IMPACT OF MANEKA GANDHI CASE IN THE PRESENT ERA (W.R.T GOOD GOVERNANCE) BY: PRITAM KUMAR SAMAL
AUTHORED
BY: PRITAM KUMAR SAMAL
PhD
Scholar, Xavier Law School, XIM University, Bhubaneswar
LLM
(Constitutional Law), National Law University Odisha
BALLB
(Criminal Law), KIIT School of Law, KIIT University
ABSTRACT
The
Maneka Gandhi v. Union of India case serves as a constitutional landmark
that significantly broadened the interpretation of Article 21, intertwining it
with Articles 14 and 19, thereby enhancing the scope of personal liberty and
good governance in India. This article delves into the judicial evolution from
restrictive interpretations of fundamental rights to a more expansive view that
emphasizes fairness, reasonableness, and justice. It highlights how the Maneka
Gandhi case laid the foundation for procedural safeguards, including post-decisional
hearings, and influenced modern administrative law, setting standards for good
governance. The case's impact is examined in relation to transparency,
accountability, and the rule of law, which are pivotal characteristics of good
governance. By exploring how the judgment addressed the balance between
individual rights and state power, the article demonstrates the enduring
relevance of the case in ensuring that executive actions align with the
principles of fairness and constitutional governance. The article also analyzes
the continuing influence of this case on subsequent judicial decisions,
contributing to a wider understanding of liberty and governance in the
contemporary legal and political framework of India.
“The
right of personal liberty as understood in England means in substance a
person’s right not to be subjected to imprisonment, arrest, or other physical
coercion in any manner that does not admit of legal justification.” – A.V.
Dicey.
In
the case of A.K. Gopalan v. State of Madras,
the concept of "personal liberty" was first taken into consideration.
A.K. Gopalan was detained under the Preventive Detention Act; therefore, he
challenged the Act on the basis that it violated his right under Article
19(1)(d), i.e., the Right to move freely. He argued that,
(1) Personal
liberty is protected under Article 21, which also includes the right to move
freely.
(2) Article
19 is a substantive right, and Article 21 is a procedural right; both the
Articles should be read together.
(3) The
"procedure established by law" actually meant "due process of
law," and the law established should be in conformity with the principle
of natural justice.
The
Supreme Court rejected the contentions and held that personal liberty can only
be infringed in two ways:
(1) If
there is any physical restraint without the authority of law,
(2) In
cases of coercion.
Here,
the Supreme Court narrowly interpreted the concept of personal liberty under
Article 21. The Supreme Court also held that the meaning and scope of the term
"liberty" is wider under Article 19 than the term "personal
liberty" under Article 21, and it is not mandatory that "law"
under Article 21 should necessarily be in conformity with the principle of
natural justice. Both the Articles can't be
read together as both of the Articles deal with two different aspects of
liberty. However, Justice Faizal Ali gave a dissenting opinion that "the
right to life under Article 21 does constitute the principle of natural
justice, and the procedure should be just, fair and reasonable."
This
restrictive interpretation of personal liberty has not been followed in a later
case, i.e., the Kharak Singh case.
where the Supreme Court held that “personal liberty was not only limited to
bodily restraint but was used as a compendious term including within itself all
the varieties of rights which go to make up the personal liberty of man other
than those dealt with in Art. 19(1).”
Article
21 guarantees the right to life and personal liberty against the arbitrary
action of the executive only before the Maneka Gandhi case and not against
legislative action. After this case, protection was extended against
legislative action as well.
There
has always been a tussle between the Government and the Judiciary in order to
show who is supreme. Before the enactment of the Passports Act of 1967, in the
Satwant Singh Case The court held that under
the purview of Article 21, every person has the right to travel abroad and
re-enter. This is the main reason why the Legislature came up with legislation
in order to put some restrictions on the wider interpretation of the Supreme
Court in the Satwant Singh Case.
·
On June 1, 1976, under the Passports Act
of 1967, Maneka Gandhi(Petitioner) was issued a passport.
·
In July 1977, a letter from the regional
passport officer in Delhi was sent to Maneka Gandhi intimating to her that
"in the public interest," it was decided by the Government of India
to impound her passport under section 10(3)(c) of the Passports Act, 1967.
