Day in and day out, orders or proceedings in the process of exercise of administrative powers, judicial powers and quasi-judicial powers under various statutes are being issued.

The experience has been that in many a case, the orders issued are shorn or bereft of any reasons or discussions. On the converse, some of the orders or proceedings are vague, cryptic as also bald.

Who are the competent authorities to issue or pass orders or proceedings?

Authorities constituted in different positions in various statutes, be it appointing authority, assessing officer, revisional authority, appellate authority. The authorities, to some extent while imposing penalties for economic offences are given powers to enforce attendance of the persons and production of records, in which case such tribunals do have trappings of a court. The immediate question that would come to the fore is whether the tribunals are courts. All the tribunals are not courts or for that matter, all courts are not tribunals. Whether a tribunal in certain circumstances would have to be considered as a court would depend upon the scope of powers conferred and the circumstances in which such powers are exercised.

The tribunals, in most of the cases are creatures of the statute and such tribunals shall have to work within the parameters or contours, as stipulated by the concerned statute. That apart, certain tribunals to substitute the High Courts which are already overburdened with different types of cases are constituted in terms of Article 323B of the Constitution of India. Mostly such tribunals are conferred with the power of judicial review on par with the Jurisdictional High Court in terms of Article 226 of the Constitution of India. In many states, administrative tribunals were constituted to deal with adjudication of the disputes arising out of service conditions of the state government employees. Similarly, in the year 1985, Administrative Tribunals Act was enacted by the Parliament to constitute Central Administrative Tribunal in each of the states to deal with the disputes arising out of service conditions of Central Government, public sector and public undertaking employees.

Several other tribunals were also constituted, namely, Land Grabbing Tribunal, Consumer Disputes Resolution Forum, Electricity Regulatory Authority, recently constituted tribunal in respect of Real Estate, TRAI, National Electricity Appellate Tribunal and of late, GST Appellate Tribunal. Of course it is yet to be constituted.

What would be the judicial impact of the consequences that would stem from the orders/ proceedings of various statutory authorities and other appellate tribunals? Do they affect the civil rights of the subjects of the country? If not, for what purpose the tribunals are constituted and orders are passed?

The authorities under the statute, which are also otherwise known as tribunals in the administration of the statutes under which they are created, are required to issue proceedings/ orders to find out whether the provisions of the statute are complied with by the subject’s tooth and nail. In case the authorities specified notice that there was failure on the part of the subjects to comply with the provisions of law, they are supposed to pin down the deficiencies on the part of the subjects in compliance with the provisions of the statute. In the ultimate analysis, the effect of the order or proceedings would be visiting the concerned person with charge or allegation of the commission of illegality, irregularity and evasion, avoidance, disobedience, negligence in duty, lack of integrity and also offences of economical nature. Whenever an order or proceeding is issued, the settled principle of law is that such proceeding or order shall invariably contain the reasons or the basis or foundation on which such order is sought to be passed, especially when such proceeding is amenable to appellate jurisdiction. It may be appreciated that the order of the original authority is not final, as the statute itself provides for remedial hierarchy. Therefore, if a person is injured by a particular proceeding or order, the statute provides for remedy of appeal, the exercise of which may be conditioned. An appeal or revision under the statute is simply a creature under the act. The same rather cannot be claimed as fundamental right in terms of the Constitution of India. Therefore, remedy of appeal is not absolute but is always circumscribed by conditions or inhibitions.

In order to assail the proceeding or order issued by a tribunal in an appeal, the aggrieved party shall be in a position to know what are the points/issues/reasons discussed in the order, going against the interest of the person. Even if a remedy of appeal is provided, nevertheless a proceeding/order bereft of any details or reasons may be questioned in a statutory appeal. Therefore, the judiciary in olden ages and in modern ages always insisted that any order or proceeding of a tribunal affecting the civil rights of a person with consequences shall be equipped with valid reasons. A very good amount of judicial precedence has developed over a considered period of generations.

What would happen if the orders are cryptic or vague? Such situation could immediately make the order/proceeding, a mockery, that it would project that the authority issuing the proceeding is not good at adjudication process or for that matter, the authority is not equipped with the information or the material as the case may be, for being used against the person in the process of framing such order.

Question is how to deal with such orders or proceedings? In many a case, such orders are assailed by way of writ petitions under Article 226 of the Constitution of India, on the accepted premise that the proceeding or order is in complete violation or breach of the principles of natural justice. Therefore, the fundamental or basic principle of natural justice is that a proceeding which adversely affects a person shall necessarily contain the reasons or the material and in the absence of such elementary requirement, one can say that there is violation of the principles of natural justice. When questioned in a writ petition, the judiciary would come heavily on the authorities issuing such orders.

The other facet of the orders is that reply or objections or explanation furnished in response to any show cause notice, not considered or deliberated in the proceedings or order, is also a breach of the principles of natural justice. As such, an order could be considered one sided which fail to consider the contentions of the aggrieved party.

The third one is the aggrieved person if not provided with an opportunity of personal hearing is also considered as infringement of principles of natural justice. Therefore, it must be understood that the order without any reasons or basis or foundation is considered unfair, irregular and illegal, requiring to be interfered with by the court and to be set aside for remittal to the concerned authority who made the order for De Novo consideration, after contributing the reasons and after hearing the person.

The consequences of such remittal would firstly be loss of precious time, incurrence of heavy expenditure, not only to the affected party but also to the state and finally the state or the authority will have to cut a sorrow face before the court and finally repetition of the same thing, of course to issue proceeding or order afresh after following the directions contained in the remittal order issued by the High Court. That apart, if any revenue is collectable, an order without reasons would definitely have the effect of postponing the demand and collection of such revenue, as the order when questioned would not be readily set aside in the first instance itself and the procedural law is to be followed whereby notice is required to be issued to the other side, namely, the administration, call for their instructions, counter and reply of the person aggrieved and finally the decision. No doubt, this process would consume time, in which case the court would always be inclined to grant an injunction against the administration from enforcing the collection of the revenue involved therein. These are the consequences that would emerge on account of orders of laconic issued in fragrant violation of the principles of natural justice which are always susceptible to writ jurisdiction and certain to be interfered with and ultimately would reach square one for fresh proceedings.

