NEED FOR SPEAKING ORDERS

 In a Constitution Bench decision of Hon‘ble Supreme Court in Shri Swamiji of Shri Admar Mutt etc. etc. v. The Commissioner, Hindu Religious and Charitable Endowments Dept. and Ors., AIR 1980 SC 1, while giving the majority judgment Chief Justice Y.V. Chandrachud referred to Broom‘s Legal Maxims (1939 Edition, page 97) where the principle in Latin runs as follows : “Ces-sante Ratione Legis Cessat Ipsa Lex” . The English version of the said principle given by the Chief Justice is that:- ― “Reason is the soul of the law, and when the reason of any particular law ceases, so does the Law itself.”

In the case of Kranti Associates Pvt. Ltd. vs. Masood ahmed Khan [citation:- 2011 (273) ELT 345 (SC)], the Hon‘ble Supreme Court have discussed the importance of passing a ―speaking order, i.e. the need to give reasons in support of the decision / order, in all proceedings (whether administrative or quasi-judicial) which affect the rights of the parties involved. From time to time, Court has held that the face of an order Principles of Natural Justice passed by a quasi-judicial authority or even an administrative authority affecting the rights of parties, must speak.

 In this case, the Hon‘ble court held as under:-

(a) In India the judicial trend has always been to record reasons, even in administrative decisions, if such decisions affect anyone prejudicially.

(b) A quasi-judicial authority must record reasons in support of its conclusions.

(c) 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.

 (d) Recording of reasons also operates as a valid restraint on any possible arbitrary exercise of judicial and quasi-judicial or even administrative power.

(e) Reasons reassure that discretion has been exercised by the decision maker on relevant grounds and by disregarding extraneous considerations.

(f) Reasons have virtually become as indispensable a component of a decision making process as observing principles of natural justice by judicial, quasijudicial and even by administrative bodies.

 (g) Reasons facilitate the process of judicial review by superior Courts.

(h) 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.

 (j) 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.

 (l) Reasons in support of decisions must be cogent, clear and succinct. A pretence Principles of Natural Justice of reasons or ‗rubber-stamp reasons is not to be equated with a valid decision making process.

(m) It cannot be doubted that transparency is the sine quanon 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.

 (n) 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.

(o) 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

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out /  Change )

Google photo

You are commenting using your Google account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s

This site uses Akismet to reduce spam. Learn how your comment data is processed.