COMMENTARY
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Judiciary’s Skewed Vision of Natural Justice
SAHRDC
The natural justice content of the Indian Constitution provides an illusory comfort as the judiciary tends to adopt an overly constricted interpretation of natural justice, merely equating it with statutory law. This analysis emphasises that to safeguard citizens’ rights, the courts must engage with all facets of the law and adopt an expansive and meaningful reading of natural justice.
SAHRDC is the South Asia Human Rights Documentation Centre, New Delhi.
Economic & Political Weekly
EPW
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Natural justice can contribute a moral dimension to positive law.2 Since the Supreme Court 1978 decision in the Maneka Gandhi case,3 Indian courts have read aspects of natural justice into Articles 14 and 19 (reasonableness) and Article 22 (fairness) of the Constitution.
Yet, the “natural justice” content of the Constitution provides an illusory comfort: the Indian judiciary tends to adopt an overly constricted interpretation of natural justice, merely equating it with statutory law. Both the Supreme Court and state high courts assess whether there are procedures in place, but they rarely critique the adequacy of such procedures.4 This impotent vision of natural justice legitimises statutes – like the National Security Act
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| (NSA), which authorises preventive detention,5 and analogous state preventive detention laws – whose procedural mechanisms do not ensure basic standards of fairness and reasonableness. The State’s rampant violation of Indian citizens’ human rights, under the authority of such |
statutes, thus goes effectively unchecked.
Judiciary and Natural Justice
A key flaw in the Indian judiciary’s interpretation of natural justice is the claim that courts cannot import more expansive notions of natural justice, against which to measure the sufficiency of statutory procedural safeguards or executive action, into the Constitution.6 This position is reminiscent of a disturbing, Emergency era judgment, Additional District Magistrate, Jabalbur vs S S Shukla (Jabalpur), in which the Supreme Court exclaimed:
The principles of natural justice…must always hang, if one may so put it on pegs of statutory provisions or necessarily flow from them and have no independent existence. Fundamental Rights are basic aspects of rights selected from what may previously have been natural or common law rights. These basic aspects of rights are elevated to a new level of importance by the Constitution. Any other co-extensive rights, outside the Constitution, are necessarily excluded by their recognition as or merger with Fundamental Rights.7
The Supreme Court has since recognised that the majority decision in Jabalpur
COMMENTARY
“violated the fundamental rights of a large number of people in this country”.8 However, the Indian courts continue to defer to statutory formulations of procedural rules, which seem to inherently satisfy constitutional requirements of natural justice,9 in a manner consistent with the Supreme Court’s reading of Article 21 in Jabalpur.10
Indian jurisprudence on preventive detention under the NSA11 provides a stark example of how courts, notwithstanding the discrediting of Jabalpur, continue to privilege statutory procedures over greater notions of natural justice, and thereby, deprive petitioners of a full and meaningful enforcement of their fundamental right to life and liberty.12
Preventive Detention
In the case of preventive detention, Indian courts have consistently held that procedures enumerated in the NSA13 satisfy the natural justice requirements mandated by Article 22.14 This interpretation leaves no room for the courts to import basic, natural justice procedural mechanisms – the right to a lawyer, for instance, into preventive detention situations. The State is thus permitted to deprive Indian citizens of their right to liberty15 through preventive detention, provided the detaining authorities implement NSA procedures.
The apparent presence of natural justice in other constitutional provisions has not helped safeguard the fundamental rights of detenues. The Indian judiciary has distilled the “reasonableness” requirement of natural justice found in Article 19, to the mandates of Article 22 (in consort with the NSA):
The principles of natural justice insofar as they are compatible with detention laws find place in Article 22 itself and also in the [National Security] Act. Even if Article 19 be examined in regard to preventive detention it does not increase the content of reasonableness required to be observed in respect of orders of preventive detention. The procedure in the Act provides for fair consideration to the representation.16
In other words, provided a detaining authority can be shown to have appliedher/his mind to the facts at hand to reach a subjective satisfaction that preventive detention was warranted, as per the NSA procedures the “reasonableness” criterion of Article 19 is satisfied. The courts do not ask key questions: is it reasonable, for instance, to preventively detain a person on the grounds that they may be released on bail for another alleged crime, thus overriding a judicial order?17
The equality guarantee of Article 14 should invalidate preventive detention legislation because the law accords similarlysituated criminal detainees greater procedural rights, and hence access to natural justice, than persons detained under the NSA. At the very least, Article 14 entitles preventive detenues to the same procedural safeguards as criminal detainees. The courts, however, employ a tenuous distinction to dispose of this inconvenient argument:
Article 14 is inapplicable because preventive detention and prosecution are not
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COMMENTARY
synonymous. The purposes are different. The authorities are different. The nature of proceedings is different. In a prosecution an accused is sought to be punished for a past act. In preventive detention, the past act is merely the material for inference about the future course of probable conduct on the part of the detenue.18
This analysis overlooks the fact that the potential human rights violations experienced by criminal or preventive detainees are similar – both stand to be imprisoned, basis of a hypothetical threat, for an indefinite period of time, without the right to an automatic judicial hearing.
