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Maxims “Nemo debet esse judex in propria causa” and “Audi alterem partem” are considered the two limbs of natural justice. Speaking order or reasoned order is considered as the third limb of natural justice.

A reasoned decision is a decision which contains reason in its support. When the adjudicating bodies give reasons in support of their decisions, the decisions are treated as a reasoned decision. It is also called speaking order. In such condition, the order speaks for itself or it tells its own story. Speaking orders are necessary if the judicial review is to be effective. The party affected must know why and on what grounds an order has been passed against him. This is a new principle of natural justice which has been recognized in India and USA, but, however, yet to be recognized under English Law. The expression `speaking order’ was first coined by Lord Chancellor Earl Cairns. While explaining the ambit of Writ of Certiorari, referred to orders with errors on the face of the record and pointed out that order with errors on its face, is a speaking order.

Characteristics of Speaking Order:

• Should contain adequate and sufficient reasons in support decision.
• No particular form of recording is necessary
• Applicable even to Public and Private Law.

Need of Speaking Order:

• It introduces fairness in the administrative powers.
• It excludes or at least minimizes arbitrariness.
• It maintains the right to reasons, which is an indispensable part of sound judicial review.
• It is one of the best practice of good administration.
• It entitles the parties with the reason for the decision apart from the decision itself.
• It gives satisfaction to the person against whom the decision has been given
• It enables the person against whom the decision has been given to examine and use his right of appeal effectively.

General Rules Related to a Speaking Order:

• If the Statutes require recording of reasons, it is the obligation of the Authority to do so.
• Even if the Statutes does not expressly lay down the requirement, reasons shall be recorded.
• The reasons recorded by the statutory authority are always subject to judicial scrutiny.
• Even if the proceedings are confidential, the rule cannot be dispensed with.
• If the order is subject to appeal or revision, the necessity of recording becomes all the more important. Failure to disclose becomes depriving the party of his right to appeal.
• Even ‘fair play in action’ requires recording of reasons.
• There need not be any prescribed format for recording reasons.
• The duty to record reasons is a responsibility and cannot be discharged by the use of vague general words.
• If the reasons are not recorded in the order, it does not always vitiate the action.
• It is not necessary to record reasons by the appellate authority when it affirms the order passed by the lower authority.

Validity of Order:

• If the reasons recorded are totally irrelevant, the exercise of power would be bad and the order is liable to be set aside.
• The validity of the order passed by the statutory authority must be judged by the reasons recorded therein and cannot be construed in the light of subsequent explanation given by the authority concerned or filing affidavit.
• Where the lower authority does not record reasons for making an order and the appellate authority merely affirms the order without recording reasons, the order passed by the appellate authority is bad.
• Where the appellate authority reverses the order passed by the lower authority reasons must be recorded, as there is a vital difference between an order of reversal and an order of affirmation.
• A writ court cannot interfere with order that reasons are inadequate or insufficient.

Case Laws:

In Siemens Engg. & Mfg. Co. of India v. Union of India, AIR 1976 SC 1785 case, the Court held that the rules giving reasons in support of an order is the third principle of natural justice.

In Sunil Batra v. Delhi Administration, (1978) 4 SCC 409 case, the Supreme Court while interpreting section 56 of the Prisons Act, 1894, observed that there is an implied duty on the jail superintendent to give reasons for putting bar fetters on a prisoner to avoid invalidity of that provision under article 21 of the constitution. By this order, the Supreme Court laid the foundation of a sound administrative process requiting the adjudicatory authorities to substantiate their order with reasons and order should contain reasons when they decide matters affecting the right of parties.

In Raipur Development Authority v. Chokhamal Contractors, AIR 1990 SC 1426 case, the Court held that the rule of speaking order should be confined to the realm of the public law or administrative law only.

In Union v. E. G. Nambudiri, AIR 1991 SC 1216 case, the Court held that an order of an administrative authority which is not under a statutory duty to record reasons is not rendered illegal only on account of the absence of reasons supporting its order.

Under the Import (Control) Order, 1955, the government was authorized to certain acts without assigning any reasons. The Supreme Court while interpreting the expression in Liberty Oil Mills v. Union of India, AIR 1984 SC 1271 held that the decision must be communicated to the party, but the reasons for the decision need not be communicated. However such reasons must nevertheless exist.

In Ebrahim Mahmood Akhalwaya v. State Of Gujarat, C/SCA/8703/2014 Case, the High Court put the following observations and principles explaining the need of speaking order:

• In India, the judicial trend has always been to record reasons, even in administrative decisions, if such decisions affect anyone prejudicially.
• A quasi-judicial authority must record reasons in support of its conclusions.
• Insistence on the recording of reasons is meant to serve the wider principle of justice that justice must not only be done it must also appear to be done as well.
• Recording of reasons also operates as a valid restraint on any possible arbitrary exercise of judicial and quasi-judicial or even administrative power.
• Reasons reassure that discretion has been exercised by the decision-maker on relevant grounds and by disregarding extraneous considerations.
• Reasons have virtually become as indispensable a component of a decision making process as observing principles of natural justice by judicial, quasi-judicial and even by administrative bodies.
• Reasons facilitate the process of judicial review by superior Courts.
• The ongoing judicial trend in all countries committed to the rule of law and constitutional governance is in favour of reasoned decisions based on relevant facts. This is virtually the lifeblood of judicial decision making justifying the principle that reason is the soul of justice.
• Judicial or even quasi-judicial opinions these days can be as different as the judges and authorities who deliver them. All these decisions serve one common purpose which is to demonstrate by reason that the relevant factors have been objectively considered. This is important for sustaining the litigants’ faith in the justice delivery system.
• Insistence on reason is a requirement for both judicial accountability and transparency.
• If a Judge or a quasi-judicial authority is not candid enough about his/her decision-making process then it is impossible to know whether the person deciding is faithful to the doctrine of precedent or to principles of incrementalism.
• Reasons in support of decisions must be cogent, clear and succinct. A pretence of reasons or `rubber-stamp reasons’ is not to be equated with a valid decision-making process.
• It cannot be doubted that transparency is the sine qua non of restraint on abuse of judicial powers. Transparency in decision making not only makes the judges and decision-makers less prone to errors but also makes them subject to broader scrutiny.
• In all common law jurisdictions, judgments play a vital role in setting up precedents for the future. Therefore, for development of law, the requirement of giving reasons for the decision is of the essence and is virtually a part of “Due Process”.

Related Topics:

• Introduction to Principles of Natural Justice
• First Principle of Natural Justice: Nemo debet esse judex in propria causa
• Personal Bias
• Pecuniary Bias and Subject Matter Bias
• Second Principle of Natural Justice: Audi Alterem Partem
• Exceptions to the Principle of Natural Justice

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