Section 10(3)(c) states
that;
“If the passport
authority deems it necessary so to do in the interests of the sovereignty and
integrity of India, the security of India, friendly relations of India with any
foreign country, or in the interests of the general public.”
·
Within seven days after receiving the
letter, she has to surrender her passport. Immediately, she wrote a letter to
the Regional Passport Officer asking on what ground or reason her passport was
impounded as provided under section 10(5) of the Passports Act, which states
that;
“Where the passport
authority makes an order varying or canceling the endorsements on, or varying
the conditions of, a passport or travel document under sub-section (1) or an
order impounding or revoking a passport or travel document under sub-section
(3), it shall record in writing a brief statement of the reasons for making
such order and furnish to the holder of the passport or travel document on
demand a copy of the same unless in any case, the passport authority is of the
opinion that it will not be in the interests of the sovereignty and integrity
of India, the security of India, friendly relations of India with any foreign
country or in the interests of the general public to furnish such a copy.”
·
In reply, the authorities stated that
"the reasons are not to be specified in the interest of the general
public."
·
In response to this, Maneka Gandhi filed
a writ petition under Article 32 saying that section 10(3)(c) is ultra vires
and it is violative of fundamental rights under Articles 14, 19, and 21.
1. Whether
there is a nexus between Articles 14, 19, and 21.
2. Whether
Article 21 also includes the right to travel abroad and re-enter.
3. Whether
it is reasonable or not, a legislative law takes away the right to life.
4. What
is the scope of “procedure established by law” under Article 21?
1. The
concept of "personal liberty" under Article 21 is inclusive of the
"right to travel abroad." Therefore, no citizen can be stopped from
enjoying this right except according to "procedure established by
law."
Section 10(3)(c) is violative of Article 21.
2. There
is no procedure prescribed under the Passports Act of 1967 for impounding the
passports of its holders. Hence, this promotes arbitrariness and
unreasonableness.
3. By
not giving the petitioners an opportunity to be heard, the Government violated
Article 21 of the Constitution. "Audi alteram partem" is an important
component under the principles of Natural Justice, i.e., the right to be heard.
Even if it is not expressly mentioned in any provision of the Constitution, no
one can be deprived of it.
4. The
procedure established by law should be reasonable, fair, and just despite the
fact that India has not adopted American "due process of law" in its
Constitution.
5. Articles
14,19 and 21 should be read together so that they will affect the spirit of the
Constitution and Constitutional makers, though they are not mutually exclusive.
1. As
the Petitioner was required to appear before some committee for inquiry, her
passport was impounded. It was also argued by the state that the "Right to
travel abroad" is not mentioned in the Constitution. Therefore, Section
10(3)(c) is not violative of Article 21.
2. There
cannot be any compulsion on the Government to provide reasons for impounding
someone’s passport if it is being done for public good and national safety.
3. The
court should not follow the principles of Natural Justice as these are
ambiguous and vague. As per the principles laid down in the case of A.K.
Gopalan, the word "law" under Article 21 shall not be interpreted on the
basis of fundamental rules of natural justice.
4. In
order to prove any law as violative of Article 21, it also has to be proved
that Articles 14 and 19 are getting directly infringed because the scope of
Article 21 is very wide, and it is inclusive of the provisions of Articles 14
and 21.
5. "Due
process of law" is an American concept and "procedure established by
law" is a British concept. While drafting the Constitution, the makers
adopted a "procedure established by law"; hence, we should protect
the minds and spirit of makers.
On
25th January 1978, the decision was made by a 7 Judge Bench, and
this was a unanimous decision, in which some judges had concurring opinions or
points. From 7 separate opinions, Justice Chandrachud, Justice Iyer, and Justice
Beg (CJ) wrote separate but concurring opinions, and the rest of the majority
opinions were given by Justice Bhagawati on behalf of Justice Utwalia and Justice
Fazal Ali.
The
findings of the court are as follows:
(i)
Even if the concept “procedure established
by law” has been used instead of “due process of law” under Article 21, the
procedure can’t be irrational and arbitrary.
