DHARMASHASTRA NATIONAL LAW UNIVERSITY, JABALPUR

2020-2021
SUBJECT – ADMINISTRATIVE LAW
TOPIC: Post Decisional Hearing in Administrative Process

SUBMITTED TO - SUBMITTED BY -
Ms. RUCHIRA CHATURVEDI Harshit Rathore
(ASSISTANT PROFESSOR OF LAW) B.A.LL.B.(Hons.)
5th Semester
BAL/034/18
 ACKNOWLEDGEMENT

I would like to express my special thanks of gratitude to many individuals and organizations. I am
highly indebted to Dharmashastra National Law University for assigning me with this project topic
where I could learn so much related to the topic.

I would like to thank Vice-Chancellor Sir for providing with all the necessary requirements which
helped me achieve my goal and acting as a guide who I can reach to whenever the need be so.
Words fail to express my deep sense of glee to the subject teacher Ms Ruchira Chaturvedi who
enlightened me at every difficulty in the completion of this task. I acknowledge the blessings and
support of my parents which they provided me throughout the project. I would also like to thank
my sister who was a constant support throughout the project and my friends who helped me in
achieving my target.

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 TABLE OF CONTENT

CHAPTER I .................................................................................................................................... 3

LITERATURE REVIEW ............................................................................................................ 3

RESEARCH OBJECTIVES ....................................................................................................... 3

RESEARCH QUESTIONS ......................................................................................................... 3

HYPOTHESIS ............................................................................................................................ 4

RESEARCH METHODOLOGY ................................................................................................ 4

CHAPTER II................................................................................................................................... 5

INTRODUCTION ....................................................................................................................... 5

CHAPTER III ................................................................................................................................. 6

AUDI ALTERAM PARTEM ..................................................................................................... 6

RIGHT TO HEARING ............................................................................................................... 7

POST-DECISIONAL HEARING ............................................................................................... 9

CHAPTER IV ............................................................................................................................... 12

CONCLUSION ......................................................................................................................... 12

BIBLIOGRAPHY ......................................................................................................................... 13

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 CHAPTER I

LITERATURE REVIEW
1. Administrative Law by C.K. Thakker, Eastern Book Company, 2nd Edition, 2012
The author talks about the concept of Post Decisional Hearing. How it gets its inception in
India and its development through Judicial decisions have been dealt by the author. Author
also talks about its scope and reasonable restrictions put on Right to hearing in cases of
emergency. The book deals in detail with judicial decisions as regards to the ever
expanding scope of judiciary to test the legitimacy of Administrative Actions. Author has
also given an account on how Indian Constitution incorporates Natural Justice principles
which gives way to principles of Fairness and right to hearing.

2. Judicial Insistence on Fairness in Administrative Process by Alice Jacob

Author has given an account of Judgements by Indian Courts in relation to legitimacy of
Administrative Processes. Article covers all the landmark judgements which have shaped
the current position of law as regards to Post Decision Hearing. Author has thrown light
upon how Judiciary enjoys checks and balances upon Administrative Actions and its scope
in doing the same.

RESEARCH OBJECTIVES
1. To find out the emergence and scope of Post Decision Hearing in Administration.
2. To find out the approach of Indian Judiciary towards legitimacy of Administrative Actions.

RESEARCH QUESTIONS
1. What is Post Decisional Hearing and Audi Alteram Partem?
2. How does Indian Constitution incorporate Natural Justice as contemplated by Courts to
evolve Post Decision Hearing?
3. Is Post Decision Hearing a substitute to Pre-Decision Hearing?

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HYPOTHESIS
State’s Administrative Actions cannot be tested on their procedural legitimacy.

RESEARCH METHODOLOGY
Research Strategy- The research held with the respect to this paper was applied and not a new.
Numerous academic research have been taken into account for coming to a conclusion.

Limitations of Research - The research is limited to already present jurisprudence on the topic and
adds the viewpoint of the author based on the judgments in the context of India.

