This article has been written by Oishika Banerji, from Amity Law School, Amity University, Kolkata. This is an exhaustive article dealing with the Maneka Gandhi case as the foundation of the concept of post decisional hearing.
The Supreme Court passed a landmark judgement in the case of Maneka Gandhi v. Union of India (1978) which led to the widening of the ambit of the term personal liberty enshrined under Article 21 of the Constitution of India. Article 21 prior to the Maneka Gandhi case was there to protect an individual against the excessive powers resting on the executive organ of the government only. Therefore, the scope of Article 21 was restrictive in nature. Further, there arose a dilemma between Article 19 and Article 21 of the Indian Constitution. This is because Article 19 can only be exercised if Article 21 is regulated well. If a citizen of the nation is disadvantaged with personal liberty then he loses the capacity to exercise rights guaranteed by Article 19 of the Constitution. This was decided in the case of Collector of Malabar v. E. Ebrahim (1957). The Maneka Gandhi case was not only responsible for providing a divergent connotation to the term personal liberty as guaranteed by the Indian Constitution but also was a case that changed the destiny of Article 21, whenever it came in the confrontation in any cases in the future. It was in this case that the concept of post decisional hearing was adopted. The essence behind this concept is to increase fairness in any administrative action along with maintaining such actions. The court adopts post decisional hearing when it becomes difficult for it to provide a pre-decisional hearing. One must not forget that there is always a nexus between both of the hearings delivered by the court of law. Their established principle has been the tool to analyze several cases till today and also will be in future.
Maneka Gandhi v. Union of India
The Supreme Court in the case of A.K. Gopalan v. The State of Madras (1950), where the petitioner, a communist leader challenged his detention under the statute of Preventive Detention Act, 1950 on grounds that the same was violative of Article 19(1)(d) of the Indian Constitution came up with the decision that no article was violated in this case for personal liberty under Article 21 does not extend beyond providing liberty to the physical body which means freedom from any kind of detention without legal authority. This judgement was overturned in the case of Maneka Gandhi v. Union of India.
In Maneka Gandhi’s case, the petitioner’s passport was confiscated by the union government under Section 10(3)(c) of the Passport Act, 1967. The provision under which impoundment took place authorizes the central government to carry out the same if it was necessary for the interest of the general public at large. But the government did not provide any reasons for carrying out the same.
The petitioner filed a writ petition under Article 32 of the Constitution which mentioned the following things:
- Section 10(3)(c) of the Passport Act, 1967 was in violation with Article 14 of the Constitution for it vested excessive discretionary powers in the hand of the passport authority.
- Section 10(3)(c) did not align with the principles of natural justice because it did not provide any space for allowing the passport holder to be heard.
- There was a lack of reasonable procedure by Section 10(3)(c) which also led to the same contravening with Article 21 of the Constitution.
- Section 10(3)(c) was also in violation with Article 19(1)(a) and (g).
The Supreme Court was with the judgement that the activities carried out by the apex court was not justified by nature. Further, the Supreme Court highlighted that the subject-matter of Article 21 of the Constitution does not promote unfair procedures to carry out the execution of the same and the principle of reasonability which is an essential requirement of equality as provided in Article 14 which is supposed to be adopted in context with Article 21 was violated. Therefore, along with the breach of the provided statutory provisions, there was also a contravention of the principles of natural justice as infused in the doctrine of Audi Alteram Partem commonly means that both sides should be heard. The court laid down certain aspects that need to be fulfilled before a person is said to be deprived of personal liberty guaranteed in Article 21 of the Constitution. They are:
- Presence of a valid law.
- The law must also consist of a procedure to carry it out.
- The procedure must be fair, just and reasonable by nature.
- The element of reasonability can be said to be satisfied if the requirements of Article 14 and Article 19 of the Constitution are aligned with.
The court did not generally quash the contravening grounds for then the administrative efficacy would have been hampered along with the necessity of the Passport Act. The court was with the observance that fair procedure cannot be ignored to maintain administrative efficiency rather it should strike a balance in order to provide equal importance to both. This led to the development of the concept of post-decisional hearing. Although in this case passport was returned to the petitioner on socio-economic grounds, in further cases that followed the Maneka Gandhi case, the concept of post decisional hearing was given preference. Article 14 and Article 21 of the Constitution are the two provisions that keep the principles of natural justice intact in the Indian Constitution. They also establish Dicey’s concept of the rule of law. Article 21 of the Constitution is the wheel for several other articles of the Constitution to regulate. One of them being Article 14 that promotes equality and equal protection among all.