(ii)
The court gave an expansive or liberal
interpretation of Article 21 and held that we could not narrow down the scope
of the concept of "personal liberty." Article 21 can be expanded in
such a way that it can cover all the fundamental rights.
(iii)
The court held that a unique
relationship exists between Articles 14, 19, and 21. They are dependent on each
other and have to be read together. Earlier, it was held that these articles in
themselves are mutually exclusive in the case of A.K. Gopalan, which was
overruled in this case.
(iv)
Article 21 also guarantees the right to
travel abroad, which was also decided in the case of Satwant Singh.
(v)
On the grounds of reasonableness,
ultra-vires, against the principle of natural justice, etc., an administrative
order can be challenged. In this case, the sections dealing with administrative
actions are Section 10(3)(c) and 10(5) of the Passports Act.
(vi)
Article 10(3)(c) is violative of Article
21 as there was no procedure mentioned in the section. This section also
imposes unreasonable restrictions on Articles 19(1)(a) and 19(1)(g), which are
not even there in Articles 19(2) and 19(6), which deal with reasonable
restrictions. This section is also violative of Article 14 as it gives
undefined power to the passport authority, which they can use as per their
whims and fancy in the name of the "interest of the general public."
(vii)
Privileges given under Section 10(5)
have to be rarely used by the authorities, and it is suggested that they should
provide reasons as well while using this provision.
(viii)
Rights are beyond the territorial limit
of India, which are discussed under Article 19(1)(a) and 19(1)(g).
(ix)
Constitution makers were never of the
mindset that the procedure need not necessarily be fair, reasonable, and just
as they made the constitution in order to protect the "people of
India" from arbitrary actions. If the compulsion of procedures to be just,
fair, and reasonable will not be there then it will have an adverse effect like
a self-destructive bomb placed in the heart of the Constitution.
The
Supreme Court, in this case, rectified the mistakes in a commendable way, which
was made earlier in the decision of A.K. Gopalan. This decision of the court
will serve the common people.
The
court did the right thing by rejecting some of the vague contentions of the
respondent, like procedures established by law need not necessarily be just,
fair, reasonable, and another contention, i.e., the law is invalid only if it
has been repealed by the Legislature. The liberal interpretation was given to
personal liability and the right to life by the rejection of the faulty
arguments of the respondent.
In
this case, a new doctrine, i.e., Post-decisional hearing, was evolved. It means
the hearing which takes place after a provisional decision has been reached. There
is a relationship between post-decisional and pre-decisional hearings. In order
to maintain administrative fairness, this doctrine was established.
In
cases where it is not feasible to conduct pre-decisional hearings, then there
should be post-decisional hearings. For example, in cases of an impounding
passport, if a prior notice is given, then there is a high possibility that the
concerned person may leave the country on such notice. Hence, in such a
scenario, a post-decisional hearing is better, i.e., impounding the passport
first and then providing him/her with the opportunity to hear. But Justice Chandrachud
was against this particular notion.
It
can be derived that the exception to post-decisional hearing is "Audi
Alteram Partem," which states that immediately after an order is made, the
person should be provided a fair opportunity to be heard. For an aggrieved
party, a pre-decisional hearing will always provide better safeguards.
The
court also held that if there is a procedure established by law and it is
somehow curtailing personal liberty, then it has to pass the "test of
reasonability," i.e., the procedure has to be just, fair, and reasonable.
After the liberal interpretation of this case, there was no more difference
between "procedure established by law" and "due process of
law," and both of them are now inclusive under Article 21. Justice Bhagwati,
also in support of this, stated that "there is a unique relationship
between the provisions of Article 14,19 and 21and every law must pass the test
of the said provisions."
Justice
Iyer opined that "no Article in the constitution is an island in itself,"
which means Fundamental Rights are mutually dependent on each other, and they
are not distinct. He also mentioned that "Travel makes liberty
worthwhile," which means every person has the right to travel abroad, and
it cannot be deprived unnecessarily.
