This article is written by Vanessa Puri. This article talks about the right to hearing and the situations in which it would be possible to carve out exceptions to this right.
The right to hearing is not an absolute right. It is possible to carve out exceptions to this right in the situations of emergency, public interest and policy decisions, legislative action when there is a conflict of interest.
This blog is divided into two parts. In the first part, the exception carved out under the category of academic disqualification shall be discussed. I find this exception highly problematic since it imposes a one size fits all approach to the candidates undertaking the academic endeavor. The second part of this blog discusses the other categories under the exceptions to right to hearing and the cases under those categories.
All these exceptions to right to hearing fall prey to a contrary Rule of Law argument, which imposes the three-pronged A.V. Dicey requirements of:
- Supremacy of law.
- Equality before the law.
- The predominance of the legal spirit.
This argument is to be made on the fact that such exceptions cause differential treatments to certain cases by flagging them under the category of exceptions while letting the other cases follow the conventional path where the right to be heard is a natural right. However, given that there are certain characteristics common to the cases under every category- the determination of differential treatment is not so discretionary but rather, objective.
For this reason, this blog is an attempt to generalize the identifiable characteristics under a category so that the exceptional cases are immunized from the attack of being arbitrarily differentially treated. There has been an attempt to expropriate certain persistent characteristics, which are found to be occurring in cases across that category. This has been done to be able to find certain ingredients that may help assess objectively if there is a case to be made under that particular category of the exceptions to the right to hearing. Any loopholes or conspicuous absence of arguments made has been pointed out subsequently.
First, let us examine the exception under the category of academic disqualification. This is considered problematic since it fails to make space for the differential needs of every student. The insensitivity of the education system where every candidate is assessed against the same standard seems to have reflected in the Court’s opinion as well.
ACADEMIC DISQUALIFICATION
Jawaharlal Nehru University v. B.S Narwal[1]
On the basis of the assessment of a student’s work over time by competent authorities, the work was declared to be unsatisfactory. Consequently, the student was removed from the rolls on the ground that the academic performance was not satisfactory. The student in this situation was not allowed to claim the principles of natural justice. Expulsion resulting from indiscipline would be a different scenario, though.
The reasoning behind this judgment was that this expulsion was based on academics and not indiscipline where the University had to discipline the student and the Court had to balance this against the freedom and justice of the student.
The problem with such reasoning is that since the Courts left the “mere” academic assessment to be best judged by the University- firstly, the judgment legitimizes the idea that there is only one barometer of merit, failing which candidates need to understand that she or he is not good enough or suited enough to pursue the aim for which the assessment was being conducted.
The University’s entrance exam is the assessment meant to test whether a student can brave the severity of the academic life in the particular desired environment. Given that this University reposes so much trust in their examination system, it is required to scratch the surface to find out why a student who passed the muster of this entrance examination could not even pass the assessments she or he was tested on.
Secondly, let us inspect the remaining categories of exceptions to the right to hearing and create persistent ingredients, which make the argument for falling under these exceptions more objective and easily identifiable.
NECESSITY
These two cases set the precedent that the doctrine of necessity can be invoked whenever the question of a conflict can be answered with, if not them, then who. In other words, whenever a question is raised on the creditworthiness of a particular authority doing a duty, if the answer is the absence of another authority able and authorized to carry out the same duty- then the former authority whose creditworthiness is in question, shall be allowed to do so.
For example, in the Charan Lal Sahu case, when the Union was both a stakeholder as well as the victim- the conflict was answered with the idea that in the absence of any other sovereign body to represent the victims, it is only the state that can come to their rescue. Therefore, the fact of the Union’s conflict of interest was ignored to accommodate the lack of another sovereign body and forgo the Principles of Natural Justice.
Similarly, in the next case, given that judges themselves belong to the politics of the judiciary, the question was then about their creditworthiness to be able to appoint other judges freely, fairly and objectively. The doctrine was invoked again since there was the absence of any other body authorized to make such an appointment. In case another body was deputed to this task, it would result in a smudging of the doctrine of separation of powers, and so an exception to the Principles of Natural Justice could be created.
Charan Lal Sahu v. Union of India[2] (falls under CONFLICT OF INTEREST BUT AUTHORITY NOT ADJUDICATOR/LEGISLATIVE ACT and NECESSITY)
Given that the Union of India held a twenty-two percent stake in Union Carbide Company, it became a joint-tortfeasor in the Bhopal Gas Tragedy. The question was whether the act i.e. Bhopal Gas Disaster Processing of Claims Act, 1985 was constitutionally valid since it stipulated that the Central Government must represent all the victims in this case. Due to the Central Government’s stake, there was a conflict of interest between the government and the victims.
