“Reason is the soul of the law, and when the reason of any particular law ceases, so does the law itself.” [“Ces-sante Ratione Legis Cessat Ipsa Lex”]. Every judicial order should contain sound reasons. If valid reasons are not found in the order, such an order becomes erroneous. The person aggrieved gets an opportunity to demonstrate that the reasons are erroneous. Recording of reasons in support of a decision on a disputed claim ensures that the decision is not a result of caprice, whim or fancy but was arrived at after considering the relevant law and that the decision was just. The expression `speaking order‘ was first coined by Lord Chancellor Earl Cairns. ‘Reasons’ are the links between the materials on which certain conclusions are based. Natural justice requires reasons to be written for the conclusions made; and that as was held by the Ho’ble Apex Court ‘RUBBER STAMP REASONS’ are not enough. (Ref:-AIR 1974 SC 87). The present trend of the law has been towards an increasing recognition of the duty of Court to give reasons (See North Range Shipping Limited vs. Seatrans Shipping Corporation, (2002) 1 WLR 2397).
Who firstly used the word ‘ Speaking Order’?
In 2015, in Ebrahim Mahmood Akhalwaya vs State Of Gujarat & Ors, it was observed that the expression `speaking order’ was first coined by Lord Chancellor Earl Cairns in a rather strange context. The Lord Chancellor, while explaining the ambit of Writ of Certiorari, referred to orders with errors on the face of the record and pointed out that an order with errors on its face, is a speaking order. (See 1878-97 Vol. 4 Appeal Cases 30 at 40 of the report. (Also see. M/S Kranti Asso. Pvt. Ltd. & Anr vs Masood Ahmed Khan & Ors. (2010)).
Administrative orders and Quasi- Judicial orders :-
It is very important to give reasons while passing a judgment/order by any judicial or quasi judicial body. (Ref: M/S Kranti Asso. Pvt. Ltd. & Anr. vs Masood Ahmed Khan & Ors). In A.K. Kraipak and others vs. Union of India and others reported in AIR 1970 SC 150. The Hon’ble Supreme Court approved the opinion of Lord Denning in Rigina vs. Gaming Board Ex parte Benaim [(1970) 2 WLR 1009] in Kesava Mills Co. Ltd. and another vs. Union of India and others reported in AIR 1973 SC 389 and quoted him as saying “that heresy was scotched in Ridge and Boldwin, 1964 AC 40”. The Hon’ble Supreme Court in catena of rulings opined that the face of an order passed by a quasi-judicial authority or even an administrative authority affecting the rights of parties, must speak. It must not be like the `inscrutable face of a Sphinx‘. Also see. Siemens Engineering and Manufacturing Co. of India Ltd. vs. The Union of India and another, AIR 1976 SC 1785; Lav Nigam v. Chairman and MD, ITI Ltd. & Another [(2006) 9 SCC 440]; Sudhir Kumar vs Union Of India (2012).
Order without giving reasons becomes mala fide:-
A reasoned order is a desirable condition of judicial ,disposal. (Madhya Pradesh Industries Ltd vs Union Of India And Others, 1966 AIR 671). In Harinagar Sugar Mills Ltd. vs. Shyam Sunder Jhunjhunwala and others, AIR 1961 SC 1669, The Hon’ble Court insisted on the requirement of recording reason and further held that in exercising appellate powers, the Central Government acted as a tribunal in exercising judicial powers of the State and such exercise is subject to Article 136 jurisdiction of the Hon’ble Supreme Court. Such powers, this Court held, cannot be effectively exercised if reasons are not given by the Central Government in support of the order (Para 23, page 1678-79).
Bound to pass Speaking Order:-
In 2015, the Hon’ble Delhi High Court, in Manpower Co-Operative Group vs Office Of The Registrar Of CO-OPERATIVE SOCIETIES, GNCT OF DELHI, followed the ratio laid down in Bhagat Raja vs. Union of India and others, AIR 1967 SC 1606, the Constitution Bench of the Hon’ble Apex Court where in it was examined the question whether the Central Government was bound to pass a speaking order while dismissing a revision and confirming the order of the State Government in the context of Mines and Minerals (Regulation and Development) Act, 1957, and having regard to the provision of Rule 55 of Mineral and Concessions Rules. The Hon’ble Apex Court insisted on reasons being given for the order. See M/s. Mahabir Prasad Santosh Kumar vs. State of U.P and others, AIR 1970 SC 1302.