Every
cultural and socio-economic right was inserted by the court in every possible
way under the scope of Article 21. Wherever the ratio of this judgment was
applied, it held the right to freedom from noise pollution,
right to livelihood,
right to clean environment,
right to medical care,
speedy trial, legal aid,
right to food, right to clean water,
right to clean air
and recently, the right to privacy
as a part of Article 21, i.e., the right to life and personal liberty.
The terms
Governance and Good Governance are terms that are becoming increasingly
important in the present era.
Governance, in simple terms, refers to the management of a country's
resources and also includes the manner and process of decision-making. In
layman's terms, Governance is what governments do. However, the list is not
exhaustive. The government is not the only actor who plays a role in this
governing process. The others involved may be NGOs, research organizations,
cooperatives, associations, and political parties as well. This happens mostly
at the rural level. A few more dimensions can be added at the national level.
Media, multinational corporations, and lobbyists may have an impact on the
decision-making process, at least to some extent.
Also,
governance is not something that is limited to governments alone. It is
prevalent in almost all types of organizations, such as families, businesses,
gangs, religious denominations, and state and international organizations.
Governance is about organizing following a set of rules, regulations, and laws
to ensure that an organization runs smoothly and efficiently and delivers
productive results. The word governance can be traced back to the word
kubernaein (Greek origin), which means to steer.
Good
governance has strong connections with administrative law. It can be considered
as a normative aspect of administrative law. It puts positive obligations on
the state to ensure certain fundamental values like prevention of corruption,
efficiency, and quick responses in a civil society. It can also be termed as
the art of statecraft.
The United
Nations ESCAP says that good governance is ideal, and the states need to keep a
check on a variety of factors to ensure that good governance is being
exercised. Not many states have been able to achieve good governance in a true
form. It also lists certain features that form the essence of good governance.
It also acts
as a tool for conducting public affairs as well. So, there is no fixed
definition of good governance. However, there are certain characteristics of
good governance that remain the same despite the various levels of governance.
Characteristics Of Good Governance
PARTICIPATORY
BEHAVIOUR
So, good
governance tends to encourage participatory behavior. Participation has to come
from each and every member of the society. It has to take views of all the
sections of society, including the vulnerable sections. The participation also
has to be informed and systematic. There has to be a balance between the
freedom of being able to form an association and also preventing any chaotic
atmosphere.
RULE OF LAW
The rule of
law is considered to be the essence of constitutionalism. The rule of law and
not the rule of man is the crux of good governance. The concept of limited
government. This means that no power is absolute in nature. There has to be a
system of checks and balances. The presence of checks and balances and the
proper functioning of checks and balances are equally important. Adhering to
the principles of natural justice is like giving an opportunity to hear both
sides. As far as the judiciary is concerned, to not hear cases when the judges
have some interest involved.
TRANSPARENCY
The
governing process has to be transparent. There should not be any shady business
involved. The people in any nation-state put their faith in the people who hold
power to govern the state. They trust the people in power to ensure that
everything will happen in an unbiased manner, that they fulfill their duties
and responsibilities, and that they work towards the progress of the country.
Transparency will help people be aware and informed of whatever is happening
around them, and they should also have the right to know.
RESPONSIVENESS
The more
responsive the government, the more it indicates that it is actively working on
governance, and it will also maintain the interest of the public with respect
to any decision-making process. Otherwise, eventually, the relationship will
steer towards stagnancy.
CONSENSUS
ORIENTED
When you are
governing the country, you need to keep future aspects in mind as well. The
general public should be provided with some medium or platform where they can
express their views or opinions. Or they can pitch their ideas and suggestions.
A broad consensus will help the governing bodies to understand and analyze the
needs and the mindset of the people.
EQUITY AND
INCLUSIVENESS
The
well-being of society also depends on the fact that no one feels excluded.
Everyone should feel that their interests are also being considered like the
others. Those who are not in a privileged position should be provided a
platform to reach the same level as those who are in the advantageous section
of society.
EFFECTIVENESS
AND EFFICIENCY
The entire
idea of good governance will go down the drain if no effective results are
produced. The goal is to see the required changes and progress of the society.
The smooth running of the state. As far
as efficiency is concerned, sustainable development practices should also be
kept in mind. Environmental protection is also important.