The Indian courts must engage all facets of the Indian law and adopt an expansive and meaningful reading of natural justice. Only this can safeguard the rights of Indian citizens against the State’s illegitimate resort to preventive detention.
Notes
of individuals, at the same time, the authorities who have the responsibility to discharge the functions vested in them under the law of the country should not be impeded or interfered with without justification” (citing Jabalpur case as support).
9 See e g, Haradhan Saha, supra note 4 (the Supreme Court held that Section 8 of the National Security Act, outlining the detenue’s right to make a representation, satisfied the constraints of natural justice as embodied in Article 22(5) of the Constitution).
10 Article 21 reads: “No person shall be deprived of his life or personal liberty except according to procedure established by law” (emphasis added). In Jabalpur case, supra note 5, the Court held that “law” referred solely to statutory law (or “lex”), as
losing their right to liberty. Preventive detenues, in fact, often suffer even greater human rights violations by virtue of the frequently arbitrary nature of their detention and the absence of judicial oversight.19 The NSA detenues are not even accorded the most basic right to a judicial hearing20 rather, detenues themselves bear the onus of submitting habeas corpus petitions, and automatic review of detentions by an advisory board only occurs for detentions of three months or more. The natural justice component of Article 14 is thus completely undermined.
Conclusions
Notwithstanding the Supreme Court’s apparent turnabout from its decision in the Jabalpur case, the Emergency era ethos regarding natural justice persists. The problem is not that courts are unwilling to read “natural justice” into the Constitution. The problem is that the judiciary’s perception of what constitutes “natural justice” is equivalent to that which is statutorily pronounced. Natural justice in the Indian context is thus stripped of its larger sense of procedural fairness and reasonableness, in favour of legal positivism and judicial deference to legislators and the executive.
As a result, the courts offer limited recourse for persons detained under preventive detention legislation. Detenues are deprived of any basis upon which to claim access to such procedural mechanisms as the right to a lawyer, or other fundamental manifestations of natural justice. These measures are particularly necessary in the context of preventive detention, which entails dire consequences that resemble those foreseen by criminal law but exceed them in severity. Specifically, preventive detention entails the complete deprivation of an individual’s right to liberty, on the
Economic Political Weekly
EPW
1 Lon L Fuller, “Positivism and Fidelity to Law – A Reply to Professor Hart” (1958), 71 Harvard Law Review 630.
2 Natural justice is a common law principle that informs minimum requirements of procedural fairness and due process. It can be understood as ensuring that the mechanisms of justice are such that substantive justice is delivered, and it is manifest in such principles as the right to consult a lawyer and the right to a speedy trial. Early in the British common law tradition, natural justice was embodied in two tenets: audialterampartem (hear the other side) and nemoiudex in causasuadebetesse (no man may judge his own case). For a brief history of natural justice and a discussion of its application in the Canadian context, see Roderick A Macdonald, “Procedural Due Process in Canadian Constitutional Law: Natural Justice and Fundamental Justice” (1987), 39 University of Florida Law Review217.
3 Maneka Gandhi vs Union of India, 1978 AIR 597, 1978 SCR (2) 621. 4 See e g, Haradhan Saha Another vs The State of
West Bengal Ors, 1974 AIR 2154, 1975. SCR (1) 778 (Haradhan Saha case) (the Supreme Court held that Section 8 of the National Security Act, outlining the detenue’s right to make a representation, satisfied the constraints of natural justice as embodied in Article 22(5) of the Constitution); The State of Bombay vs Atma Ram Sridhar Vaidya, 951 AIR 157, 1951 SCR 167 (Atma Ram Sridhar Vaidya case) (the Supreme Court asserted that, so long as the detaining authority under the Preventive Detention Act, 1950 could be said to have determined that the grounds for detention were “in some manner” connected with the objectives of detention, the court could not interfere in this assessment).