I would elaborate on certain decisions of the judiciary, how the law requiring assignment of reasons, basis or foundation as a requirement of law for issuance of the proceedings/order.

The need for giving reasons by an authority in support of a decision was, for consideration before the Apex Court of the country in several matters. Then a necessity has arisen to demarcate between administrative orders and quasi-judicial orders. But later on, the distinction between the two categories got blurred and thinned out and virtually reached a vanishing point. Therefore, it is 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.

As already stated above, much water had flown under the bridge with a line of decisions of the courts declaring that orders of either quasi-judicial or administrative nature without reasons cannot sustain. However, in cases of court martial, reasons are not required to be recorded for an order confirming the finding and sentence recorded by it. Court martial is different, being called a court of honor and the proceedings therein are slightly different from other proceedings. This proposition also gains support from Articles 33,136(2) and 227(4) of the Constitution of India.

Recently in (2010) 9 SCC 496, a division bench of the Supreme Court summarized the principles on recording of reasons:

  1. In India, the judicial trend has always been to record reasons, even in administrative decisions if such affects anyone prejudicially.
  2. A quasi-judicial authority shall record reasons in support of its conclusions.
  3. Insistence on recording of reasons is to serve the wider principle of justice that justice must not only be done, it must also appear to have been done as well.
  4. Recording of reasons could serve as a valid restraint on any possible arbitrary exercise of judicial, quasi-judicial and administrative power.
  5. Reasons have virtually become indispensable component of a decision- making process.
  6. Reasons facilitate the process of judicial review by superior courts.
  7. Reasons in support of decisions must be cogent, clear and sufficient.
  8. A pretence of reasons or rubber stamp reasons cannot be regarded as a valid decision making process.
  9. In all common law jurisdictions, judgments play a vital role in setting up precedents for the future. Therefore, development of law, requirement of giving reasons for the decision is of the essence and is virtually a part of due process.

Now, I would like to give a very brief list of citations of the judicial decisions by the Apex Court.

  1. (1969) 2 SCC 262, in the case of A. K. Kraipak vs Union of India, where the distinctions are to be drawn between administrative and quasi-judicial orders given a go by.
  2. The decision of Lord Denning in R v. Gaming Board for Great Britain, X P Benaim </em >reported in (1970) 2 QB 417, which decision is subsequently approved by the Hon’ble Supreme Court in Kesava Mills Company Limited vs Union of India in (1970) 1 SCC 380</em >
  3. The expression speaking order is noted to have been first coined by Lord Chancellor Earl Cairns. His lordship while explaining the ambit of Writ of certiorari, referred to orders with errors on the face of the record and pointed out that in orders with errors on its face.
  4. Harinagar Sugar Mills Ltd v Shyam Sundar Jhunjhunwala reported in AIR 1961 SC 1669</em >, in which the issue was refusal of transfer of shares without giving reasons. When Central Government in an appeal dismissed the appeal without giving any reasons, answering the issue, the Supreme Court held with insistence that recording of reasons on administrative side as well as in appeal proceedings by the Government or the statutory authorities is essential in view of the fact that such orders are subject to judicial review.
  5. In Bhagat Raja v. Union of India, in AIR 1967 SC 1606, a Constitution bench examined the question whether the Central Government is bound to pass a speaking order while negating a revisional petition amounting to confirmation of the order of the State Government in the context of Mines & Minerals (Development and Regulation) Act, 1957. Accordingly, the Supreme Court found that it is a fundamental or basic principle of law that an order whether administrative or judicial shall be supported by reasons.
  6. In AIR 1978 SC 597, in the case of Maneka Gandhi v Union of India, involving impounding order of passport of the petitioner was ultimately held that the refusal of the passport is, though administrative side, nevertheless any order involving any deprivation or restriction on fundamental rights is taken, the authorities must disclose the reasons for the decision. In the same case, the former justice of India, Justice D Y Chandrachud, as he was then, categorically held that law cannot permit any exercise of power by an executive to keep the reasons undisclosed, if only motive for doing so is to keep the reasons away from judicial scrutiny.
  7. The English version of the principle is referred to in (1979) 4 SC 642, the Chief Justice held that reason is the soul of the law and when the reason of any particular law ceases, so does the law itself.

It is thus seen that the above are only certain examples, though the law has developed on this issue with numerical judgements which I do not propose to quote and burden this article.

Therefore, one has to agree that an order without reasons, whether issued by an administrative authority or quasi-judicial authority would become improper, unjust and illegal apart from arbitrary, denying the doctrine of equality before law in terms of Article 14 of the Constitution of India. As rightly held by the towering personalities in the judiciary, the law wants to know the reasons before an order is issued, because a proceeding or order whether issued by an administrative authority or quasi- judicial would affect the civil rights of a person in addition to inflicting civil liabilities. Even in service jurisprudence, Article 311 as a measure of conferment of the benefit of equality before law on the employee that the employer or competent person, before taking a final decision on a punishment in disciplinary proceedings is required to issue a notice with reasons indicating the proposed punishment, calling for the objections from the charged employee.

Therefore, the sum and substance of the law in which it was developed is that a person without knowing the reasons, without opportunity to know the reasons and without opportunity to defend itself cannot be condemned. This is the philosophy and spirit of the principle.

Hope that this article would be of great help for being informed to the professional fraternity.