Post decisional hearing
Post decisional hearing can be identified as a harmonizing tool to balance between administrative efficacy and fair procedures governing an individual. Post decisional hearing was not brought about to overpower pre-decisional hearing but to supplement the later whenever the case demands. It was in the case of Bari Doab Bank Ltd. v. Union of India (1997), the Supreme Court held that in cases where pre-decisional hearing is guaranteed, a post-decisional hearing will not be taking place in such cases. Therefore, the court mentioned that the usage of post-decisional hearing is restricted to exceptional usage only. Such exceptional grounds are likely to include deprivation of property, liberty, livelihood or any other public interest that any individual can demand and is relevant by nature.
The Maneka Gandhi case gave rise to the principle as the case was in conflict with statute and the principle of natural justice and it became relevant for the court to decide as to whom to prefer more. Although a prior hearing is always better than subsequent hearing, the later is preferred over no hearing at all. The fact that supports post decisional hearing is the speedy disposal of cases and remedying of injustice. Post decisional hearing is, therefore, a demand when immediate decisions are to be taken in light to the public interest. In the case of post decisional hearing, an individual is provided with an opportunity to be heard after a decision has been adopted by the concerned authorities within a specific time frame.
The important feature that is required to be highlighted by this kind of hearing is that the decision taken by the concerned authorities are not permanent and final by nature rather, a tentative one for without the parties being heard, the final decision cannot be taken as it goes against the Principles of Natural Justice. Now, this may sound very simple and hurdle free but the major challenge faced by the authorities is relevant. After passing a tentative decision, when the time comes for them to deliver a final judgement then the older decision cannot be reversed and thereby, the procedure of delivering a fair and a reasonable judgement becomes nullified. It was in the case of Yoginath Badge v. State of Maharashtra (1999) that the Supreme Court made such a decision. Therefore, the cases which have dealt with such kind of hearing are few. Repeatedly the apex court was of the view that pre-decisional hearing is much more efficient than post decisional hearing for the Principles of Natural Justice have been provided with a lot of recognition in case of the former hearing. As the conflict between pre-decisional hearing and that of post decisional hearing rises, the courts developed a test, which is divided into three parts to determine which is mandated when. They are:
1) The public interests that are involved need to be considered.
2) Association of the risks that are involved in allowing the adoption of pre-decisional hearing needs to be taken care of along with taking care of the values of the Constitution that are involved.
3) Government’s administrative and economic implications.
This test was adopted in a case in the Supreme Court of the United States named Mathew v. Eldridge (1976). The tests laid down evolved and increased its ambit by including some other grounds as well as laid down in the case of Fuentes v. Shevin (1972). The test includes:
1) Necessary government interest and the interests of the public at large.
2) The requirement for effective actions.
3) The quality of the limits set over the force of the government.
Post decisional hearing is, therefore, not elimination or contravention of natural justice but the tool to modify the same according to situational demands. If the relevance of post decisional hearing in Maneka Gandhi’s case is viewed then it can be said that the authority to impound passport can become frustrated by nature if a beforehand notice has been provided to the person in concern whose passport is supposed to be confiscated. If this is done then the person cannot leave the country prior to providing the passport. In this situation, it is the decision that is made after which the hearing of the parties are made. But the problem in Maneka Gandhi’s case that arises is that no notice was provided to the party before confiscation of her passport. Hence, the Supreme Court was of the opinion that the authority’s action was beyond what was necessary and was instead arbitrary by nature. It is true that pre-decisional hearing provides better safeguard compared to that of post decisional hearing, but there are certainly exceptional cases where the application of the post decisional hearing is necessary.
An exception to post decisional hearing is the rule of natural justice called the Audi Alteram Partem. But this exception exists till the time the temporary decision is made by the court. As soon as the scenario for the final decision comes, both the parties are supposed to be heard. An excellent example of post decisional hearing where Audi Alteram Partem is not a factor of consideration is the Prevention of Terrorism Act, 2002 (POTA). The central government even before issuing any notification, can declare an organization as a terrorist organization if it sees the necessity to. In such grounds the scope of the pre-decisional hearing is minimal. Under Section 19 of the same Act, the organization can itself approach the government if there is a requirement of reviewing the decision. Therefore, in which situations, there is no violation of the Principles of Natural Justice.
