Exceptions to Principles of Natural Justice: Part III

By Adv. Shriya Maini.

First Part of this Series, can be accessed here.

Second Part of this Series, can be accessed here.

• Exclusion in cases of legislative action: “Doctrine of Parliamentary Supremacy”

Another distinct exception to the otherwise mandatory application of Principles of Natural Justice is that of Legislative action. An interesting query arises here- what is a “Legislative Action” exactly? Professor M.P. Jain defines the same by stating it to be an order of general nature, not one applying to a person or few specified persons. Whether plenary or subordinate, he believes it is not subject to the rules of Natural Justice because these rules lay down a policy without reference to a particular individual. On similar lines, application of Principles of Natural Justice may also be excluded by a provision of the Constitution. In other words, the legislative action of the Legislature leads to the creation of an Act or Statute, while that of an Executive Action leads to the birth of Delegated Legislation. However, both may be exempt from the necessary and obligatory compliance of Principles of Natural Justice. A concept borrowed from the English Courts, J. Meagry in Bates v. Hailsham held that “There is no implied right to be heard in a Legislative Process”. The Constitution of India as a matter of policy excluded the Principles of Natural Justice in Articles 22, 3I(A), (B), (C) and 3II(2).

However, if prime facie, the legislative exclusion appears to be arbitrary, unreasonable or unfair, the Courts may outrightly quash such provisions on account of plausible violations of Articles 14 and 21 of the Indian Constitution. In Laxmi Khandsari v. State of U.P., the Hon’ble Supreme Court held that a notification of the Uttar Pradesh Government Sugarcane (Control) Order, 1966 directing that no power-crusher of a Khandsari Unit in a reserved area of a sugar mill will work during the period October 9 to December 1, 1980, was legislative in character, and hence, the Principles of Natural Justice were not attracted therein.

In the same manner, the Court held in J.R. Vohra v. Indian Export Houses, that Sections 21 and 37 of the Delhi Rent Control Act dealing with the termination of limited tenancies do not violate the Principles of Natural Justice. The Court observed that if a limited tenancy has been validly created then at the expiry of the period a warrant of possession can be issued without any notice or hearing to the tenant.

In Panipat Woollen and General Mills Co. Ltd. v. Union of India, the Court held that where a decision is left to the Legislature itself under the Act, the question of affording an opportunity of hearing to affected persons before taking a decision does not arise. The Legislature had itself fixed the criteria and on the basis of that, it had also identified persons and undertakings to which the law applied. Therefore, it was safe to assume that the legislature was not expected to give notice and afford a hearing while laying down a general rule.

The same judicial trend is visible from a bare perusal of Union of India v. Cynamid when the Hon’ble Supreme Court held that no Principles of Natural Justice had been violated when the government issued a notification fixing the prices of certain drugs. The Court reasoned that since the notification flowed from a legislative act and not an administrative one, the Principles of Natural Justice would not apply.

L.N.M. Institute of Economic Development and Social Change v. S.O., Bihar, sets a high benchmark in this direction. In this case, the Bihar Legislative Assembly passed a Statute for taking over a Private Institute named after its former Chief Minister. The Act also provided for the termination of services of its employees. In pursuance of these provisions, the government terminated the services of the employees of the Institute. Justifying the action, the Court held that where there is a legislative direction for termination of services of employees of the institute which is taken over by the government, compliance with the Principles of Natural Justice may not be read into such a direction and, if terminations are effected without giving the employees concerned an opportunity of being heard, no exception can be taken of the same.

The same principle was followed by the Court in Charan Lal Sahu v. Union of India (Bhopal Gas Disaster case) where the constitutionality of the Bhopal Gas Leak Disaster (Processing of Claims) Act, 1985 was involved. The Supreme Court held: “For legislation by Parliament no principle of Natural Justice is attracted, provided such legislation is within the competence of the legislature”. The same principle applies in case of subordinate legislation. For instance, for fixation of tax, fee and charges, Principles of Natural Justice are not attracted. However, in cases of modification, representation made must be considered.