ACCOUNTABILITY
The
governing bodies need to be accountable to the people who will be affected by
their decisions. It is a key requirement of good governance. The rule of law is
essential in order to get accountability. So is transparency.
The judicial
thought process before the Maneka Gandhi case undermined the importance of
personal life and liberty. From a constitutional point of view, it serves as a
major landmark decision and judgment. It expanded the scope of Article 21 under
the Constitution. It introduced the
concept of due procedure established by law. It is important from the angle of
individual liberty. It is one of those classical cases which set the benchmark.
However, it also has made a significant contribution to administrative law in
the form of good governance.
Good
governance and Administrative law are two concepts that go together. Administrative
law, which does not include good governance as the fundamental part of it, has
no value. Good governance is like the
fire that keeps the candle burning. It is something that is to be observed and
felt. The issue with good governance is that it does not have an exact
definition. The scope is not fixed. It can mean different things to different
individuals. So, it, in a way, allows the user to set its own boundaries and
parameters.
Also, the
functions and duties of the government have gradually increased and become more
layered, given the welfare state that we live in at present. This necessarily
calls for efficient management and governance by those who are in positions of
authority. This is where administrative law comes in. A set of rules and regulations
combined with the element of good governance.
The Maneka
Gandhi case sheds light on both the aspects of procedure established by law and
due process of law. The focus was on expanding the scope of personal liberty.
Justice Bhagwati, in the judgment, has also emphasized how any law must be
just, fair, and reasonable in case it hampers personal liberty. He calls it the
triple test, under which a procedure has to be laid down; the procedure must be
consistent with Article 19 and Article 14. It clearly has had an impact on the
scope of personal liberty. The Maneka Gandhi case has widened the scope of
liberty.
The Maneka
Gandhi Case makes an important contribution to administrative law by
introducing the concept of post-decisional hearing. It can be traced back to
the natural justice principle of Audi alterem partem. This means that both
sides should be given equal opportunities to be heard. We are aware that there are certain
exceptions to natural justice principles, such as emergencies, public interests,
administrative matters, and others. The idea is that if immediate action is not
taken, it will defeat the purpose of the action. It may lead to further harm,
which was supposed to be prevented.
However, it
cannot be denied that administrative authority holds an immense amount of
power. So there has to be a check on their power, too. Otherwise, it will give
scope for abuse of power. The equivalent term for these administrative actions
in the U.S. is summary powers. While these powers are necessary, the individual
also needs some sort of protection in case the administrative authority
exercises its power in an unjust and arbitrary fashion.
Bernard
Schwartz also stresses the fact that even though the ordinary course of nature
is to provide a hearing before the authority acts, a hearing may be afforded
after the act is done. Besides, it is nowhere written in absolute terms that a
hearing necessarily has to be a prior hearing.
Armstrong v.
Manzo states that the hearing should be granted at a meaningful time and in a
meaningful manner. There should be a prudential inquiry that happens on a
case-by-case basis.
In the
Maneka Gandhi case, the administrative authority was also of the view that the
action had to be taken immediately; otherwise, the entire purpose of impounding
her passport would have been defeated. So, going by this logic, the principle
of Audi alterem partem would have been excluded. However, Justice Bhagwati gave
a pretty broad interpretation. He was of the opinion that the rule of Audi
alterem partem is a cardinal rule. Therefore, it should be given priority to
the maximum possible extent. The contention that the purpose of impounding the
passport would have been defeated with the hearing does not seem to be
reasonable. Even if the impounding was done earlier without the hearing, it
should be ensured that the hearing is conducted later. This is what gave rise
to the concept of post-decisional hearing.
It also
sheds light on the concepts of due process and procedure established by law.
The majority in the seven-judge bench declared that apart from procedure, the
law must also be fair, reasonable, and just. Arbitrary laws must not be
considered even in the presence of laws. The Sunil Batra case has added more
clarity on this, basing it on the Maneka Gandhi Judgment. It has also, in a
way, brought a change in the roles of the Supreme Court from just simple
monitoring to becoming guardians of the fundamental rights of people. It has
tried to understand the intention of the framers and how it does not aim at
taking a narrow view of these rights so that people are at the mercy of the
state. Hence, they have stressed giving the widest possible view, which will enhance
the dignity and individuality of a person.