5 Preventive detention comprises the detention of a person by the executive branch of government, in order to prevent him or her from committing a future crime.
6 See e g, K Rahima vs The State of Tamil Nadu, HCP No 1133 of 2004, 28 March 2005 (Madras High Court).
7 Additional District Magistrate, Jabalpur vs S S Shukla Etc, 1976 AIR 1207, 1976 SCR 172 (Supreme Court of India).
8 Ramdeo Chauhan @ Rajnath Chauhan vs Bani Kant Das Ors, Review Petition (C) No 1378 of 2009 in Writ Petition (C) No 457 of 2005, 19 November 2010 (Supreme Court of India). See also I R Coelho (Dead) by Lrs vs State of Tamil Nadu Ors, Appeal (civil) 1344-45 of 1976, 11 January 2007 (Supreme Court of India): “The decision in Additional District Magistrate, Jabalpur about the restrictive reading of right to life and liberty stood impliedly overruled by various subsequent decisions”. Problematically, however, some recent cases still cite Jabalpur case (specifically, its restrictive stance on fundamental rights) approvingly. See State of Maharashtra Ors vs Bhaurao Punjabrao Gawande, Appeal (crl.) 417 of 2008, 3 March 2008 (Supreme Court of India) (Maharashtra): “While no doubt it is the duty of the court to safeguard against any encroachment on the life and liberty
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distinct from more fundamental principles (or “jus”) – like natural justice – that guide what law ought to be.
11 This analysis similarly applies to analogous state preventive detention legislation.
12 Article 21, Constitution of India.
13 These procedures include: (1) the detaining authority must apply his mind to the facts to reach a subjective satisfaction that detention is necessary; (2) he must provide the detenue with the grounds for the detention; and (3) the detenue must be permitted to make a representation regarding the detention. Analogous procedures are found in state preventive detention legislation.
14 Atma Ram Sridhar Vaidya, Note 4 (Supreme Court of India). Occasionally, the judiciary even bows to executive formulations of fair and reasonable process. In State of Andhra Pradesh Anr vs Balajangam Subbarajamma, 1989 AIR 389, 1988 SCR Supl (3) 620, the Supreme Court held that the “wisdom” of Advisory Board members constituted sufficient guarantee of procedural fairness for the purposes of ensuring natural justice, “no matter what … procedure” actually applied.
15 Article 21, Constitution of India.
16 Note 5.
17 This justification is commonly invoked by detaining authorities in preventive detention cases. See e g, Ramesh Kumar Upadhyaya vs State of UP And Ors, 2006 CriLJ 2247 (Allahabad High Court); Satish vs Union of India (Uoi) And Ors, 2007 CriLJ 1366 (Allahabad High Court). While in both cases the habeas corpus petition was allowed on the basis of errors relating to the petitioners’ representations, neither court took issue with the fact that the detentions were premised on a fear of the petitioners being released on bail.
18 Haradhan Saha, Note 4. This point is also emphasised in Maharashtra, s Note 8.
19 A 1996 Amnesty International report documents how preventive detention legislation is used to detain thousands of political prisoners, without trial, in violation of the right to freedom of speech and expression enshrined in Article 19 of the Constitution of India. It also documents the rampant torture or preventive detenues, as well as instances of custodial deaths, in violation of the UN Convention against Torture and Other Cruel and Inhuman or Degrading Treatment or Punishment. Amnesty International, “Amnesty International et L’Inde”, March 1996, ASA 20/05/96, available at http:// www.amnesty.name/en/library/asset/ASA20/005/ 1996/en/f3cbb30b-eb10-11dd-aad1-ed57e7e5470b/ asa200051996fr.pdf (accessed 20 June 2011).
20 Article 14 of the International Covenant on Civil and Political Rights (to which India is a signatory) provides minimum procedural guarantees for persons detained on criminal charges. These include: the right to counsel (14.3.b); the right to “be tried without undue delay” (14.3.c); and, in the case of a criminal conviction, the right to have the conviction and sentence reviewed by a higher tribunal (14.5). These minimum standards of natural justice ought equally to apply to persons detained under India’s preventive detention regime.
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