Maneka Gandhi v Union of India (1978)

For this paper it is the case on the flexibility of audi alteram partem: that a hearing may be full or minimal, before the decision or remedial after it, and that where a statute is silent the duty may be read into it by implication. It also supplies the Supreme Court's own account of what Ridge v Baldwin achieved, which is the best short statement of the modern law on when a duty to act fairly arises.

The petitioner's passport, issued on 1 June 1976, was impounded under section 10(3)(c) of the Passports Act 1967 in public interest. When she asked for the statement of reasons required by section 10(5), the Government replied that it had decided in the interest of the general public not to furnish it.

1. Does the power to impound a passport attract the duty to observe natural justice?
2. If so, is a prior hearing indispensable, or may a post-decisional hearing suffice?
3. Was the order valid, no hearing and no reasons having been given?

The order was "clearly in violation of the rule of natural justice embodied in the maxim audi alteram partem". The matter was resolved on the Attorney-General's statement that the Government would consider a representation and give an opportunity within two weeks.

Why natural justice applied. The consequence of impounding "would be to impair the constitutional right of the holder of the passport to go abroad"; the power may be exercised only on specified grounds, so the authority "would have to apply its mind to the facts and circumstances of a given case and decide whether any of the specified grounds exists"; reasons must be recorded and, save exceptionally, supplied; and an appeal lies under section 11. Every mark of a power attracting the duty to act fairly is present.

What Ridge v Baldwin decided, in this Court's account. Lord Reid showed that Lord Hewart's gloss — that there must always be something added to the duty to determine rights before a duty to act judicially arises — "was based on a misunderstanding of the observations of Atkin, L.J."; as Lord Reid put it, "If Lord Hewart meant that it is never enough that a body has a duty to determine what the rights of an individual should be, but that there must always be something more to impose on it a duty to act judicially, then that appears to me impossible to reconcile with the earlier authorities". The duty "may arise from the very nature of the function intended to be performed and it need not be shown to be super-added". In Professor Clark's phrase the decision restored light to an area "benighted by the narrow conceptualism of the previous decade".

The net effect, in the Court's own summary: "the duty to act judicially need not be super-added, but it may be spelt out from the nature of the power conferred, the manner of exercising it and its impact on the rights of the person affected and where it is found to exist, the rules of natural justice would be attracted."

The flexibility passage, the most quoted in this branch of the law. A hearing "may be a sophisticated full-fledged hearing or it may be a hearing which is very brief and minimal: it may be a hearing prior to the decision or it may even be a post-decisional remedial hearing. The audi alteram partem rule is sufficiently flexible to permit modifications and variations to suit the exigencies of myriad kinds of situations which may arise." Lord Reid's warning in Wiseman v Borneman is quoted — he would be "sorry to see this fundamental general principle degenerate into a series of hard and fast rules".

The holding on post-decisional hearing. The rule is not excluded merely because prior notice might frustrate the power. The authority "may proceed to impound the passport without giving any prior opportunity", but "as soon as the order impounding the passport is made, an opportunity of hearing, remedial in aim, should be given to him". Such a provision "can and should be read by implication in the Passports Act, 1967", and read so, the Act's procedure "is in conformity with the requirement of Article 21".

The duty to act fairly need not be super-added by the statute; it is spelt out from the nature of the power, the manner of its exercise and its impact on rights. The content of the hearing is flexible, and where a prior hearing would defeat the power a remedial post-decisional hearing may be read into the Act by implication.

• On post-decisional hearing, it is the permissive line, with Charan Lal Sahu. Against it stand H. L. Trehan and K. I. Shepherd, which say the authority embarking on a post-decisional hearing "will naturally proceed with a closed mind", and Bhagwati CJ's later correction that this case has been misunderstood. Reconcile them: post-decisional hearing is a substitute only where a prior hearing would frustrate the power, and only where the later hearing is a real review on the merits.