This article is written by Dhruv Bhardwaj, a student of Amity Law School, Delhi. In this article, he talks about the Doctrine of Post-Decisional Hearing which comes under the Principles of Natural Justice under Administrative Law.
The standards of natural justice have been developed by the Courts to control the activity of the regulation of power with the goal that it doesn’t prompt the discretion of the despot’s ruthless use of power. One of such standards is the guideline of audi alteram partem which necessitates that nobody will be censured unheard and it has gotten its best blossoming in the acknowledgment and implementation of the concept of post-decisional hearing. In the event that in a given case, an earlier hearing would defeat the purpose and reason of the exercise of power, it tends to be abstained from yet should be substituted by post-decisional hearing.
Right to Hearing
Natural Justice is an ethico-legal idea which depends on natural sentiment of individual. Rules of natural justice have been created with the development of civilisation and the content thereof is often considered as an appropriate proportion of the degree of civilisation and Rule of Law which is predominant in the network.
It is a very much settled law and there is no contest that the principles of natural justice are relevant to judicial and quasi-judicial capacities however the most significant inquiry is whether these principles are material to administrative activity. Some time ago, courts had taken the view that the principles of natural justice were inapplicable to administrative requests.
In Kishan Chand v. Commissioner of Police, representing the Supreme Court, it was seen that the impulse of hearing before passing the order suggested in the legal saying audi alteram partem applies just to judicial or quasi-judicial procedures however as of late on account of A.K. Kraipak v. Union of India, it was held that up to this point, the Courts were of the supposition that the utilization of the principles of Natural Justice was anything but a statutory obligation except if the body was legally necessary to act as indicated by it. It was additionally held that if the sole reason for the Rules of Natural Justice was to prevent injustice, it did not make a lot of sense about why these principles shouldn’t be connected to Administrative Decisions.
Natural Justice also encompasses Right to Hearing. The purpose behind this is that the right to hearing is a Code of Procedure, and subsequently covers each phase through which an administrative order passes. Right to hearing is a significant defence against maltreatment of administrative power.
Natural Justice is the peer of American “due process.” Notice and opportunity to be heard are essentials of due process of law. In India likewise, significance is spread out to the benchmarks of natural justice under the Constitution. Article 311 of the Constitution stresses on ‘Right to Hearing’ being a basic standard of Natural Justice. In deciding the legitimacy of sensible limitations, Courts have alluded to the guideline of natural justice. The procedural reasonable restriction is equated with the American due process of law.
Principles of Natural Justice are exemplified under Articles 14 and 21 of the Constitution. With the incorporation of ‘due process’ in Article 21 of the Constitution, all that reasonableness which is revered in the principles of natural justice can be seen into Article 21 when an individual is denied of his life and individual freedom. As regarding the other areas, Article 14 embodies the principles of natural justice.
The position is that Article 14 applies not exclusively to unfair class enactment yet additionally to State activity which is despotic or prejudicial. The reason is that infringement of natural justice brings about arbitrary conduct and all things considered infringement of natural justice is an infringement of the postulate of uniformity consolidated in Article 14.
In this manner, principles of natural justice are grounded in the Constitution of India. At last, it very well may be said that the skyline of right hearing, regardless of whether as a feature of natural justice, or fairness are continually widening. Procedural fairness coupled with natural justice is to be suggested at whatever point an action affecting the rights of the parties has taken place.
Audi Alteram Partem
This rule underlines the fact that nobody ought to be censured unheard. In a cultured society it is expected that an individual against whom any action is looked to be taken, or whose privilege and right is at stake, will be given a chance to defend himself.
An essential standard of natural justice is that before any move is made, the person affected must be given notice to show cause against the proposed activity and look for his clarification. It is a sine qua non of reasonable hearing. Any order which is passed without a notice goes strictly in contravention of the principles of natural justice and is declared to be void ab initio.
Regardless of whether there is no mention in the enactment about giving of notice, if the request affects negatively, the privileges of an individual, the notice is required to be given. Further it is important that the notice must be clear, explicit and unambiguous and the charges ought not be unclear and questionable. It isn’t sufficient that notice in a given case be given, it must be satisfactory too. The question of sufficiency of notice relies on the certainties and conditions of each case.Moreover, the notice must give a sensible timeframe to agree to the directions referenced in it. Along these lines, to give 24 hours time to disassemble a structure affirmed to be in a broken down condition isn’t appropriate and the notice isn’t substantial.
The second prerequisite of the audi alteram partem maxim is that the party concerned must be given a chance of being heard before any negative move is made against him.
Meaning of the term Post-Decisional Hearing
Pre-decisional hearing is a hearing managed before making a choice or sanctioning an order. Post-decisional hearing, as opposed to its counterpart, is a hearing given by the adjudicating authority subsequent to making a choice or a decision.
