indian constitutional law review [issn: 2456-8325] edition ...iclrq.in/editions/jul18/art2.pdf ·...

Indian Constitutional Law Review [ISSN: 2456-8325] Edition V [July 2018]

Published by Agradoot Web Technologies LLP

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IS RIGHT TO HEARING AN ABSOLUTE RIGHT?

IN WHICH SITUATIONS, IF ANY, WOULD IT BE POSSIBLE TO CARVE

OUT EXCEPTIONS TO RIGHT TO HEARING?

Tanessa Puri

Student, 3rd

Year, B.A. LL.B., Jindal Global Law School, Delhi NCR, India

ABSTRACT

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 but the authority is not the adjudicator, academic disqualifications, necessity and

confidentiality.

This paper is divided into two parts. Under 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 on candidates undertaking the academic endeavour. The second

part of this paper 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:

(1) Supremacy of law;

(2) Equality before law; and

(3) Predominance of 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 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 and rather, objective. For this reason, this paper 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 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.



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The insensitivity of the education system where every candidate is assessed against the same

standard comes to have reflected in the Court’s opinion as well.

ACADEMIC DISQUALIFICATION

Jawaharlal Nehru University v. B.S Narwal54

On the basis of 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 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.

54 Jawaharlal Nehru University v. B.S Narwal, (1980) 4 S.C.C. 480 (India).



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For example, in the Charan Lal Sahu case55

, 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 case56

, 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 India57

(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 Narain58

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

55 Infra note 57. 56 Infra note 58. 57 Charan Lal Sahu v. Union of India, (1990) 1 S.C.C. 613. 58 Indira Nehru Gandhi v. Shri Raj Narain, 1975 Supp. S.C.C. 1 (India).



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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:

(1) Pre-Decisional Hearing: This is given where parties who are affected as a matter of

rule. If 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.

(2) 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.’59

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 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 India60

Maneka Gandhi’s passport was impounded under Section 10(3)(c) of the Passport Act of

1967 for 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 Maneka Gandhi 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 paper 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

59 SMITH, JUDICIAL REVIEW OF ADMINISTRATIVE ACTION, 170 (5th ed. 1980). 60 Maneka Gandhi v. Union of India, (1978) 1 S.C.C. 248.



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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 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 India61

According to Section 18 AA of the Industries (Development and Regulation) Act, the

government can take over an industry after investigation. Clause (1) of the same section says

that such a takeover 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 alterm partem rule at the pre-decisional stage may be a ‘short measure

of fair hearing adjusted’, attuned and tailored to exigency of the situation. In this case the

Court held that where 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 India62

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:

61 Swadeshi Cotton Mills v. Union of India, (1981) 1 S.C.C. 664. 62 S.P. Gupta v. Union of India, 1981 Supp. S.C.C. 87.



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1) 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.

2) 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.

3) 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 Punjab63

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 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 Bihar64

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

63 Malak Singh v. State of Punjab, (1981) 1 S.C.C. 420 (India). 64 L.N.M. Institute of Economic Development and Social Change v. State of Bihar, (1988) 2 S.C.C. 433 (India).



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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 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 case65

- 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 case66

, 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 India67

The government took a policy decision to disinvest in a public sector undertaking. The

employees challenged this decision. The court held that in a 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)68

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

65 Infra note 67. 66 Infra note 68. 67 BALCO Employees Union v. Union of India, (2002) 2 S.C.C. 333. 68 G. Nageswara Rao v. State of Andhra Pradesh (II) (Gullapalli II), (1959) Supp. (1) S.C.R. 319 (India).



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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:

(1) The Minister was not a part of the Department in the same way as the Secretary.

(2) Departmental bias is the outcome of a situation where the judge and the prosecutor are

combined in the same department.

(3) 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.

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