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 CHAPTER II

INTRODUCTION

a manifold rise in the functions of administration can be observed in States since twentieth century.
the emphasis of state has shifted from functions of defence, police and administration of justice,
to the welfare functions of providing essential social and economic services to people has added
multifold functions to administration. This has resulted in legislations and administrative activities
conferring wide discretionary powers on the administration. The administration now has powers
enough to affect the life, liberty and property of individuals through administrative regulation and
adjudication. This has led to the realization that the vast administrative powers need to be put under
checks to curb arbitrariness.

The courts have a significant contribution to make administration and its adjudicatory powers
tolerable. Courts have devised a set of rules to ensure administrative procedure remain just and
fair with the help of natural justice principles. The importance of the procedural safeguards cannot
be overestimated. As said by Krishna Iyer J., “the philosophy behind natural justice is, in one
sense, participatory justice in the process of democratic rule of law.”1

One of such measures is the guideline of audi alteram partem which necessitates that nobody will
be punished unheard which led to acknowledgment and implementation of the concept of post-
decisional hearing. If it occurs that, an earlier hearing would defeat the purpose and reason of the
exercise of power, it should be substituted by post-decisional hearing.

1
Mohinder Singh Gill v. Chief Election Commissioner, (1978) 1 SCC 405 : A.I.R. 1978 S.C. 851 at 881.

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 CHAPTER III

AUDI ALTERAM PARTEM

This rule points 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 requirement of natural justice is that the person being affected must be given notice
to show cause against the proposed sanction and look for his clarification. It is a sine qua non of
reasonable hearing. Any order passed without a notice is found strictly in contravention of the
principles of natural justice and is declared to be void ab initio.

Regardless of an enactment not necessitating a prior notice to be given, natural justice principles
necessitate the same, if the request affects negatively. In Maneka Gandhi v. Union of India2,
Bhagwati J. was anxious that audi alteram partem should be salvaged “to the maximum extent
permissible in a given case,” and not be completely excluded. He observed:

“The Passport Authority may proceed to impound the passport without giving any prior
opportunity to the person concerned to be heard, but as soon as the order impounding the passport
is made, an opportunity of hearing, remedial in aim, should be given to him….”3

In the decision of the Supreme Court in S.L. Kapoor v. Jagmohan, commonly known as the New
Delhi Municipal Committee case, the court concluded that the order of the Lieutenant Governor
of Union territory of Delhi was “vitiated by the failure to observe the principle Audi Alteram
Partem.”

2
(1978) 1 SCC 248 : A.I.R. 1978 S.C. 597.
3
Id. at 628.

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RIGHT TO HEARING

Natural Justice is an ethico-legal idea which depends on natural sentiment of individual. the
development of civilization has led to the creation of Natural Justice Principles and their content
is considered as an appropriate mixture of the degree of civilisation and Rule of Law.

It has been settled that the principles of natural justice are material to judicial and quasi-judicial
capacities however the inquiry as to whether these principles are significant to administrative
activity. Some time ago, courts had taken the view that the principles of natural justice were
inapplicable to administrative requests.

The Courts have employed various tests to identify an Administrative function as Quasi-Judicial.
The courts infer the nature of an administrative function, whether quasi-judicial or not, from “the
cumulative effect of the nature of the rights affected, the manner of the disposal provided, the
objective criterion to be adopted, the phraseology used, the nature of the power conferred, of the
duty imposed on the authority and other indicia afforded by the statute.”4 The criteria
abovementioned provided a great deal of range to the judges in the matter. The judicial trend in
the 1950s had been to take a rather restrictive attitude in identifying administrative functions as
quasi-judicial.5 But the decades following have brought about a change in the judicial approach
towards the expansion of the reach of the principles of natural justice.

In Kishan Chand v. Commissioner of Police6, it was observed that ‘audi alteram partem’ applies
just to judicial or quasi-judicial procedures however on account of A.K. Kraipak v. Union of India7,
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. 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.

4
See Dwarka Nath v. Income-tax Officer, A.I.R. 1967 S.C. 81 at 86. See also Board of High School v. Ghanshyam,
A.I.R. 1960 S.C. 1110.
5
Province of Bombay v. Khushaldas S. Advani, A.I.R. 1950 S.C. 222; Radeshyam v. State of Madhya Pradesh, A.I.R.
1959 S.C. 107.
6
1961 AIR 705 1961 SCR (3) 135
7
Id.