While exercising judicial power reasons in support of the order must be disclosed:
In M/s. Travancore Rayons Ltd. vs. The Union of India and others, AIR 1971 SC 862, it was held that the Central Government was actually exercising judicial power of the State and in exercising judicial power reasons in support of the order must be disclosed on two grounds. The first is that the person aggrieved gets an opportunity to demonstrate that the reasons are erroneous and secondly, the obligation to record reasons operates as a deterrent against possible arbitrary action by the executive authority invested with the judicial power (See para 11 page 865-866). This ratio decidendi is followed in M/S Sa Infrastrictire Cons Anr vs State (Urban Development)Ors (2013).
The very requirement of giving reason is to prevent unfairness or arbitrariness in reaching conclusions:
In 2013, the Hon’ble Delgi High Court, in the case of State Bank Of India & Anr vs Kishan Lal Mittal, as to requirement of giving reasons is concerned, observed as follows:- ‘In M/s. Woolcombers of India Ltd. vs. Woolcombers Workers Union and another,AIR 1973 SC 2758, Supreme Court, while considering an award under Section 11 of the Industrial Disputes Act, insisting upon the need of giving reasons in support of the conclusions in the award observed that the very requirement of giving reason is to prevent unfairness or arbitrariness in reaching conclusions. It was further observed that that a just but unreasoned conclusion does not appear to be just to those who read the same. Reasoned and just conclusion on the other hand will also have the appearance of justice. The Apex Court emphasized that since the awards are subject to Article 136 jurisdiction of the Apex Court, it would be difficult for the Court, in the absence of reasons, to ascertain whether the decision was right or wrong.’
In M/s. Woolcombers of India Ltd (Supra) ((See para 5 page 2761)), it was further observed that the second principle is based on the jurisprudential doctrine that justice should not only be done, it should also appear to be done as well. The Hon’ble Judges said that a just but unreasoned conclusion does not appear to be just to those who read the same. Reasoned and just conclusion on the other hand will also have the appearance of justice. The third ground is that such awards are subject to Article 136 jurisdiction of this Court and in the absence of reasons, it is difficult for this Court to ascertain whether the decision is right or wrong.
The expression “reasons for the proposed supersession”:-
In 2014, as to the point that administrative action must be supported by reasons, the Hon’ble Orissa High Court in Epari Vasudeva Rao, Bhubaneswar vs State Of Odisha And Another, followed the ruling in Union of India vs. Mohan Lal Capoor and others, AIR 1974 SC 87, wherein the Hon’ble Apex Court while dealing with the question of selection under Indian Administrative Service/Indian Police Service (Appointment by Promotion Regulation) held that the expression “reasons for the proposed supersession” should not be mere rubber stamp reasons. Such reasons must disclose how mind was applied to the subject matter for a decision regardless of the fact whether such a decision is purely administrative or quasi-judicial. This Court held that the reasons in such context would mean the link between materials which are considered and the conclusions which are reached. Reasons must reveal a rational nexus between the two (See para 28 page 98). Also see. Smt. Maneka Gandhi vs. Union of India and Anr., AIR 1978 SC 597 and M/s. Bombay Oil Industries Pvt. Ltd. vs. Union of India and Others, AIR 1984 SC 160.
Natural justice requires reasons to be written for the conclusions made:-
In 2015, the Hon’ble Delhi High Court in Manpower Co-Operative Group (supra), followed the ruling in Rama Varma Bharathan Thampuran vs. State of Kerala and Ors., AIR 1979 SC 1918, wherein his Lordship Justice V.R. Krishna Iyer speaking for a three-Judge Bench held that the functioning of the Board was quasi-judicial in character. One of the attributes of quasi- judicial functioning is the recording of reasons in support of decisions taken and the other requirement is following the principles of natural justice. His Lordship held that natural justice requires reasons to be written for the conclusions made (See para 14 page 1922).
Rubber Stamp reason is not enough:-
In 1999, the Hon’ble Allahabad High Court in Lohiya Machine (L.M.L.) vs State Of U.P.( 1999 (3) AWC 2134) followed the ruling in Gurdial Singh Fijji vs. State of Punjab and Ors., (1979) 2 SCC 368, wherein the Hon’ble Apex Court, dealing with a service matter, relying on the ratio in Capoor (supra), held that “rubber-stamp reason” is not enough and virtually quoted the observation in Capoor (supra) to the extent that reasons “are the links between the materials on which certain conclusions are based and the actual conclusions.” (See para 18 page 377).
