Speaking Order (Reasoned decision )

Introduction: A ‘speaking order’ means an order speaking for itself. To put it simply, every order must contain reasons in support
of it. Reasons are the heart and soul of a justice. Courts and tribunals are bound to give reasons but administrative authorities
decision affect anyone prejudicially. 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.
Importance : Giving of reasons in support of an order is considered to be the third principle of natural justice. According to this, a
party has a right to know not only the result of the inquiry but also the reasons in support of the decision.
Object : There is no general rule of English law that reasons must be given for administrative or even judicial decisions. In India
also, till very recently it was not accepted that the requirement to pass speaking orders is one of the principles of natural
justice. But as Lord Denning says, “the giving of reasons is one of the fundamentals of good administration.” The condition
to record reasons introduces clarity and excludes arbitrariness and satisfies the party concerned against whom the order is
passed.

Today, the old ‘police State’ has become a ‘welfare State.’ The governmental functions have increased, administrative
tribunals and other executive authorities have come to stay and they are armed with wide discretionary powers and there are
all possibilities of abuse of power by them. To provide a safeguard against the arbitrary exercise of powers by these
authorities, the condition of recording reasons is imposed on them.
 Need of speaking order &
Effects of non speaking orders
Need of speaking order
• Reasons facilitate the process of judicial review by superior courts.
• It introduces fairness in the administrative powers
• It excludes or minimizes arbitrariness
• It maintains the right to reasons which is an indispensable part of sound judicial review
• It is a component of administration of justice
• 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 prefer an appeal
Effects of non speaking orders
• Arbitrariness
• No accountability and transparency
• Chances of involving in corruption
• Analysing the application of mind and consideration of the facts is not possible
• Appellate court is required to analyse entire case from the beginning
• Aggrieved party is deprived from justice
 Judiciary and Speaking Order

• Mahabir Prasad v/s State of UP the supreme court quashed an order cancelling a licence under the UP
Sugarcane dealers Licensing order 1962 as the order was a blanket one without containing reasons.
• In Siemens Engg. And Mfg. Co. Of india v./s Union of India : the court held that the rules giving reasons
in support of an order is the third principle of natural justice.
• In Sunil Batra v/s Delhi Administration the Supreme court held that 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/s Chokhamal Contractors : the court held that the rule of speaking
order should be confined to the realm of the public law or administrative law only.
• The Constitutional Bench of Supreme Court in the case of Som Datt Datta v. India 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.
• In M/s. Mahabir Prasad Santosh Kumar vs. State of U.P and others, while dealing with U.P. Sugar
Dealers License Order under which the license was cancelled, the Supreme Court held that such an order of
cancellation is quasi-judicial and must be a speaking one. The Court further held that merely giving an
opportunity of hearing is not enough and further pointed out where the order is subject to appeal, the
necessity to record reason is even greater.
• In M/s. Woolcombers of India Ltd. vs. Woolcombers Workers Union and another, the Court while
considering an award under Section 11 of Industrial Disputes Act insisted on the need of giving reasons in
support of conclusions in the Award.
 Judiciary and Speaking Order

• Maneka Gandhi v. Union of India. In this particular case, the authorities under section 10(5) of the Passport Act need to
record reasons and furnish a copy of the same to the concerned individual but the reasons for impounding can be refused on
the grounds that it was not in the interest of the general public and the same was applied on her AIR 1978 SC 597
• In the case of M.L. Jaggi vs. Mahanagar Telephones Nigam Limited and others, the 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.
• Narayandas v/s State of MP section 4 of the criminal Law Act 1961 empowers the State government to forfeit any
newspaper or book which seemingly questions the territorial integrity of India in such a manner as to be prejudicial to the
interests of the safety or security of India. The book of the petitioner was forfeited by an order of the government without
giving any reasons in support of its order.
• Union of India v/s M L Capoor ; petitioner was in promotion list according to the IPS Regulation 1955. he was in the list
upto 1967 but later on dropped out from the list in 1968.
 General Propositions

The law relating to ‘speaking orders’ may be summed up thus:

– Where a statute requires recording of reasons in support of the order and the reasons must be recorded by the authority.
– Even when the statute does not lay down expressly the requirement of recording reasons, the same can be inferred
from the facts and circumstances of the case.
– Mere fact that the proceedings were treated as confidential does not dispense with the requirement of recording
reasons.
– If the order is subject to appeal or revision (including Special Leave Petition under Article 136 of the Constitution), the
necessity of recording reasons is greater as without reasons the appellate or revisional authority cannot exercise its
power effectively.
– Even ‘fair play in action’ requires that an adjudicating authority should record reasons in support of order passed by it.
– There is no prescribed form for recording the reasons. the requirement of recording reasons will be satisfied if only
relevant reasons are recorded.
– A writ court cannot interfere with an order passed by an adjudicating authority only on the ground that the reasons
recorded by such authority are inadequate or insufficient.
– If, however, the reasons recorded by such authority are factually incorrect, legally untenable or irrelevant to the issue
involved in the lis, the power of judicial review can be exercised.
– It is not necessary for the appellate authority to record reasons when it affirms the order passed by the lower authority.
– 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.
– 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 by filing an affidavit.
– If the reasons are not recorded in support of the order it does not always vitiate the action.
– The duty to record reasons is a responsibility and cannot be discharged by the use of vague general words.
– The doctrine of recording reasons should be restricted to public law only and should not be applied to private law e.g.
arbitration proceedings.
– Normally, the reasons recorded by the authority should be communicated to the aggrieved party.
– Even when the reasons are not communicated to the aggrieved party in public interest, they must be in existence.
– The reasons recorded by the statutory authority are always subject to judicial scrutiny.
 EXCEPTIONS TO THE NATURAL PRINCIPLES OF JUSTICE