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In the words of Hegde, J.-

“The requirement of acting judicially in essence is nothing but to act justly and fairly and not
arbitrarily or capriciously. The procedures which are considered inherent in the exercise of a
judicial power are merely those which facilitate if not ensure a just and fair decision.”8

Natural Justice enclose within the Right to Hearing. This in a sense that the right to hearing is a
Procedural Code and ultimately covers each phase of administrative order procedure. Therefore,
it can be said that the Right to hearing is an important defence against maltreatment of
administrative power.

American “due process” and Natural Justice are quite synonymous. The essentials of due process
of law cover the Right to notice and opportunity to be heard. Likewise, in India, The Constitution
of India entails the benchmarks of natural justice throughout. Article 311 of the Constitution
emphasises on ‘Right to Hearing’ which is a basic standard of Natural Justice. The legitimacy of
limitations has been decided by Courts keeping in mind the guidelines of natural justice. The
requirement of procedural reasonable restrictions can be equated with the American due process
of law.

Principles of Natural Justice can be observed to be penned down under Articles 14 and 21 of the
Indian Constitution. When the ‘due process’ was incorporated in Article 21 of the Constitution in
the case of Maneka Gandhi v Union of India9, the principle of reasonableness revered in the natural
justice can be seen under Article 21 when an individual is denied his life and individual freedom.

It has been ruled that Article 14 applies not only to unfair class enactment but also to any State
activity which is despotic or prejudicial. The reason is that any arbitrary act by State leads
infringement of natural justice and all things infringing natural justice principles are an
infringement of the postulate of uniformity consolidated in Article 14.

This is the manner in which principles of natural justice are incorporated in the Constitution of
India. At last, it can be said that the scope of right to hear, whether it be a feature of natural justice

8
1961 AIR 705, 1961 SCR (3) 135 at 154.
9
(1978) 1 SCC 248 : A.I.R. 1978 S.C. 597.

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or fairness, is continuously widening. An action affecting the rights of the parties if takes place,
procedural fairness coupled with natural justice is to be withhold with utmost sincerity.

POST-DECISIONAL HEARING

The principle of the post-decisional hearing was propounded by the Supreme Court in Maneka
Gandhi v. Union of lndia10. This case dealt with the validity of the impounding of the petitioner's
passport under section 10(3)(c) of the Passports Act, 1967 without hearing the petitioner. Section
10(5) makes it incumbent on the passport authority to record, in writing, reasons for the order and
to furnish them on demand to the concerned person except when public interest demands
otherwise. The Act provides an appeal to the Central Government. Bhagwati J., reiterated the
Kraipak rule. The power of impounding conferred on the authority is quasi-judicial and natural
justice would apply in its exercise. Even if the power is considered as administrative, natural justice
must apply.11 Quoting Kraipak he said:

“The law must, therefore, now be taken to be well settled that even in an administrative proceeding,
which involves civil consequences, the doctrine of natural justice must be held to be applicable.”12

At the same time Bhagwati J. was sensitive to the demands of administrative process. He felt that
the concept of natural justice was flexible and its application could be excluded in certain emergent
situations. However, as it is a rule for ensuring fair play in action, ordinarily it should not be
jettisoned. Here the judge's pragmatic realism led him to articulate the principle of post-decisional
hearing to meet the yardstick of fairness in administration. In the instant case prior hearing was
not insisted on in view of the necessity to take a prompt and swift action as otherwise the petitioner
would have left the country on the basis of her passport and the object of impounding would have
been frustrated. Bhagwati J. was anxious that audi alteram partem should be salvaged “to the
maximum extent permissible in a given case,” and not be completely excluded.13 He observed:

10
Supra note 9.
11
Judicial Insistence on Fairness in Administrative Process; by Alice Jacob; 25 JILI (1983) 195
12
Supra note 9 at 628.
13
Supra note 11.

