Natural justice is indeed a humanising principle for it seeks to ensure that law is fair and just and that there occurs no miscarriage of justice. The phrases ‘substantial justice’, ‘fundamental justice’, ‘universal justice’ or ‘fair play in action’ also alludes to the notion of natural justice. It functions on the basis of preconceptions such as ‘man is basically good and hence he must not be harmed’ and ‘one ought to treat others as one would like oneself to be treated’. Though considered a highly noble concept that has much potential, there exists no definition for the same, because the vagueness and ambiguity of the concept is so much so that it has been criticized as ‘sadly lacking in precision’ as per the 1914 decision of R v. Local Government Board, ex p Arlidge. In spite of its flaws, natural justice is widely accepted, adopted and enforced and is considered “an essential part of the philosophy of law.” You may disagree with the previous statement saying ‘uncertainty of law is a cardinal sin’. However, do bear in mind that the vice of said uncertainty is far outweighed by virtues such as greater possibilities of fairness and prevention of miscarriage of justice among others that the law of natural justice offers. Natural justice mandates procedural fairness and hence seeks to make the decision-making process fair and reasonable. Actions of the public authorities are also subject to be governed by the principles of natural justice. Such actions come under the ambit of administrative law for it is the law that deals with the decision-making of administrative units of the government (administrative tribunals, commissions etc).
If one were to trace the history of administrative law, he would stumble up on the conclusion that administrative law flourished as a body of law in the twentieth century because of the creation of more government agencies owing to the newly popular notion of ‘welfare state’. Though natural justice principles were in existence since ancient times, there was little intersection of the same with the realm of administrative law. In fact the very first intersection between the said realms of law occurred in 1963 in Britain in the landmark case of Ridge v. Baldwin where the principle laid down by the Donoughmore Committe, that administrative decisions ought to be immune from the principles of natural justice, was set aside. In the modern day, an administrative body is expected to act with fairness in all instances even if the statute is silent about such application. Miscarriage of justice is thus sought to be avoided in earnest. This common law principle is in use in India and is highlighted by cases such as Maneka Gandhi v. Union of India.
The following rules are pre-requisites to the application of principles of natural justice to administrative law:
- The right to procedural fairness must be secured for both parties. They should be allowed to access non-confidential information and must be given sufficient time to prepare their case. Hence, both parties ought to be given proper opportunity to present their case.
- The persons making submissions are entitled to an opportunity to be heard.
- The decision-maker must be an unbiased person as regard to the case concerned. He must be someone who holds no personal interest in the outcome of the case.
Specific instances of application of natural justice principles
Specific instances of application of natural justice in administrative law fall within the ambit of disciplinary actions against:
- Government employees: A civil servant of the government cannot be dismissed without holding an inquiry against him and into the concerned matter. He should also be informed of the charges against him for which said inquiry is being conducted.
- Employees of public authorities: An employee who is employed under a public authority cannot be dismissed without being granting a fair hearing.
- Pensioners: It is impossible for the government to reduce or to withhold the pension of a person without giving the pensioner an opportunity to be heard.
- Students: A student who is facing disciplinary action cannot be expelled for he is entitled to fair hearing before appropriate authorities as per the principles of natural justice. The same is so even if his exam results are sought to be cancelled as a disciplinary action. However, it must be borne in mind that said principle does not hold true for expulsions from the institution on the basis of academic grounds.
General Instances of application of natural justice
- Discretionary powers: Black’s Law Dictionary defines discretionary power as “one which is not imperative or, if imperative, the time, manner or extent of execution of which is left to donee’s discretion.” When a public official, while acting in an official capacity, decides upon an official matter solely on the exercise of his own judgement, he is exercising his power of discretion. In the exercise of such powers, the principles of natural justice must be adhered to so as to ensure that such exercise of said power is not unfettered.
- Right to property: Article 300-A of the Constitution of India provides for the right of a person not to be deprived of his property except by authority of law. If a person’s right to property is taken away from him by administrative action, and not by way of any written law, he is entitled to have principles of natural justice applied in case of such deprivation. For instance, in the case of Pratap v. Soni v. Gandhidham Development Authority it was held that, prior to the passing of an administrative order to demolish a house the occupant ought to be given appropriate show-cause notice.
- Powers of search and seizure: Powers of search and seizure that are rather extraordinary are given to the State so as to ensure security of the society. The exercise of such powers by the State becomes unwarranted if they do not adhere to the principles of natural justice. For instance, in order to exercise the power of confiscation, the affected party must be given the right to be heard.
- Government contracts: In case of the government contracting with a private party, the principles of natural justice ought to be adhered to, provided the action has a statutory basis, as was stated in the case of State of Haryana v. Ram Kishan. By way of the doctrine of fairness, it is thus possible to amend or alter the express terms of such a contract.
- Blacklisting: The process of blacklisting disables or disqualifies a person from dealing with the concerned authority of a particular area for certain purposes. It is a relatively modern administrative technique which Wade classifies an oppressive instrument by both legal and constitutional impropriety. In modern India, where corruption is common practice and scams are being exposed every other day, blacklisting is quite common an occurrence. The persons that are proposed to be blacklisted are to be guaranteed a right to be heard.