However, the Court applied the doctrine of necessity to hold that in the absence of the Union of India, there is no other sovereign body that could rightfully represent the victims, and hence the validity of the Act and the consequent representation were upheld. The validity of the Act was also questioned on the ground of affected parties being deprived of a hearing and hence, it being violative of Audi Alteram Partem. The Court upheld the Legislation and said that so long as the legislation is within the competence of the Legislature, no principle of natural justice is attracted.
Indira Nehru Gandhi v. Shri Raj Narain[3]
The question before the Court was whether judges should be allowed to appoint judges. The Court applied the doctrine of necessity to say that in the absence of judges appointing other judges, it would result in a smudge of separation of powers and hence, the system was upheld and the Principles of Natural Justice were held inapplicable.
EMERGENCY/URGENCY CLAUSE
It is necessary at this juncture to make a distinction between two types of hearing:
- Pre-Decisional Hearing: This is given where parties who have affected a matter of rule. If a prior hearing is not possible, as it would frustrate the object and purpose of the exercise of power, it can be dispensed with but must be followed by post-decisional hearing.
- Post-Decisional Hearing: A hearing given by the authorities after taking a decision or making an order is known as a post-decisional hearing. According to De Smith, ‘a prior hearing may be better than a subsequent hearing but a subsequent hearing is better than no hearing at all[4].’
In these cases, there is an attempt to balance two competing interests. One is the public interest of carrying out the task in a speedy and expedited manner due to the situation of emergency or due to the requirement of the statute. This is balanced against the right of an individual to be heard.
Given the overpowering alarm clock of urgency, it manages to trump the right of the individual to be heard. However, since the right of an individual to be heard is also a very powerful part of the checklist of a fair trial, this is accommodated in the form of either a Pre-Decisional Hearing or a Post-Decisional Hearing, whichever can be balanced better with the emergent nature of circumstances.
Maneka Gandhi v. Union of India[5]
Maneka Gandhi’s passport was impounded under Section 10(3)(c) of the Passport Act of 1967 for the public interest. When Maneka Gandhi demanded reasons behind such impounding, the Ministry of External Affairs refused to produce any reasons to protect the interests of the general public. When she filed a writ petition under Article 32 before the Supreme Court, she challenged this act of impounding her passport as violating her fundamental right under Article 21.
The Court had a number of issues to decide from, however, the most relevant for this blog is the issue about whether the order of the Regional Passport Officer is in contravention to the principles of natural justice. The Court on this issue recognized the post-decisional hearing doctrine and said that wherever there is a situation so emergent that it requires immediate action, it is impossible to provide a prior notice of hearing to be followed by a full remedial hearing. The doctrine of the post-decisional hearing was then highlighted for the satisfaction that it may cater to the aggrieved on being heard, even though at a belated stage.
Swadeshi Cotton Mills v. Union of India[6]
According to Section 18 AA of the Industries (Development and Regulation) Act, the government can take over an industry after an investigation. Clause (1) of the same section says that such a take over can happen without a notice and hearing on the ground that production has been or is likely to be affected and hence, immediate action is necessary. The question before the Court was whether the word “immediate” in this Section is enough to constitute a ground of deprivation of Audi Alteram Partem.
The Court held that the word “immediate” in this Section does not take away the right to hearing of parties. It said that even in emergency situations the competing claims of ‘hurry and hearing’ are to be reconciled, no matter the application of the Audi Alteram Partem rule at the pre-decisional stage may be a ‘short measure of fair hearing adjusted’, attuned and tailored to an exigency of the situation. In this case, the Court held that where a pre-decisional hearing is dispensed with, a post-decisional hearing must be ensured.
CONFIDENTIALITY
Cases, which fall under this category, will be a competition between the public interest of disclosure and accountability versus the public interest in surveillance. After such a balance is struck, the outweighing public interest must be allowed to prevail.
S.P. Gupta v. Union of India[7]
The numerous petitions before the Supreme Court put forth Constitutional questions about the appointment and the transfer of judges. Along with this the independence of the Judiciary was also under question. To establish one of the issues about the cogency of the orders of the Central Government on the non-appointment of two judges, the petitioners claimed that the correspondence between the Chief Justice of Delhi, the Chief Justice of India and the Law Minister must be disclosed. The Additional Judge of a High Court was denied the opportunity of being heard before his name was dropped from being confirmed.The ruling of the case was based on three prongs:
- The privilege under Articles 74 (2), which provides immunity to the advice of the Council of Ministers to the President from being questioned in Court, was claimed.
- Sections 123 of the Evidence Act according to which without the permission of the head of the concerned department, evidence from unpublished state records on state affairs cannot be given.
- Section 162 of the Evidence Act provides that a witness summoned to produce a document before a court must do so, and the court will decide upon any objection to this.
The first two things to be checked are – firstly, whether the consultation, which took place between the Central Government and the Ministers of the Cabinet, was complete. Secondly, if this consultation was complete then whether the decision was based on relevant grounds. In this case, both these grounds were absent, however, it finds itself ruled to quite the contrary.