So, good
governance can mean multiple things to multiple people. There are no clear
demarcations as to what is excluded and what is not. So, it pretty much
encompasses a wide range of concepts from the rule of law to transparency and
accountability and participation, responsibility, tolerance, and other values.
However, the essential relationship in good governance lies between the
government and the people whom it governs. The judgment in the Maneka Gandhi case
presents how the judiciary can act as a means to promote good governance. It
indeed plays a crucial role. Our country primarily consists of three divisions.
That is the Legislature, executive, and judiciary. Now, as far as the
Legislature and judiciary are concerned, they have their work defined. The
executive, which basically runs the administration of the country, does not
have any clear boundaries as such. The lack of a clear boundary gives more
power as it includes all residuary powers that are excluded from legislative
and judiciary actions. It makes the executive extremely powerful. We cannot
deny the fact that the more power someone has, the more likely it is to abuse
it. J. W. Garner
says, "In a broad and collective sense, the executive organ embraces the
aggregate or totality of all the functionaries who are concerned with the
execution of the will of the state as that will have been formulated and expressed in terms of the law." The
administrative authorities play a vital role in ensuring that good governance
practices are being followed to ensure the smooth running of the country.
Hence, it is fundamental that they act in a fair and reasonable manner. Sir
Robin Coke also stated that "The Administrative Authorities must act
fairly, reasonably and
according to law. This is the essence of administrative law."
Justice Douglas, in the case of US
v. Wunderlich, has stated that "Where
discretion is absolute, man has always suffered. Absolute discretion is more
destructive of freedom than any of man's other inventions." So, it is the
duty of the concerned administrative authorities to give the people assurance
that the discretion given to the administration is being used for the benefit
of the people. Individual facts and circumstances are being taken into
consideration, and decisions are being made accordingly.
Judicial
control is the key to ensuring that the idea of good governance is being
realized to the fullest extent and that the effects are being seen. George
Washington has also stated that “The
administration of justice is the first pillar of good governance.” Even Lord
Bryce has mentioned that “There is no better test of the excellence of a government than the
efficiency of a judicial system; for nothing more clearly touches the welfare
and security of the average citizen than the feeling that he can rely on the
certain and prompt administration of justice.”
There may be a number of laws, rules, es, and regulations, but when it
comes to the resolution of disputes, it is the court that takes charge of the
situation. Following the Maneka Gandhi
Judgment, we cannot deny that the Supreme Court has made a significant
contribution to good governance. It covers all aspects like human rights,
fundamental rights, environment protection, police reforms, elections, and
other areas. The list is not exhaustive. It has expanded the scope of
fundamental rights continuously and has upheld the dignity of individuals in
the true spirit of governance.
In the case of Unnikrishnan v. State of UP[23]
The court definitely expanded the scope of Article 21. It included rights such
as the right to go abroad and the right against delayed execution, solitary
confinement, and handcuffing as well.
In Francis Coralie v. Union Territory of Delhi[24] The court
highlighted how the right to interact with members of the family and also the
right to interact with our lawyer comes under the purview of Article 21.
In Mithu v. State of Punjab[25]
The court cited the Maneka Gandhi case and held that the right to be heard
would become futile as the sentence in question was of a mandatory nature. This
at least saves the prisoner from having false hopes of gaining any change in
the consequences.
These are only a few instances. However, the case has completely led to
a paradigm shift in terms of good governance and the scope of Article 21. The
right to personal liberty and life is a key factor in enhancing good
governance. This case has broadened the scope and has made it more inclusive.
It has ensured that now, when you talk about the right to life and liberty, you
need to look at it from a bigger angle, the main focus being individual rights
and freedom. The post-decisional hearing was a first. This has reiterated how
the executive power needs to be checked to curtail abuse of power. It has
highlighted the importance of good governance and how the administration while
giving out orders, needs to keep this in mind.
So, this particular judgment is pretty important and has been referred
to whenever needed. It has added colors to a rather colorless approach taken by
the executive.
