This article has been written by Manpreet Kaur, from Lovely Professional University, Phagwara

Table of Contents

Introduction:

In order to prevent the despot’s merciless use of power, the courts have devised the principles of natural justice to regulate the activity of power regulation. One of these principles is the principle of Audi Alteram Partem, which mandates that no one will be condemned without being heard. This principle has flourished the most in the recognition and application of the idea of post-decisional hearing. A post-decisional hearing should be substituted for an earlier hearing in cases where doing so would undermine the intent and rationale behind the exercise of authority.

In an effort to find the correct balance between administrative effectiveness and individual fairness, the concept of a post-decisional hearing has developed over time. Pre-decisional hearings are those held by the authorities prior to the making of a decision or judgement, and post-decisional hearings are those held by the authorities following the making of the decision (Provisional). The idea of a post-decisional hearing provides individuals. The authorities can only make a preliminary decision-not a final one-without consulting the party in issue, which is one of the most crucial things to keep in mind at a post-decisional hearing. In order to undermine the goal of delivering a fair hearing and make it less effective than a Pre-Decision Hearing, the objective is to make it harder for the authorities to change their minds after the Final Decision (similar proposition was held by the Apex Court).

In Kishan Chand v. Commissioner of Police, the Supreme Court was represented, and it was determined that the legal principle of hearing before passing judgement, or Audi Alteram Partem, only applies to judicial or quasi-judicial procedures.

The Term “Post-Decisional Hearing” And What It Means

Before making a decision or approving an order, a pre-decisional hearing is held. In contrast to its counterpart, a post-decisional hearing is one that the adjudicating authority has after reaching a decision. A hearing should typically be provided before an authority makes a decision. A Constable was suspected of conspiring and prosecuted by the government in the well-known case Ridge v. Baldwin[3], which is frequently considered to be the pinnacle of Natural Justice, but in the end, he was found not guilty and absolved of culpability. While making his decision, the judge made some comments about the constable’s character that resulted to his dismissal from the police force.

The Court of Appeal determined that the committee that dismissed the Constable from his position due to the judge’s criticism of his character had used both administrative and judicial or quasi-judicial power, negating the application of natural justice principles in this case. The order of dismissal was not sustained since the House of Lords swiftly reversed this decision with a 4:1 majority.

Concept Of Post Decision Hearing:

Concept of Post Decision Hearing The idea of Post Decision Hearing has been developed to maintain a balance between administrative efficiency and fairness to individuals. In Post Decisional Hearing, an individual is given an opportunity to be heard after a tentative decision has been taken by the authorities. In certain situations, it is not feasible for the authorities to have a normal pre-decisional hearing and decisions are being taken on first instance before providing the individual to present his views, than it would be consider reasonable if the authorities provide Post Decision Hearing as well ,as it will be in compliance with the Principle of Natural Justice. In Post Decision Hearing, the prominent point is that authorities must take only a tentative decision and not a final decision without hearing the party concerned. The fundamental objective is that when a final decision is taken than it becomes difficult for the authorities to reverse it and the purpose of providing a fair hearing gets defeated,therefore, for an accused it turns out to be a less effective than pre decision hearing.

With the introduction of this concept, the prospect of Principle of Natural Justice has widened. The Supreme Court has been emphatic and prefers for Pre Decision Hearing rather Post Decision Hearing which must be done only in extreme and unavoidable cases. It strengthens the concept of Audi Alteram Partem by providing Right to Heard at a later stage. The Supreme Court has different views on Post Decision Hearing, on whether providing opportunity to be heard at a later stage sub serves the Principle of Natural Justice or not, or can post decision hearing be an absolute substitute for pre-decision hearing.

The Supreme Court has recognized the concept of Post Decision Hearing in many of its judgement. There are no strict principles related to whether Post Decision Hearing is an adequate means to justify and satisfy the rule of Audi Alteram Partem, it depends on the dimensions and facts of every case.

Development of Post Decisional Hearings:

Maneka Gandhi v. Union of India

This case is a landmark judgement on this point and was instrumental in introducing the concept of Post Decision Hearing in Indian Legal Jurisprudence.The petitioner was provided with a notice by the Regional Passport Office, Delhi to submit the passport within seven days of her receiving the notice. The decision was made by the Government of India under Section 10(3)(c) of Passport Act,1967 on the ground of Public Interest. The petitioner immediately asked the Passport Office to furnish the grounds on which her passport is impounded upon as provided under Section 10(5), the Government refused to provide the same stating in the interest of the general public, they will not provide the reasons for this order. The petitioner filed a writ petition challenging the order passed by the Government.

Analysis of few relevant Sections of Passport Act, 1967:

Section 10(3)(c) provide one of the ground on which passport could be impounded by the concerned authorities. The concern section states that in the interest of sovereignty and integrity of India, security of India or in the interest of General Public, the authorities have the power to take back the passport of that individual.