• During emergency
• Statutory exclusion
• Confidentiality
• Impracticability
• Legislative actions
• Academic evaluation
• Contractual arrangement
• Inter disciplinary action
• Government policy decision
• No right of the person is infringed
• Interim preventive action
• Public interest
• Useless formality theory
 EXCEPTIONS TO THE NATURAL PRINCIPLES OF JUSTICE
• STATUTORY EXCLUSION: In Charan Lal Sahu vs UOI (Bhopal Gas Disaster case) is a classical example of the application of
this exception. In this case the constitutional validity of the Bhopal Gas Disaster (Processing of Claims) Act, 1985, which had
authorized the Central Government to represent all the victims in matters of compensation award, had been challenged on
the ground that because the Central Government owned 22 percent share in the Union Carbide Company and as such it was
a joint tortfeasor and thus there was a conflict between the interests of the government and the victims. The court negative
the contention and observed that even if the argument was correct the doctrine of necessity would be applicable to the
situation because if the government did not represent the whole class of gas victims no other sovereign body could so
represent and thus the principles of natural justice were no attracted.
• EMERGENCY : In Mohinder Singh Gill vs. CEC, whether notice and right to be heard must been given or not was been laid
down before the SC. In Firozhpur Constituency Parliamentary Election counting was been going on where in some segments
counting were going on and in some it was over. One candidate was having a very good lead but before the declaration of
the results, in a mob violence in some segments ballot papers and boxes were been destroyed. The ECI acting under Article
324, 329 without giving any notice or hearing to the candidates cancelled the Election and ordered for fresh Election. The SC
rejected the claim of notice and audi alteram partem and held that in case of emergency, Audi Alteram Partem can be
excluded.
• CONFIDENTIALITY: In Malak Singh v. State of P&H, the SC held that the maintenance of Surveillance Register by the Police
is a confidential document and neither the person whose name is entered in the Register nor any other member of the
public can have excess to it.
• IMPRACTIBILITY: In Bihar School Examination Board vs. Subhash Chandra, the Board conducted final tenth standard
examination. At a particular centre, where there were more than thousand students, it was alleged to have mass copying.
Even in evaluation, it was prima-facie found that there was mass copying as most of the answers were same and they
received same marks. For this reason, the Board cancelled the exam without giving any opportunity of hearing and ordered
for fresh examination, whereby all students were directed to appear for the same.
 EXCEPTIONS TO THE NATURAL PRINCIPLES OF JUSTICE
• ACADEMIC EVALUATION: In Jawaharlal Nehru University v. B.S. Narwal , B.S Narwal, a student of JNU was removed from
the rolls for unsatisfactory academic performances without being given any predecisional hearing. The Supreme Court held
that the very nature of academic adjudication appears to negative any right of an opportunity to be heard. Therefore, if the
competent academic authorities examine and asses the work of a student over a period of time and declare his work
unsatisfactory, the rules of natural justice may be excluded.
• INTER-DISCLIPINARY ACTION: In S.A Khan vs. State of Haryana, Mr. Khan an IPS Officer holding the post of Deputy
Inspector General of Haryana; Haryana Govt., was suspended by the Haryana Government due to various complaints against
him. Thus, he approached the Supreme Court on the ground of violation of PNJ as he was not given an opportunity to be
heard. The SC held that the suspension being interim-disciplinary action, there is no requirement to afford hearing. It can be
ordered without affording an opportunity of hearing.
• USELESS FORMALITY THEORY: In Dharmarathmakara Raibahadur Arcot Ramaswamy Mudaliar Educational Institution v.
Education Appellate Tribunal, a lecturer, who had been granted leave for doing M. Phil, in violation of leave condition, had
joined a Ph. D course. She was given notice and after considering her reply, wherein she had admitted joining Ph. D course,
her service was terminated. She challenged the termination order before Karnataka Private Educational Institutions
(Discipline and Control) Act, 1975 subsequently it is appealed to HC where termination was held invalid, but SC held that
opportunity to show cause was not necessary where facts are undisputed and the affected person could not fourth any valid
defence.
• DOCTRINE OF NECESSITY : . In Ashok Kumar Yadav vs. Haryana, the Court held that a member of the Public Service
Commission could not entirely disassociate himself from the process of selection just because a few candidates were related
to him. He should disassociate himself with the selection of the persons who are related to him, but need not disassociate
with the selection of other candidates. Though his presence on the selection committee could create a likelihood of bias in
favour of his relations yet, since the PSC is a constitutional authority, such a member cannot be excluded from its work and
his presence in the recruitment process is mandatorily required. The Court further held that where substitution is possible,
this doctrine would not apply.
• INTERIM PREVENTIVE ACTION : In Abhay Kumar v. K Srinivasan , the institution passed an Oder debarring the student from
entering the premises of the institution and attending classes till the pendency of a criminal case against him for stabbing a
co-student. This order was challenged on the ground that it violates Principles of Natural Justice. The Delhi High Court
rejecting the contention held that such an order could be compared with an order of suspension pending enquiry which is
preventive in nature in order to maintain campus peace hence the principles of natural justice shall not apply.