Harmonising Tool Of Post-Decisional Hearing With Reference TO Principles Of Natural Justice
Author: Harsimar Kaur,
Student, Panjab University Regional Centre, Ludhiana
Natural Justice is a concept use to protect justice or let’s just say to prevent miscarriage of justice. Basically, it’s a concept of common law i.e. evolved from custom and judicial precedents and is a part of English Law; which display guidelines developed by judges in concrete cases. The courts have always insisted every authority to follow minimum fair-play procedure. Although, these principles do not have an expressed constitutional status, however, the aspects of these principles are deeply rooted in Constitution Under Article 14 and 21. The Doctrine of Post Decisional Hearing is also a part of Natural Justice developed through a landmark case in India.
PRINCIPLES OF NATURAL JUSTICE:
Natural Justice is an aggregation related to Public Authorities holding power. Principles of Natural Justice has been evolved from the word “jus natural” of Roman Law and is closely related to common law and moral law. The Doctrine emphasis on the delivery of justice that should be Fair, Equal and Impartial. It’s a weapon to keep an eye on the arbitrary powers of the public or administrative Authorities. These principles further give rise to or closely related to two maxims:
1. Nemo judex in causa sua. (No one should be Judge in his Own Case)
2. Audi Alteram partem. (Right to Hearing)
I. NEMO JUDEX IN CAUSA SUA:
This principle is basically based upon 3 maxims which are as follows;
1. No man shall be judge in his own case.
2. Justice should not only be done, but manifestly and undoubtedly seen to be done.
3. Judges should be above any question or suspicion.
II. AUDI ALTERAM PARTEM:
It is classified to be the most important pillars of Natural Justice. Audi Alteram Partem means “Hear the other side” or “no one should be condemned unheard”. This is a basic requirement of Law. It’s the basic principle that should be applied by all public authorities before passing any decision with a view to prevent arbitrariness and to protect the individuals from injustice. The main aim of this principle is that a person should be treated fairly. With an object to bring a change for safeguarding the interest of individuals, the maxims involve following steps which must be implemented by all courts, tribunals and other public authorities:
1. Provision of Notice.
2. Opportunity to represent case and Evidence.
3. Right to rebut adverse evidence.
4. No evidence to be taken at the back of other party.
5. Report of the enquiry to be shown to the other party.
6. Reasoned Decisions or Speaking Orders.
7. Post- Decisional Hearing.
CHANCE OF FAIR HEARING:
The Right to fair hearing is vital need for ensuring protection to individuals. The Right to Fair Hearing requires that the authorities before passing any action or order should afford a reasonable time to an individual to present their contention or case. In other words, its important to memorize that individual should not be penalized by the actions taken by the concerned authorities that affect their right before any advance notice of the case or fair chance or complete freedom to answer.
POST DECISIONAL HEARING:
Reasonable time to be Heard is a Right that should be given to every individual. To conduct a fair hearing is the duty of every Public Authority. Therefore, the theory of post-decisional hearing was flourished with a view to maintain equilibrium between efficiency of administration and fairness to individual.
Pre-Decisional Hearing is a Hearing which is conducted before passing any order. On the other hand, unlike pre-decision hearing, post-decisional hearing is a hearing which is conducted by adjudicating authority subsequent to making a choice or decision. This organizing and efficacious tool was developed by Supreme Court in Maneka Gandhi v Union of India. In this case, the Supreme Court exhibited the rule for safeguarding the interest of general public that if it is impractical to manage a pre-decisional hearing, the authorities should ought to be manage a post- decisional hearing.
In this case, the passport of Mrs. Gandhi (Petitioner) was confiscated by passport Authorities by order in the name of Public Interest on 2nd July, 1977. When asked upon by the petitioner for the reasons for impounding action, the authorities declined to provide the same in the interest of General Public. The Authorities also did not give her a fair chance of pre-decision notice and hearing which was a clear-cut breach of fundamentals of natural justice. As a result, the petitioner files a writ petition to Supreme Court under Article 32 of the Indian Constitution which provides Remedies for the enforcement of rights conferred by Part 1 that is the right to move to the Supreme Court by appropriate proceeding for the enforcement of their rights. The Court firmly said that though the impoundment of the passport was an administrative action, yet it is bound to follow a necessary step of conducting a fair hearing to comply with the Principles of Natural Justice.
However, court ordered the return of passport and acknowledged the Doctrine of Post-Decision Hearing. This tool of post decisional hearing was established with an object to protect the interest of people with regards to any administrative order.
In another landmark case of Swadeshi Cotton Mills v. Union of Indiaas per Section 18 AA of the Industries Development and regulation Act, 1950 (IDRA) an action could be undertaken after making an examination into its affairs. Further, in this case, the court basically authenticated the Government action for taking over the management of the company which was in breach of principles of natural justice. The court validate such order as government has acknowledged to give a “post decisional hearing”.
In K.I. Shephard v. union of India, three banks have been amalgamated and specific employees of these banks were shut out from employment without giving them an opportunity to be heard. The court held that post decisional hearing in this particular case won’t do justice and equity where normal rule of hearing is applicable. Further the court identified that it is not justiciable to shut out a person out of employment and then give him an opportunity of representation when the necessity is that he should have opportunity as a condition precedent to action.
We can conclude that a prior hearing may be better than a post hearing but a post hearing is better than no hearing at all. It is given to those individuals where prior hearing was not given by the concerned authorities. This tool has resulted to protect the rights of individuals with reference to present their case with a reasonable opportunity of fair hearing. The law now clearly states that pre-decisional is must, in every case but in some exceptional case where prior hearing was impractical then it can be substitute by a harmonizing tool of Post-Decisional Hearing. Moreover, it important to note that principles of natural justice are also followed by some exceptions such as;
1. Elimination in case of emergency.
2. Elimination in case of confidentiality.
3. Elimination based on impracticability.
4. Elimination in case of government policy decision.
5. Elimination where no right of the individual has been infringed.
 https://blog-ipleaders-in.cdn.ampproject.org/v/s/blog.ipleaders.in/natural-justice/?amp=1&_gsa=1&_js_v=a9&usqp=mq331AQKKAFQArABIIACAw%3D%3D#amp_tf=From%20%251%24s&aoh=16576380004243&referrer=https%3A%2F%2Fwww.google.com&share=https%3A%2F%2Fblog.ipleaders.in%2Fnatural-justice%2F  Iilsindia.com  A.I.R 1978 SC 597.  Article 32(1) of the Indian Constitution.  A.I.R. 1981 SC 818  A.I.R. 1988 SC 686