Section 10(5) makes it mandatory for the Government to provide reason to the concerned person regarding the impounding of his passport unless the Government is of the opinion that it may be against the interest of sovereignty and integrity of India or security of India or in the interest of general public.

Issues Raised:

1. Whether the Section 10(3)(c) of the Passport Act, 1967 violates the Fundamental Right provided under Article 14, 19(1)(a) or (g)?

2. Does Freedom of Speech and Expression confined to Indian Territory or it extends to foreign land also?

3. Whether the order passed by the Government intra vires to Section 10(3)(c)?

4. Should the Government abide by the Principle of Natural Justice and give the opportunity to the petitioner to be heard?

Contentions by the Petitioner

1. The petitioner raised the issue with regard to the violation of Article 14 of Indian Constitution while applying Section 10(3)(c) of the Passport Act, 1967. The arbitrariness and vagueness of the phrase “in the interest of general public” mentioned in section 10(3)(c) leads to excessive, unguided and unfettered power to the authorities, there exists no reasonable ground to make such an order.

2. The petitioner further argued that no opportunity to be heard was provided by the Government before passing this order under Section 10(3)(c), which violates the fundamental rule of Natural Justice, therefore the order should be made null and void.

3. The petitioner contended that her Right to Life is being violated by not allowing her to visit foreign country and they substantiated their argument by relying on Satwant Singh Sawhney v. D.Ramarathnam, Assistant Passport Officer. Government of India, New Delhi &Ors in which it was held that Right to Life includes Right to go Abroad.Article 21, Right to Life was also brought in by the petitioner. They stated that the any procedure prescribed by Law under Article 21 cannot be arbitrary, oppressive or unjust.

The petitioner stated that she is a journalist and for her professional work she had to visit foreign nation but through the order made by the Government her Right to free speech and expression and practice any profession provided under Article 19(1)(a) and (g) respectively is violated through this order, and therefore it must be struck down by the court. The petitioner stated that Article 19(1)(a) and (g) is applicable outside the Indian Territory also and for the same they brought Article 19 of Universal Declaration of Human Rights (UDHR), 1948 which declares that an individual must have right to express his views and speech across the globe without any hindrance, and our Constitution which came after this declaration abides by the same and hence an individual’s Fundamental Right under Article 19(1)(a) and (g) exists outside the Indian Territorial boundaries. Article 19 can only be revoked on the grounds provided under Article 19(6) and no such ground as provided by the order is mentioned in that provision. Right to go Abroad is peripheral right emanating from the right to freedom of speech and expression and is therefore covered under Article 19(1)(a).

Arguments by the Respondent

1. Regarding the issue of Article 19, the Respondents urged that Article 19 only provides the rights within the Indian Territory; it cannot be comprehended with right to go abroad and hence the order cannot be stated as violation of Fundamental Right as provided under Article 19. Right to go abroad was not connected integrally with freedom of speech and expression.

2. The Attorney General urged that Rule of Audi AlteramPartem must be excluded in the following case, as the purpose for which the passport was to be impounded may be frustrated. The holder of passport may leave the country; therefore audi alteram partem rule cannot in all fairness be applied while impounding a passport.

3. The ground on which the Government issued the order for the impoundment of passport was the fear that the petitioner may leave the country and not provide evidence to Shah Commission which was appointed by the Government.

Judgement

1. The argument presented by the Attorney General regarding the applicability of audi alteram partem was rejected by the Court. The court stated that is necessary for the authorities to comply by the principle of Natural Justice and an opportunity to be heard must be provided to the petitioner before passing any final order.

2. Court held that procedure established by section 10(3)(c) of Passport Act, 1967 is in conformity with the requirement of Article 21. The Act provides the ground on which the passport could be impounded and this procedure was comprehensively recognized by the Court.

3. While considering the issue concerning Article 14, court categorically stated that certain reasonable ground must be there while differentiating between two subjects which were given in the case E.P. Royappa v. State of Tamil Nadu & Another. In present case court disagreed with the petitioners view and held that Passport Act,1967 clearly provides the ground on which passport could be taken back by the authorities and the powers given to these authorities are not unfettered and excessive. Therefore under Section 10(3)(c),power conferred to the authorities are in conformity with Article 14.

The court discussed R.C.Cooper v. Union of India to mention the rule of direct and inevitable test which was propounded in this case. The respondent argument regarding Article 19 that Right to go abroad does not affect Article 19 and also no intention exist on part of the authorities to exclude Fundamental Right was not appreciated by the court. Court observed that the decision to impound passport may affect a person’s profession or his free speech and expression though not directly but inevitably it may harm their fundamental Rights. But in this particular case court rejected the petitioner argument and held through this order Article 19 is not violated as the purpose for which she had to visit was not clearly stated. Court also held that certain Fundamental Rights can be exercised even beyond the territories of India. The petitioner heavily relied on the American.