Malak Singh v. State of Punjab[8]
The Court said that the Police Register is a confidential document and no member of the public or the persons whose names are entered in it can have access to it since when we balance the principles of natural justice against surveillance, in this case, the principles will find themselves trumped by surveillance.
LEGISLATIVE ACT
In such cases, the unifying thread is the presence of a statute where any act was done as a consequence of the power conferred under that statute, shall be treated as an act done under the directions of the statute. Consequently, since the Act does not provide for any redressal mechanism to the Courts, then such a mechanism cannot be read into it. It is essential that in such cases, the determination of, for example, grounds of employment, grounds of disqualification etc. are very objective and have a mathematical exactitude so that the scope of discretionary injustice to those affected by the statute can be minimized.
L.N.M. Institute of Economic Development and Social Change v. State of Bihar[9]
The Bihar Legislature used the Bihar Private Educational Institutions (Taking Over) Act, 1987 to take over an educational institution, which was named after the state’s Chief Minister. The employees were also terminated under the provisions of the said Act. The Court held that where there is a legislative direction, which provides for the termination of employee services, compliance with the principles of natural justice cannot be read into this direction. If terminations are effected without any hearing being granted to employees, due to the absence of a provision of hearing in the statute, no exception from the hearing can be carved from the same.
PUBLIC INTEREST & POLICY DECISIONS
Where there is a decision, which can only be taken by a prudent, knowledgeable man- perhaps an expert in the field, and then the validity of such a decision is questioned in a Court of law, the general answer that this category creates that given that the expert applied his or her know-how, the Court will not interfere. The only caveat to this is that the decision must not be arbitrary or capricious. There is a potential loophole here-where through evolution a Court may examine the merits of such a decision thoroughly and couch it as an inspection on whether the decision was arbitrary or capricious. And consequently, decisions, which are actually not even arbitrary or capricious, may be struck down.
To illustrate the above, in the BALCO Employees case- an investment decision was made by the financial advisors to the Government. When the employees approached the Court, it said that so long as the decision is not so grossly arbitrary, it would not interfere. Similarly, in the Gullapalli II case, it was only either a bureaucrat of the Department who could evaluate the objections or a Minister of that Department. Anybody else would not have the sufficient technical knowledge to be able to check if the demurs meet the desired degree.
BALCO Employees Union v. Union of India[10]
The government took a policy decision to disinvest in a public sector undertaking. The employees challenged this decision. The court held that in policy decisions over economic matters, principles of natural justice have no role to play. Moreover, so long as the policy decision to disinvest is not capricious, arbitrary, illegal or uninformed and is not contrary to law, it cannot be challenged for violating the principles of natural justice.
G. Nageswara Rao v. State of Andhra Pradesh (II) (Gullapalli II)[11]
In the case of Gullapalli Nageswara Rao v. APSRTC, the order of the government, which nationalized road transport, found itself challenged by the petitioner. The ground of the challenge was that the Secretary of the Transport Department heard the objections while he also initiated this scheme. The Court on the presence of bias quashed the order and ruled that consequently, no fair hearing could happen.
In Gullapalli II, the hearing of this objection was passed onto the Minister. The Petitioner challenged this. According to the Petitioner, the Minister functioned as the head of the department from where this scheme originated. And now, the same minister was being made to assess the objections against such a scheme.
The court while dismissing the petition held that:
- The Minister was not a part of the Department in the same way as the Secretary.
- Departmental bias is the outcome of a situation where the judge and the prosecutor are combined in the same department.
Most departments, which initiate a matter, also decide it. Therefore, the contention of the Petitioner was rejected.
I believe, that the Doctrine of Necessity could also have been invoked in this case. This is because the question became of the creditworthiness of the authority of the Minister. The answer was the same as that which is given in the Necessity cases which is, in the absence of this particular Minister, there is no other authority or office that could competently assess the merit of the objections raised by the party. And so, based on this the Principles of Natural Justice may be forgone.
With the aim of providing a time-bound hearing and disposal of complaints, Rajasthan government on Monday implemented the Right to Hearing Act. The desert state is the first one to ensure a right to hearing for the common man. The Act provides for establishment of information and facilitation centre including citizen care centre and help desk for effective implementation. The complainant can appeal to the first appellate authority against the decision of public hearing officer if he is not satisfied. Provision of penalty from Rs 500 to 5,000 has been made in the Act.
REFERENCES
[1] (1980) 4 SCC 480
[2] (1990) 1 SCC 613
[3] 1975 Supp SCC 1
[4] Judicial Review of Administrative Action, 5th edn., 1980, p.170.
[5] (1978) 1 SCC 248
[6] (1981) 1 SCC 664
[7] 1981 Supp SCC 87
[8] (1981) 1 SCC 420
[9] (1988) 2 SCC 433
[10] (2002) 2 SCC 333
[11] (1959) Supp (1) SCR 319
