense of satisfaction when they get to know the reasons why the judgment is passed against them[12].
  7. Interference with the powers of Supervisory court:
    When proper reasoning is mentioned, then it will be easy for the supervisory court or the superior court to keep the tribunal within the bound.[13] If proper reasoning is not mentioned, then, it will again be a tedious task for the court to look into the whole matter in case of any matters to be inquired into. But, if proper reasoning is mentioned, this task may be eliminated, if it can be found out that, on the bare reading of the judgment that the court which delivered the judgment exceeded its power.

The speaking order becomes an obligation if statutes require them to record reasons; it becomes the obligation for the authority. The reason shall be recorded in normal practice as well even if the statues don't expressly lay down. Recording reasons is the dutiful responsibility and this cannot be discharged by the use of vague general words.

If the order is subject to appeal or revision the recording of reasons becomes all-important and failure to disclose the same becomes depriving the party of his right to appeal. By concluding the discussion, in Y.V Chandrachud (then in Maneka Ghandi case), the reasons, if disclosed, being open to judicial scrutiny for ascertaining their nexus with the order impounding the passport, the refusal of disclosing the reasons would equally be open to the scrutiny of the court; or else the wholesome power of a dispassionate judicial examination of executive orders would, with impunity, be set at naught by an obdurate determination to suppress the reasons, the law cannot permit the exercise of a power to keep the reasons undisclosed if the sole reason for doing so is to keep the reasons from judicial scrutiny.

  1. CIT v. Walchand co. Ltd. AIR 1967 SC 1435
  2. Liberty Oil Mills v. UOI 1984 3 SCC 465.
  3. Siemens Engg & Co. of India Ltd v. UOI 1976 2 SCC 981.
  4. Union of India v. E.G. Nambudiri 1991 3 SCC 38: AIR 1991 SC 1216.
  5. S.N. Mukherjee v. UOI 1990 4 SCC 594; AIR 1990 SC 1984
  6. Hochtief Gammon v. State of Orissa, 1975 2 SCC 649.
  7. Mahindra & Mahindra Ltd vs. U.O.I AIR 1979 SC 698: (1979) 2 SCC 529.
  8. Madhusudan Paswan v. State AIR 1989 Pat 106.
  9. Shri Sachidanand Padey v. State of West Bengal Air 1987 SC 1109. 2 SCC 295.
  10. Tripathi case. AIR 1984 SC 273 (LNIND 1983 SC 283).
  11. Madhya Pradesh Industries Ltd v. Union of India And Others 1966 AIR 671 SCR (1) 466.
  12. Ibid.
  13. Ibid.

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