Similarly, where seniority rules were relaxed with retrospective effect for reserved category candidates, the Court held that no hearing was necessary for those who were adversely affected as it was a rule-making function. To sum up, in cases of legislative acts performed by the legislature, no question of application of rules of Natural Justice arises. However, in case of subordinate legislation, the Legislature may provide for observance of the Principles of Natural Justice and in that case, its violation would vitiate administrative/legislative action. This legal aspect was exemplified by the Apex Court in State of Punjab v. Tehal Singh. In this case, the Punjab Panchayati Raj Act did not provide for any opportunity of notice and hearing to the residents before provisioning areas falling under a particular Gram Sabha to be excluded from and included into another Gram Sabha. The Court held that the residents of that area which had been excluded and included in a different Gram Sabha could not make a complaint regarding denial of the rules of Natural Justice. Thus, where the legislature in its wisdom has not chosen to provide for any opportunity for observance of Principles of Natural Justice, its observance cannot be insisted upon. It need not be overemphasized that this trend increases the possibilities of legislative arbitrariness. Therefore, there seems to be no reason to exempt legislative actions from Natural Justice in areas where the law is based on adjudicative facts.

As far as the American status is concerned, the Principles of Natural Justice have been given a constitutional status by the 5th and 14th Amendments. These amendments provide that no person shall be deprived of “life, liberty or property without the due process of law”. This constitutional guarantee has been consistently interpreted as meaning generally that the rights of a citizen shall not be interfered with, unless he has been provided with a hearing, in an objective manner. The recent approach of the Courts is that a hearing under the “due process” clause must be given whenever a decision is based on “adjudicative facts”, i.e., facts which pertain to the parties, their business and activities. Hearing may be avoided only where emergency action is necessary.

In England, the history of the application of the Principles of Natural Justice up to the mid-1960s revealed two opposite viewpoints. According to one line of thought, in the absence of any statutory requirement of a hearing, the hearing would be implied by the Courts whenever any decision affected the rights of subjects. This aspect was clearly reiterated in Cooper v. Wandsworth Board of Works,wherein the Metropolis Management Act, 1855 provided that a person who intended to build a household, ought to give 7 days’ Notice to the District Board, failing which the Board could demolish the house. Cooper built the house without giving the required notice and consequently, his house was demolished without providing him with a hearing. The Court held that Cooper could maintain an action for trespass because no valid decision could be reached in breach of the Principles of Natural Justice. This Principle of applying the rules of Natural Justice by implication has been followed in a multitude of cases dealing with (i) interference with property rights, (ii) deprivation of membership of professional or other non-statutory bodies, (iii) dismissal from office, (iv) imposition of penalties, and (v) deprivation of advantages.

The other viewpoint was based on a restrictive attitude towards certiorari and prohibition, which were generally used to compel the observance of Principles of Natural Justice in situations where there was no express statutory requirement for hearing. The holders of this view advocated “freedom of action” for the administration. Therefore, in Franklin v. Minister of Town and Country Planning, when the House of Lords had to consider whether the Minister was subject to the rules of Natural Justice in designating the site of a new township, it decided that the Minister was acting executively and not judicially, and hence, was not subject to the Rules of Natural Justice. Following the same line of reasoning, the Privy Council held in Nakhuda Ali v. Jayaratne, that in the absence of any express statutory requirement for hearing, the rules of Natural Justice are not attracted even when the power to cancel a license is coupled with the fact that “reasonable grounds” exist for the exercise of power.

Fortunately, in 1963, Cooper’s formulation was reasserted in Ridge v. Baldwin. The appellant in this case was the Chief Constable of Brighton, England who had been dismissed from service by the area Watch Committee in exercise of its powers under the Municipal Corporation Act, 1882, on the ground of negligence in the discharge of duties. The Act did not require any hearing before dismissal. A declaratory judgment was sought on the ground of violation of the rules of Natural Justice. The declaration was refused both by the Court of First Instance and the Court of Appeal on the strength of Nakhuda Ali’s holding. However, by a majority of four to one, the House of Lords decided that there is no point in labeling functions as quasi-judicial and administrative because even the administrative or executive functions were subject to the Rules of Natural Justice.

The Ridge Case brought new liberality in approach to the question of the application of the Rules of Natural Justice and judicial review. Formerly, the presumption had been that there was no obligation to afford a hearing, unless the statute expressly provided for it; now the presumption is that there is always such an obligation unless the statute clearly excludes it, notwithstanding the vesting of a power in subjective terms. Nevertheless, it does not mean that the rules of Natural Justice shall be applied in every administrative action to the same extent. In situations where policy considerations are paramount, the requirement of Natural Justice would be minimal and at times they would probably vanish altogether.

However, hearings in legislative actions can be claimed on the basis of deprivation of a Legitimate Expectation as in the case of C.C.S.U v. Minister for Civil Service. Another gray area to be potentially discussed would be that of the absence of necessity when the administration discharges its rule making function except when the parent statute itself ordains a hearing.

