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PRE AND POST DECISIONAL

HEARING WITH REFERENCE TO


MANEKA GANDHI CASE:
JUSTIFICATION OF TOPIC:

A new powerful and dynamic concept named Post Decisional Hearing which has changed from
time being ,saw its growth and developed after many Supreme Court rulings which impliedly
strengthened the concept of Post decisional hearing. Post Decisional hearing is the first
principle of developed jurisprudence that a person against whom any action is sought to be taken
or whose right or interest is being affected, be given a reasonable opportunity to defend himself.
Principle of Natural Justice must have a flexible approach and that approach has led to the
development of Post Decisional Hearing.1 It's a strong procedural safeguard against any judicial
or administrative order or action, its role is to protect the rights of individuals. Natural Justice is
thus considered as an effective method to protect the interests of the individual and helps in
reaching right decisions. Post-decisional hearing has advantage over Pre-decisional hearing
where it affords an opportunity to the aggrieved person and is better than no hearing at all.
However, post-decisional hearing should be an exception rather than rule. Post decisional
hearing takes place where it may not be feasible to hold pre decisional hearing. It depends upon
facts and circumstances of the case and there have been many instances where court have
permitted a post decisional hearing as pre decisional hearing did not appear to be feasible, and
where courts have refused to accept post decisional hearing where pre decisional hearing could
have been given. A post decisional hearing is less effective than a pre decisional hearing because
it has been pointed out by the court itself that once a decision has been taken by an authority, its
natural tendency would be to support the same or not obviate from former order. Post decisional
hearing is not adequate in dismissal case where the consequence to the concerned person is very
serious.

1 K.L.Tripathi V. State bank of India AIR1984 SC 273


TENTATIVE CHAPTERISATION:
INTRODUCTION
NATURAL JUSTICE PRINCIPLE- A DIMENSIONAL APPROACH
o Evolution of the natural justice principle
o Nemo Debet esse Judex in Propria Causa;
o Audi Alteram Partem
kinds of bias and Doctrine of Necessity
PRE DECISIONAL HEARING WITH REFERENCE TO MANEKA GANDHI CASE
o Fair hearing;
o Judicial activism and Indian Administrative law.
POST DECISIONAL HEARING WITH REFERENCE TO MANEKA GANDHI CASE
o Doctrine of necessity
CONCLUSION

RESEARCH OBJECTIVES:
To first understand the basic principles of natural justice, to analyze the case laws which deals
with judgement of post decisional hearing. To understand the importance of post decisional
hearing over pre- decisional hearing.

RESEARCH QUESTIONS:
1.If Pre Decisional Hearing can be excluded if the act expressly mentions
about providing Post Decisional Hearing? If Post decisional hearing be an absolute
substitute for pre decisional hearing?

2.If it was necessary to observe the rules of Natural Justice before issuing the
order by the Government?

3. If Post Decisional Hearing can sub serve the Principle of Natural Justice?
RESEARCH METHODOLOGY:
The research methodology is doctrinal with reference to various books and articles which deals
with basic principles of administrative law like natural justice and fair hearing and their concepts
in detail.

INTRODUCTION:
The first principle of natural justice is that 'no man shall be a judge in his own case' also it says
that if the judge has pecuniary interest in decision making it would disqualify even if the
pecuniary interest is very small. Natural Justice is thus considered as an effective method to
protect the interests of the individual. Thus it helps in reaching right decisions. The second
principle is audi alteram partem nobody shall be condemned unheard. In the Maneka Gandhi
case where the passport of Maneka Gandhi was impounded by the authorities withholding
reasons for impounding which was violative of the principles of natural justice it can be
concluded that pre-decisional hearing is the standard norm of rule of audi alteram partem.A fair
hearing is the duty of the administration, it is a right that every civilized society must provide it
to their citizens, though right to be heard is not a fundamental right. 2 As there is a lack of
authoritative literature and commentary on the topic, the help of some prominent Supreme Court
ruling in which the Court has laid down the principles on Post-Decisional hearing would help in
research of this matter, where it is justified and its exceptions are given. Further, we would deal
with recent case laws and put forth the use and need for Post-Decisional hearing.

In Post Decisional Hearing, an individual is given an opportunity to be heard after a tentative


decision has been taken by the authorities 3 In certain situations, it is not feasible for the

2 Union of India v. J.N.Sinha 1971 SCR(1) 791

3 I.P.Massey, Administrative Law, (6th edition 2005)


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. 4 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 AlteramPartem by providing Right to be 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 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. The similar proposition was ingeminated by the Apex Court.5

REVIEW OF LITERATURE:
The author with his vast experience in administration and governance has dwelt upon all the
relevant fields in this context,judicial,or quasi-judicial. His expert contribution is enriched by
appropriate judicial decisions.The books Fair hearing and Access to Justice by B.C.Sarma and
Halsburys laws of India Vol 1 Administrative law has been used for research on this topic.

PRIMARY SOURCES:
1. Halsburys Laws of India vol1 Administrative law
2. Fair hearing and Access to Justice by B.C.Sarma

3. Principles of Administrative Law by MP JAIN & SN JAIN Edition : 2015

4 M P Jain & S C Jain, Principles of Administrative Law (2015).

5 Yoginath D. Bagde v. State of Maharashtra, (1997) 7 SCC 739.


Secondary sources:
1. http://www.telegraphindia.com/1131127/jsp/opinion/story_17616409.jsp
2. http://lawnn.com/case-study-maneka-gandhi-union-india-25th-january-1978/