As a general rule, a hearing should be afforded before a decision is taken by an authority.
In the leading case law Ridge v. Baldwin which is sometimes referred as the be all and end all of Natural Justice, a Constable was accused of conspiracy followed by the prosecution by the authorities but in the end he was held not guilty and was acquitted of blame. While the judge was deciding the matter, certain remarks were made by the judge against the character of the Constable based on which he was expelled from his service. The Court of Appeal held that the committee which had expelled the Constable from his job as a result of the remarks made by the judge against his character, was exercising Administrative and Judicial or Quasi-Judicial power and therefore the Principles of Natural Justice did not fit here. Soon, this decision was reversed by the House of Lords by a 4:1 majority and the order of dismissal was therefore, not upheld.
The principle of the post-decisional hearing was propounded by the Supreme Court in Maneka Gandhi v. Union of lndia. For this situation, the Supreme Court set out the rule that if in the interest of the general public, quick action was fundamental and it is impractical to manage the cost of a hearing before the decision, it ought to be managed after the decision. The passport of the petitioner who also happened to be a journalist was seized by the Government of India in light of a legitimate concern for public wellbeing.
The petitioner was not given any chance before making the impugned move. At the point when the legitimacy of the impoundment request was checked, the Government battled that the use of the audi alteram partem rule would have gone against the very reason for seizing the passport.
Despite the fact that the Supreme Court dismissed the conflict, it acknowledged the principle of post-decisional hearing in instances of outstanding nature. lt set out the recommendation that wherein an emergent circumstance, requiring prompt activity, it is not possible to give prior notice of hearing the preliminary action should be soon followed by a full remedial hearing.
A similar methodology was employed by the Supreme Court in Swadeshi Cotton Mills v. Union of lndia where a void administrative choice was approved by post-decisional hearing. An order assuming control over the administration of an organization by the Government without earlier notice or hearing was held to be bad as it abused the audi alteram partem rule. Be that as it may, the Court approved the impugned order on the grounds that the Government had consented to give post-decisional hearing.
In Liberty Oil Mills v. Union of lndia a request for examination was tested on the ground of contravention with the principles of natural justice. The Supreme Court saw that maybe that the chance to be heard may not be pre-decisional, it might essentially be post-decisional where the danger to be averted is imminent, or the action to be taken can brook no delay.
In Shepherd v. Union of India, a request was issued to amalgamate certain banks with some Nationalized Banks. Certain representatives of Private Banks were prohibited from working in the Nationalized Banks. Thus, their service was ended without allowing them a chance to be heard. Dismissing the proposition for post-amalgamation hearing, the Supreme Court felt that, “there was no reason to think about a post-decisional hearing.”
In Trehan V. Union of lndia, a governmental organization issued a circular adjusting prejudicially the terms and conditions of its employees without giving a chance of hearing. The legitimacy of the circular was tested on the ground of infringement of the principles of natural justice. The organization contended that after the censured circular was issued, an open door was given to the employees with respect to the modification made by the circular. Along these lines, a plea of post-decisional hearing was advanced. Dismissing the contention, the Supreme Court noted: “As we would see it, the post-decisional chance of hearing does not buy in to the rules of natural justice.
The authority who sets out on a post-decisional hearing will ordinarily continue with a shut mind and there is not really any possibility of getting a proper consideration of the representation at such post-decisional hearing.” In Bari Doab Bank V. Union of lndia, the legislature passed the request for bank under Banking Regulations Act, 1949 of the petitioner Bank. It was held by the Supreme Court that applicants were not qualified for pre-decisional hearing before passing a request as post-decisional at the phase of filing issues with the draft plan would be adequate.
The teaching of post-decisional hearing has been given an exceptionally legitimate exposition in Charan Lal v. Union of lndia, which is a case identifying with the Bhopal Gas Disaster (Processing of Claims) Act, 1985. The Supreme Court held that a general rule unique in relation to an absolute rule applying consistently is that where the statute does not reject the rule of pre-decisional hearing but rather ponders over post-decisional hearing which adds up to full review of the benefits of original order, at that point such a resolution would be interpreted so that it bars audi alteram partem rule at the phase of pre-decisional hearing. On the off chance that the rule is quiet on the purpose of giving pre-decisional hearing, at that point administrative activity after post-decisional hearing is legitimate.
It is presented that the below mentioned observations of Sarkaria J in Swadeshi Cotton Mills in regards to pre-decisional and post-decisional hearing must consistently be recollected by each adjudicating. The core of this case was that post-decisional hearing can’t go about as a substitute for pre-decisional hearing. This demonstrates post-decisional hearing is acknowledged and consented to, however it simply should be applied in the appropriate circumstances.
The application of this doctrine does not come with a strait jacketed formula but is rather based on the facts and the situation of the case. In the event where pre-decisional hearing cannot be applied, post-decisional hearing can come to the rescue.