Another example of a situation where the court cannot wait for the pre-decisional hearing and have to revert to post decisional hearing is in case of national emergency for example approach of any natural calamities, terrorist acts, pandemics, etc. If any area had been devastated due to flood and its effect, it is not possible to issue notice notifying people at large by the centre who has appointed vehicles to rescue the affected individuals. A post decisional hearing is comparatively less effective than pre-decisional hearing. The court itself points that for any authority the opinion to revert back is not welcoming for it finds comfort in clinging to a decision that was made before and quashing the same may not deliver a satisfactory result as well. When the cases revolve around the atmosphere of dismissal and the consequence of the same is relevant for the concerned parties, post decisional hearings are not preferred much by the courts.
Post decisional hearing is also adopted by courts when interim orders are passed by the court in place of pre-decisional hearing then and there arises a situation to provide relevant justification for the presence of natural justice in the judgement of the case. Post decisional hearing has been able to gain significance in recent days. As there comes a growing need of delivering administrative actions as fast as possible without giving a pre-decisional hearing, has led to the development of the concept of post decisional hearing. There are several times that the court has to provide post decisional hearing in order to avoid elimination of the entire purpose on which the case stands. In such a situation providing post decisional hearing is the only way to be in compliance with the Principles of Natural Justice. The very rule of Audi Alteram Partem has gained a dynamic nature with administrative and legislative growth. Therefore, the implementation of the Principles of Natural Justice can be carried out by post decisional hearing.
Although the establishment of the concept of post decisional hearing was done in the case of Maneka Gandhi v. Union of India, the theory of post decisional hearing was adopted in several other cases that followed the former case. In Swadeshi Cotton Mills v. Union of India (1981), the management of the petitioner’s company was taken over by the government authority without providing any notice to the petitioner’s company under the statutory provision of Industries (Development and Regulation) Act, 1951 on the grounds that the protection of the goods produced in the company was on the verge of reduction and required maintenance to safeguard the same. The responsibility of managing the company was provided to National Textile Corporation Limited for a span of five years provided. The Act vests power on the central government to issue orders towards any public industry that is failing to function properly. The questions that were raised in the court were:
1) If any Act provides the implementation of post decisional hearing, will the scope of pre-decisional hearing in the same be absent completely?
2) Is there a need for observing the rules of Natural Justice from the government’s end before issuing any order?
The Supreme Court was of the opinion that the concept of post decisional hearing does not intend to exclude the pre-decisional hearing unless the same has been prescribed by the Act in concern. Further, the court was of the opinion that the government did violate the Principles of Natural Justice by not providing scope to the company being heard. The Supreme Court once again recognized post decisional hearing and inferred that there arise circumstances where it becomes difficult to provide prior notice of being heard and necessary actions are taken by concerned authorities but the same is carried out by remedial hearing.
This was also observed by the apex court in the case of Mohinder Singh Gill v. Chief Election Commissioner (1977). The effectiveness of post decisional hearing was decided in the case of K.I Shepard v. Union of India (1987). In this case, there was an amalgamation of banks under the Banking Regulation Act, 1949. In this procedure of coalition, several employees were removed without being aware of the same from before and were also not given the opportunity to be heard. The employees were of the opinion that Section 45 of the mentioned Act was the governing statute for amalgamation. The Section expressly provides the procedures that are required to be followed while carrying out an amalgamation of banks. It also mentions that the employees who were already existing should continue to be under similar terms and conditions. The act of the bank was in contravention with this Section of the said Act. The court provided meaning to Section 45 and ordered to bring back the employees who were removed. As there was an administrative function that was involved, the court referred to the case of State of Orissa v. Dr Binapani Dei & Ors (1967). where it was clearly mentioned that administrative order which had civil consequences attached to it must abide by the principle of natural justice under any cost.
A similar kind of a case which involved the application of natural justice in an administrative function was the case of A.K.Kraipak Ors. v. Union of India (1969). The court opined that if the objective behind the principles of natural justice was to establish a fair procedure and thereby, protect individuals from any kind of unfair means then the same must be applied to any kind of administrative function. Thus, the conclusion that the court drew from the above cases was that be it any kind of administrative roles performed by the executive organ of the government, it will fall under the periphery of the Principle of Natural Justice. The rising conflict between the application of the Principle of Natural Justice and that of post decisional hearing was a subject- matter of discussion in the case of H.L.Trehan v. Union of India (1988). Caltex Oil Refinery(India) Ltd was taken by the Central Government under its ambit on the basis of Section 3 of The Caltex (Acquisition of Shares of Caltex Refining (India)Ltd and of the Undertakings in India of Caltex (India) Ltd. Act 17 of 1977 which expressly lays down that all the shares of the said company were under the hold of the Central Government. The petitioner held the argument as to the said provision was in contravention of certain provisions of the India Constitution that held the Principles of Natural Justice intact. Further, there were certain decisions that were taken by the authorities without even informing the petitioners. The apex court was again of the opinion that post decisional hearing does not restrain natural justice. The court also observed that the authorities concerned while exercising decisions, were proceeding with the same with a narrow mind and therefore it was difficult for them to change the decisions that were already taken by them. Thus, by providing a post decisional hearing in such a case, the authorities will contravene the Principles of Natural Justice. This was one such case which added to the development of post decisional hearing in the Indian judiciary. The court could easily determine the efficiency and effectiveness of the post decisional hearing.