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“The Passport Authority may proceed to impound the passport without giving any prior
opportunity to the person concerned to be heard, but as soon as the order impounding the passport
is made, an opportunity of hearing, remedial in aim, should be given to him….”14

Is post-decisional hearing a substitute for pre-decisional hearing in administrative decision-

making? This was an issue in Swadeshi Cotton Mills v. Union of India15. A similar methodology
was employed by the Supreme Court, Sarkaria J. held that the necessity of immediate action did
not necessarily and absolutely exclude the prior application of the rule of fair hearing. He said:

“In most cases, where the urgency is not so extreme, it is practicable to adjust and strike a balance
between the competing claims of hurry and hearing.”16

Government by an order assumed the control over the administration of an organization without
earlier notice or hearing was held to be bad as it abused the audi alteram partem rule. Ultimately
the Court held that the post-decisional hearing in section 18F was not an adequate “appropriate
substitute for a fair hearing at the pre-decisional stage.”17

‘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.’18

In Trehan V. Union of lndia19, 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

14
Supra note 9 at 630.
15
(1981) 1 SCC 664 : A.I.R. 1981 S.C. 818.
16
Id. at 842.
17
Supra note 16.
18
1984 AIR 1271, 1984 SCR (3) 676.
19
1989 AIR 568, 1988 SCR Supl. (3) 925

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and there is not really any possibility of getting a proper consideration of the representation at such
post-decisional hearing.” 20

In Bari Doab Bank V. Union of lndia21, 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 hearing
at the phase of filing issues with the draft plan would be adequate.

In Laxmi Khandsari v. State of Uttar Pradesh22 the notification of 9 October 1980 of the
government, issued under clause 8 of the Sugarcane (Control) Order, 1966, ‘prohibiting power
crushers or khandsari units in any reserved area of any sugar mill from operating the power crusher
for a period of one and a half months in order to increase the supply of sugarcane to the sugar mills
for production of sugar to meet the demands of consumers, was challenged on the ground that
before it was issued, the power crushers were not given any opportunity of being heard. Negativing
the challenge, the Supreme Court, speaking through Fazal Ali J., held that principles of natural
justice stood excluded in the instant case on two grounds. First, the notification was made to meet
an emergent situation when the country was facing acute sugar famine and the scheme it evolved
had to be put into immediate operation to increase the production of sugar and ensure its equitable
distribution to the consumers.’23 “If hearing was to be given to so many owners of power crushers,
it could have completely defeated and frustrated the very object….”24

20
Supra note 19 at 35.
21
2001 103 CompCas 235 P H, (1998) 118 PLR 135
22
1981 SCALE 455.
23
Supra note 11.
24
Id. at 480.

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 CHAPTER IV

CONCLUSION

The Indian courts are giving up “narrow conceptualism” of the previous decades in the application
of principles of natural justice to administrative action.25 They have not completely eliminated the
artificial classification of administrative functions into administrative and quasi-judicial. But they
have been liberal in characterizing functions as quasi-judicial. If the aim of the principles of natural
justice is to secure justice or to prevent miscarriage of justice (putting it negatively), it should be
applicable to administrative as well as quasi-judicial action. The prevalent judicial emphasis is on
“fair play in action” or “duty to act fairly,”26 which is the “quintessence of the process of justice.”
‘This is a trend to be welcomed by everyone who believes in the values of rule of law and
democratic freedom. Fairness assures justice and serves as a check on the misuse of powers by the
administration and, to that extent, it is in public interest.’27

25
(1969) 2 SCC 262 : A.I.R. 1970 S.C. 150.
26
See Maneka Gandhi, supra note 9, wherein Bhagwati J. said that “the soul of natural justice is fair play in action.”
27
Supra note 11.

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 BIBLIOGRAPHY

1. Administrative Law by C.K. Thakker, (EBC Publication, 2nd Edition, 2012)

2. IP Massey, Administrative Law, (EBC Publication, 5th Edition 2003)
3. Notes and Comments: Administrative Law Aspects of Maneka Gandhi by S.N. Jain, 21
JILI (1979) 382.
4. Judicial Insistence on Fairness in Administrative Process by Alice Jacob, 25 JILI (1983)
195.

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