Reason is the soul of the law:-
The duty to give reason is an incident of the judicial process and emphasized that in discharging quasi-judicial functions the appellate authority must act in accordance with natural justice and give reasons for its decision (Para 4, page 1176)(Ref:Ram Chender Vs. Union of India and Others (AIR 1986 SC 1173)). In M/s. Bombay Oil Industries Pvt.Ltd. Vs. Union of India and others, AIR 1984 SC 160, the Hon’ble Apex Court held that while disposing of applications under Monopolies and Restrictive Trade Practices Act the duty of the Government is to give reasons for its order. In a Constitution Bench decision of the Hon’ble Apex Court in Shri Swamiji of Shri Admar Mutt etc. etc. vs. The Commissioner, Hindu Religious and Charitable Endowments Dept. and Ors., AIR 1980 SC 1, while giving the majority judgment the Hon’ble Chief Justice Y.V. Chandrachud referred to Broom’s Legal Maxims (1939 Edition, page 97) where the principle in Latin observed:
“Ces-sante Ratione Legis Cessat Ipsa Lex”
The English version of the said principle given by the Chief Justice is that: (H.H. Shri Swamiji case (1979) 4 SCC 642) “Reason is the soul of the law, and when the reason of any particular law ceases, so does the law itself.”
Recording of reason are necessary:-
In 2011, the Hon’ble Punjab and Haryana High Court in Subhash Chand vs State Of Haryana And Others referred to the ruling in M/s. Star Enterprises and others vs. City and Industrial Development Corporation of Maharashtra Ltd. and others, (1990) 3 SCC 280, wherein a three-Judge Bench of the Hon’ble Apex Court held that in the present day set up judicial review of administrative action has become expansive and is becoming wider day by day and the State has to justify its action in various field of public law. All these necessitate recording of reason for executive actions including the rejection of the highest offer. the Hon’ble Apex Court held that disclosure of reasons in matters of such rejection provides an opportunity for an objective review both by superior administrative heads and for judicial process and opined that such reasons should be communicated unless there are specific justification for not doing so (see Para 10, page 284-285).
Non-recording of reason may not be violative of the principles of natural justice:-
Strict rules of the Evidence Act do not apply to departmental proceedings as has been held by the Supreme Court in the cases of State Bank of India and Others Vs. Narendra Kumar Pandey (2013) 2 SCC 740. See. Shri Narayan Singh vs Indian Oil Corporation And Ors.(2013). In Maharashtra State Board of Secondary and Higher Secondary Education vs. K.S. Gandhi and others, (1991) 2 SCC 716, the Hon’ble Apex Court held that even in domestic enquiry if the facts are not in dispute non-recording of reason may not be violative of the principles of natural justice but where facts are disputed necessarily the authority or the enquiry officer, on consideration of the materials on record, should record reasons in support of the conclusion reached (see para 22, pages 738-739)
Reasons must be recorded in the award:-
“It is, thus, settled law that reasons are required to be recorded when it affects the public interest. See. Tapas Panda vs The State Of West Bengal & Ors (2015) and M.L. Jaggi’s case referred to infra. In M.L. Jaggi vs. Mahanagar Telephones Nigam Limited and others, (1996) 3 SCC 119, the Hon’ble Apex Court dealt with an award under Section 7 of the Telegraph Act and held that since the said award affects public interest, reasons must be recorded in the award. It was also held that such reasons are to be recorded so that it enables the High Court to exercise its power of judicial review on the validity of the award. (see para 8, page 123).