Judgement in Kent v. Dullas in which court held that right to travel is our Fundamental Right. Finally the court did not pass any order as assurance was provided by the Attorney General to provide the petitioner with the opportunity to present her views within two weeks (Post Decisional Hearing) and prior to the takingof final decision authorities will consider the views given by the petitioner. Hence first time in Indian Legal Jurisprudence the concept to Audi Alteram Partem was evolved.

The Supreme Court adopted a comparable strategy in Swadeshi Cotton Mills v. Union of India, when a void administrative decision was upheld during a post-decisional hearing. The Audi Alteram Partem norm was abused by an order in which the government assumed control over the management of an organization without prior notice or hearing. Regardless, the Court upheld the contested order since the Government had agreed to a post-decisional hearing.

A request for examination was put to the test in Liberty Oil Mills v. Union of India because the natural justice standards were violated. The Supreme Court recognized that in cases when the risk that needs to be avoided is imminent or where immediate action is required, the opportunity to be heard may not be pre-decisional at all but rather post-decisional.

The Bhopal Gas Disaster (Processing of Claims) Act, 1985, was the subject of the case Charan Lal v. Union of India, in which the teaching of post-decisional hearing was given a very sincere justification. The Supreme Court ruled that a resolution of this kind would be interpreted in such a way as to preclude the use of the Audi Alteram Partem rule at the pre-decisional hearing stage where the statute does not reject the pre-decisional hearing rule but instead takes into account post-decisional hearing that adds up to a thorough review of the advantages of the original order.

Why Was Post-Decisional Hearing Propounded?

The concept of post-decisional hearing emerged as a safeguard against arbitrary and unfair decision-making. It recognizes the fundamental principle of natural justice that individuals should have a chance to be heard before decisions that adversely affect them are finalized.

Objectives of Post-Decisional Hearing

Upholding Natural Justice: Post-decisional hearings uphold the principles of natural justice by providing an opportunity for parties to be heard even after a decision has been made.
Remedying Procedural Deficiencies: These hearings allow for the correction of procedural deficiencies that may have occurred during the initial decision-making process.
Ensuring Fairness: By providing an opportunity to present their case, parties can ensure that their perspectives and relevant evidence are considered before the decision is finalized.
Preventing Arbitrary Decisions: Post-decisional hearings help prevent arbitrary or unfair decisions by allowing for a thorough review of the reasoning behind the decision.
Promoting Accountability: Authorities are held accountable for their decisions by having to justify their reasoning in a post-decisional hearing.

The Supreme Court observed that in our opinion, the post-decisional opportunity of hearing does not sub serve the rules of natural justice. The authority who embarks upon a post-decisional hearing will normally proceed with a closed mind and there is hardly any chance of getting a proper consideration of the representation at such a post-decisional opportunity. Thus in every case where the pre-decisional hearing is warranted post-decisional hearing will not validate the action except in very exceptional circumstances.

A prior hearing may be better than a subsequent hearing but a subsequent hearing is better than no hearing at all. The approach may be acceptable where the original decision does not cause serious detriment to the person affected, or where there is also a paramount need for prompt action, where it is impracticable to afford antecedent hearings. In substance it is the necessity for speed which justifies post-decisional hearing at a later stage.

In emergent situations the principles of natural justice are excluded and therefore if the court comes to the conclusion that in a given situation these rules are applicable there seems to be no reason why their observance should not be insisted upon at the pre-decisional stage. The law now clearly is that in all normal cases, pre-decisional hearing is necessary, but in very exceptional cases, the post-decisional hearing will validate the action if no pre-decisional hearing is given.

Conclusion

Post decisional hearing as a concept, though indirectly disregarded by the Supreme Court, has stood the test of time and is here to stay. Though it might appear to be blatant violation of Audit Alteram Partem and Principles of Natural Justice, when delved into it comes out to be as a furtherance of these established legal principles. Not only does the concept of Post Decisional Hearing flexibly furthers principles of natural justice but it helps its age old jurisprudence to survive the test of time and makes it a very dynamic concept, equipped with flexibility and opportunity for further growth. Considering this aspect of it, it is a principle which must not be disregarded and discouraged but must be used as a useful measure respecting the urgency of the fact situations. But it must be kept in mind that is should not allowed to run amuck, as then it might become a bull in china shop and end up sub serving the principles of natural justice altogether. Thus, it must be taken an exceptional rule which in extreme cases is a useful method to meet the ends of justice, especting the urgency of the facts and the legal repercussions which might result if not acted upon.