• Exclusion in cases of Interim Preventive or Disciplinary Action

Another case of exclusion involving the action of an administrative authority passing suspension orders in the nature of preventive action and not a final order; the application of the Principles of Natural Justice may be excluded. In Abhay Kumar v. K. Srinivaswan, the institution passed an order debarring a student from entering the premises of the institution and attending classes till the pendency of a criminal case against him for stabbing a co-student. This Order was challenged on the ground of denial of Natural Justice. The Delhi High Court rejecting the intention held, that such an Order could be compared with an Order of suspension pending enquiry, which is preventive in nature, in order to maintain campus peace, and hence, the Principles of Natural Justice shall not apply. Therefore, Natural Justice may be excluded if its effect would be to stultify the action sought to be taken or would defeat and paralyze the administration of law. The Supreme Court in Maneka Gandhi v. Union of India observed: “Where an obligation to give notice and opportunity to be heard, would obstruct the taking of prompt action, especially action of a preventive or remedial nature, right of prior notice and opportunity to be heard may be excluded by implication”.

• Exclusion based on Impracticability: Impossibility a Stipulation?

A nascent and innovative concept is, using impracticability to avoid compliance of Principles of Natural Justice. De Smith very beautifully opines that there must be substantial reasons to justify why a duty to act fairly should not apply where a decision involves policy or rule making. The sole justifiable cause is that the number of persons affected by a particular Order, Act or decision is so great as to make it manifestly impractical for them all to be given an opportunity of being heard by the competent authority beforehand.Another possible way of interpretation to exclude an opportunity of hearing would be that, giving a notice or fair hearing would frustrate the very object of the statute (which does not expressly require of such notice).

In R. Radhakrishnan v. Osmania University, where the entire MBA entrance examination was cancelled by the university because of mass copying, the Court held that giving a notice and hearing all candidates is not possible in such a situation, for the same had assumed national proportions. Thus, the Court sanctified the exclusion of the Rules of Natural Justice on the grounds of administrative impracticability. Anyone who analyses judicial behavior in this area may be tempted to conclude that “fairness” and “administrative convenience” have been taken by the Court as discrete values and this underlines not only the basic fallacy in judicial behavior, but also exposes the administration’s indolence and inertia.

It may be recalled that when Japanese bombs cascaded upon Pearl Harbour on December 7, 1941, plunging the United States into a global struggle for existence during World War II, orders were passed for the relocation of thousands of persons of Japanese ancestry on the West Coast in relocation camps. Justice Stone, in his powerful dissent, was not prepared to accept that the inconvenience and administrative difficulty of holding individual loyalty hearings for the 1,12,000 persons involved could justify the governmental action.

The Supreme Court expressed the same sentiment when in W.B. Electricity Regulatory Commission v. CESC Ltd., it opined that, when a statute confers a right which is in conformity with the Principles of Natural Justice, the same cannot be negated by a Court on an imaginary ground that there is a likelihood of an unmanageable hearing before the authority or practical inconvenience. In this case the W.B. Electricity Commission had contended that though the Act required consumers’ hearing before fixing tariff, giving a hearing to 17 lakh electricity consumers would be a practical impossibility and will be highly inconvenient. Rejecting the contention, the Court observed that the Act does not give individual rights to every consumer and that the same was regulated by Regulations, therefore the question of indiscriminate hearing did not arise.

Additionally, the criteria for application of this exception is bound to leave a minority feeling aggrieved at having been denied an opportunity to present their case, but the sole justification could be that, this exclusion is applied in the rarest of rare cases, without any other reasonable and cogent alternative, primarily as a last resort.

To be contd.

Note: The links to the preceding parts of this series have been placed at the beginning of this post and links to the succeeding parts will be placed here, as and when they are published.

About the Author

Advocate Shriya Maini is a young, bright, scholarly, advocate turned entrepreneur, currently practicing at the Supreme Court of India, the Delhi High Court and the District Courts at New Delhi.  She specializes in dispute resolution and as an unabashed feminist, particularly enjoys criminal litigation. She is a graduate of Gujarat National Law University, India who then pursued the Bachelor of Civil Laws Programme on a full scholarship (Dr. Mrs Ambruti Salve Scholarship) sponsored by Dr. Harish Salve, Senior Advocate, from the University of Oxford, specializing in International Crime. As a recipient of the Oxford Global Justice Award 2015 for Public International Law, she assisted the President of the International Residual Mechanism for the Criminal Tribunals (MICT) at The Hague, Netherlands. She is now back in the Courts of New Delhi, India to pursue her passion in litigation. Additionally, she has recently been appointed as a Visiting Professor for International Criminal Law at National Law University, Delhi, India.