Recording reasons is “too obvious to be reiterated and needs no emphasizing:-
In determining the compensation that is required to be awarded to the Complainant we will be guided by the following observations made by the Honorable Supreme Court in Charan Singh vs Healing Touch Hospital & Ors. (AIR 2000 SC 3138). Also see. Smt J.S. Paul vs Dr. (Mrs) A. Barkataki (2004). In Charan Singh vs. Healing Touch Hospital and others, AIR 2000 SC 3138, a three-Judge Bench of the Hon’ble Apex Court, dealing with a grievance under CP Act, held that the authorities under the Act exercise quasi-judicial powers for redressal of consumer disputes and it is, therefore, imperative that such a body should arrive at conclusions based on reasons. the Hon’ble Apex Court held that the said Act, being one of the benevolent pieces of legislation, is intended to protect a large body of consumers from exploitation as the said Act provides for an alternative mode for consumer justice by the process of a summary trial. The powers which are exercised are definitely quasi-judicial in nature and in such a situation the conclusions must be based on reasons and held that requirement of recording reasons is “too obvious to be reiterated and needs no emphasizing”. (See Para 11, page 3141 of the report)
Proceedings of Court Martial need not to be supported by reasons:-
Only in cases of Court Martial, Hon’ble Apex Court struck a different note in two of its Constitution Bench decisions, the first of which was rendered in the case of Som Datt Datta vs. Union of India and others, AIR 1969 SC 414, Mr. Justice Ramaswami delivering the judgment for the unanimous Constitution Bench held that provisions of Sections 164 and 165 of the Army Act do not require an order confirming proceedings of Court Martial to be supported by reasons. The Hon’ble Court held that an order confirming such proceedings does not become illegal if it does not record reasons. (Para 10, page 421- 422 of the report). In another case, about two decades thereafter, a similar question cropped up before this Court in the case of S.N. Mukherjee vs. Union of India, AIR 1990 SC 1984. A unanimous Constitution Bench speaking through His Lordship Justice S.C. Agrawal confirmed its earlier decision in Som Datt (supra) in para 47 at page 2000 of the report and held reasons are not required to be recorded for an order confirming the finding and sentence recorded by the Court Martial.
The Court Martial as a proceeding is sui generis in nature:-
Our Constitution also deals with Court Martial proceedings differently as is clear from Articles 33, 136(2) and 227(4) of the Constitution.The Hon’ble Supreme Court held that the Court Martial as a proceeding is sui generis in nature and the Court of Court Martial is different, being called a Court of Honour and the proceeding therein are slightly different from other proceedings. About the nature of Court Martial and its proceedings the observations of Winthrop in Military Law and Precedents are very pertinent and are extracted herein below:
“Not belonging to the judicial branch of the Government, it follows that courts-martial must pertain to the executive department; and they are in fact simply instrumentalities of the executive power, provided by Congress for the President as Commander-in-Chief, to aid him in properly commanding the Army and Navy and enforcing discipline therein, and utilized under his orders or those of his authorized military representatives.”
Reasons encourage transparency :-
In English vs. Emery Reimbold and Strick Limited, (2002) 1 WLR 2409, it has been held that justice will not be done if it is not apparent to the parties why one has won and the other has lost. The House of Lords in Cullen vs. Chief Constable of the Royal Ulster Constabulary, (2003) 1 WLR 1763, Lord Bingham of Cornhill and Lord Steyn, on the requirement of reason held, “First, they impose a discipline … which may contribute to such decisions being considered with care. Secondly, reasons encourage transparency … Thirdly, they assist the Courts in performing their supervisory function if judicial review proceedings are launched.” (Para 7, page 1769 of the report)
From rulings of the Hon’ble Apex Court referred to above, the following conclusions are summed up:-
1) In India the judicial trend has always been to record reasons, even in administrative decisions, if such decisions affect anyone prejudicially.
2) A quasi-judicial authority must record reasons in support of its conclusions.
3) Insistence on 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.
4) Recording of reasons also operates as a valid restraint on any possible arbitrary exercise of judicial and quasi-judicial or even administrative power.
5) Reasons reassure that discretion has been exercised by the decision maker on relevant grounds and by disregarding extraneous considerations.
6) 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.
7) Reasons facilitate the process of judicial review by superior Courts.
8) The ongoing judicial trend in all countries committed to rule of law and constitutional governance is in favour of reasoned decisions based on relevant facts. This is virtually the life blood of judicial decision making justifying the principle that reason is the soul of justice. i. 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.
9) Insistence on reason is a requirement for both judicial accountability and transparency. k. 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. l. 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.
10) 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. (See David Shapiro in Defence of Judicial Candor (1987) 100 Harward Law Review 731-737).
11) Since the requirement to record reasons emanates from the broad doctrine of fairness in decision making, the said requirement is now virtually a component of human rights and was considered part of Strasbourg Jurisprudence. See (1994) 19 EHRR 553, at 562 para 29 and Anya vs. University of Oxford, 2001 EWCA Civ 405, wherein the Court referred to Article 6 of European Convention of Human Rights which requires, “adequate and intelligent reasons must be given for judicial decisions”.
12) In all common law jurisdictions judgments play a vital role in setting up precedents for the future. Therefore, for development of law, requirement of giving reasons for the decision is of the essence and is virtually a part of “Due Process”.
—— x ——