"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.
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 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
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.
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
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:
- When the party aggrieved claims that the order passed by the authority
in the case is erroneous
- The record of reasons operate as a deterrent against the similar cases
- 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.
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
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. 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.
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.
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.
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
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.
In some other cases as well the
non-speaking order of the lower court is quashed. 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.
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.
However, when the reasons are
not recorded in the judgment, then the non-recording of the reasons will have
The following may be the effects of non-speaking orders:
- 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.
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.
- 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
- 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, where it is held that proper reasoning leads to
clarity, and at the same time, it reduces at some of the other rate
- 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.
- No satisfaction of the party against whom the order is passed:
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.
- 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. 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
- CIT v. Walchand co. Ltd. AIR 1967 SC 1435
- Liberty Oil Mills v. UOI 1984 3 SCC 465.
- Siemens Engg & Co. of India Ltd v. UOI 1976 2 SCC 981.
- Union of India v. E.G. Nambudiri 1991 3 SCC 38: AIR 1991 SC 1216.
- S.N. Mukherjee v. UOI 1990 4 SCC 594; AIR 1990 SC 1984
- Hochtief Gammon v. State of Orissa, 1975 2 SCC 649.
- Mahindra & Mahindra Ltd vs. U.O.I AIR 1979 SC 698: (1979) 2 SCC 529.
- Madhusudan Paswan v. State AIR 1989 Pat 106.
- Shri Sachidanand Padey v. State of West Bengal Air 1987 SC 1109. 2 SCC
- Tripathi case. AIR 1984 SC 273 (LNIND 1983 SC 283).
- Madhya Pradesh Industries Ltd v. Union of India And Others 1966 AIR 671
SCR (1) 466.