The law of post decisional hearing was further elaborated by the Supreme Court of India in the case of Canara Bank v. V.K. Awasthy (2005). The court, in this case, suggested that when it comes to judging the legal validity of the post-decisional hearing, the legal formulations that are associated with the facts of the concerned case cannot be eliminated as the motive of natural justice is to prevent accidents in the practice of administrative justice. In this case, no pre-decisional hearing was provided but the authority in concern did provide the scope of personal hearing although the same was not required as to the circumstances associated with the case. The apex court reached the conclusion that post decisional hearing can annihilate the deficiency in the procedure of carrying out pre-decisional hearing and in such process natural justice would not be violated. An opinion was made by the Supreme Court in the case of Shekhar Ghosh v. Union of India (2006) as to if the pre-decisional hearing is backed by legal support, then in such scenario post decisional hearing can turn out to be improper, especially when the concerned authority has preconceived its previous decision which will be the actual conclusion.
In Liberty Oil Mills v. Union of India (1984) a plea was brought to the court to look after the violation of natural justice. The Supreme Court while ruling the case held that it might be that the situation on which the case has been built might not prefer pre-decisional hearing and therefore, post decisional hearing will be carried out in any place where there is an immediate danger and action needs to be taken immediately. In such a situation the courts need to follow harmonious construction so that the grounds of natural justice are not infringed with. It is in the case of CharanLal v. Union of India (1989) where post decisional hearing received an exceptional exposition of legitimacy. In this case, the court held that if any statute does not necessarily eliminate the scope of pre-decisional hearing rather throws light more upon post decisional hearing, then in such circumstances the preference of post decisional hearing over the pre-decisional hearing will be legitimate. This case was identified with that of the Bhopal Gas Disaster (Processing of Claims) Act, 1985. Therefore, the fact that necessity determines hearing has been established by courts in several cases. The consciousness of the court to adopt natural justice along with regulating the efficiency of administrative function always exists in any judgement being delivered by the concerned court. The usage of post-decisional hearing is a reasonable one. It is adopted to prevent situations from getting worse. Although post-decisional hearing at times challenges the existing Principles of Natural Justice, never has the situation arise that the hearing has proved out to go beyond the Principles of Natural Justice. Therefore, post-decisional hearing is a welcoming step in the legal jurisprudence with a broad scope and nature.
Post decisional hearing is a systematic application of statutory provision as the circumstances demand. This kind of hearing cannot be limited to books only for the essence of the same comes out as soon as it is applied in the real world. Whenever a pre-decisional hearing is absent or lacks basic necessities, it is the post decisional hearing that comes to rescue. Although there exist several cons of post decisional hearing, pros of the same cannot be ignored in totality. Courts have always preferred post decisional hearing in times of necessities and speedy remedies for ultimately the motive behind any hearing is remedying injustice.
The Maneka Gandhi case has constitutional importance for the principle established in the case has been a framework for deciding the fate of several other cases after that very case as well as in future. The relevance of the decision made in the case is recognized in today’s time as well. The Maneka Gandhi case broadened the horizon of Article 21 of the Constitution of India. Article 21 that lays down provision for personal liberty in the country is also an Article that establishes the Principles of Natural Justice in the Constitution. The judgement delivered in this case was a balanced judgement that will be praised and recognised for several other years and in times to come by the Indian Constitution. Once again the Constitution of India was provided with the meaning of its establishment that is efficiency with fairness. Post-decisional hearing, a flexible principle has been important and follows a great usage not only in India but across the world as well. An exceptional rule by nature, the hearing has been adopted and will be used only in cases of extremity and urgency. The Maneka Gandhi case provided a necessary return gift for the Indian judiciary to apply and use.
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