- Replacement of statutory bodies and withdrawal of benefits: Principles of natural justice must be adhered to if the government seeks to suspend or supersede a statutory body such as Panchayat or a Municipal Corporation. If a person is to be stripped of the benefits granted to him by way of administrative action, he must be granted a fair and just hearing.
- Licensing: Licensing equips the licensing authority with the power to regulate certain activities. Though cancellation of a license is not strictly an administrative activity, the refusal to grant a license or suspension of license before actually cancelling it constitutes an administrative action. Principles of natural justice must be applied to such cases.
Apart from the abovementioned, there exist numerous instances of administrative action where principles of natural justice must be applied. Deletion of the name of a person from the election roll, termination of citizenship of an Indian citizen owing to him having acquired the citizenship of another country, an application for winding up by a co-operative society due to insolvency etc are a few examples of the same. The fact that it is somewhat a hectic task to enumerate and elucidate such quasi-judicial and administrative functions is testament to the growth of administrative law as a body of law. It is also further testament to the necessity of the application of principles of natural justice to ensure that the concept of fair play is very much in play as far the growing realm of administrative law is concerned.
The Famous American Judge ,Justice Oliver Wendell Holmes had declared in 1929 that “If there is any principle of the Constitution that more imperatively calls for attachment than any other it is the principle of free thought — not free thought for those who agree with us but freedom for the thought we hate.” Our Constitution too accommodates a hateful thought under article 19 (1) (a) subject to the restrictions mentioned therein. Sedition forms one such restriction. However the lack of understanding of the concept of sedition has several misgivings and has the tendency to color an expression of political dissent as sedition. This coloring is attributable to the definition of sedition under section 124A which makes any expression of disaffection towards existing government seditious . Therefore it becomes pertinent to dispel the doubts about the situation under which the law may become applicable and procedural changes it requires in a developing democratic society to eliminate the fear of prosecution for smooth exercise of the free speech right.
The offence of sedition in India
The first judicial interpretation of section 124A was rendered in the case of Queen Empress v Jogendra Chunder Bose (1892) wherein the Court defined the offence in the following terms ” If a person uses either spoken or written words calculated to create in the minds of persons to whom they are addressed a disposition not to obey the lawful authority of the government, or to subvert or resist that authority if and when occasion should arise, and if he does so with the intention of creating such a disposition in his bearers or readers mind, he will be guilty of the offence of attempt to excite disaffection within the section.” The Constituent assembly deliberately removed the word “sedition” from the constitution in the light of the prevailing section 124A and its interpretation relatable to the restriction “in the interest of security of state ” present in article 19 (2).
Thereafter in the year 1950, the Supreme Court while considering the constitutionality of the laws prohibiting circulation of certain magazines in the interest of maintenance of public order in two cases, Romesh Thapar v State of Madras and Brij Bhushan v Delhi , ruled that “unless a law restricting free speech is directed solely against the undermining of the security of state or overthrow of it, a law cannot be a restriction on free speech.” However Justice Fazal Ali, dissenting in both cases observed that even speeches or words calculated to breach public tranquility and leading to public disorder be termed as seditious and should be curtailed. The dissenting view was later reflected in the first amendment to Constitution as the words “reasonable” and “public order” were added in the article 19(2).
Eleven year after the first amendment, the question pertaining to constitutional validity of section 124A came up before the Supreme Court in the case of Kedarnath v State of Bihar (1962). The Court while declaring the law to be valid cautioned that the section shall not be misused to muzzle free speech which is the life of the liberty. The Court while balancing free speech and section 124A stated that only such activities which are intended, or have a tendency to create disorder or disturbance of public peace by resort to violence can be termed as seditious. The distinction was further elucidated in the recent case of Shreya Singhal v Union of India which distinguished advocacy and incitement holding that only later could be punished.
The procedural compliance in making an arrest on mere filing of complaint under section 124A is inevitable and carries the effect of causing “chilling effect” on the right of free expression. We must remember that procedural law is not to be tyrant but a servant, not an obstruction but an aid to justice. If the procedure has the potential of being misused and abused, then it is the responsibility of the legislature and the judiciary to mould it to bring it in consonance with the constitutionally guaranteed rights. The Supreme Court in 2014 in the case of Arnesh Kumar v State of Bihar has issued the guidelines to be followed before making an arrest under section 498A of IPC due to the misuse of the section. Similar guidelines may also be provided in the light of judicial interpretation of section 124A making it obligatory to establish a prima facie case and obtaining of Courts permission before arresting a person under section 124A.
The application of section 124A is subject to article 19 (2) i.e a speech may be prosecuted for sedition when it either affects the security of state or carries the effect of stirring people blood to violently overthrow the existing government. The procedural stringency must be reduced to protect bonafide speeches. In absence of incitement, no speech can be curtailed. To know the law is not merely to understand the words, but as well their force and effect. Let arms yield to the gown and Court decide the nature of speeches. It is our duty to protect our fellow citizens right to speak though we may not agree with them. Most problems will be solved if we start believing that people are not wrong but different.