Kartik Garg

Judicial checks are insufficient in ensuring fairness as they are conveniently ignored by the executive. The article argues for the need to  have additional legislative and executive checks  to safeguard individual rights.

Introduction

Traditionally, the courts had been reluctant to interfere with the administrative domain which led to the executive abusing its powers. However, recently, the courts have started holding the executive accountable for not exercising its powers in a fair and just manner. In the present paper, it is argued that mere judicial precedents imposing a duty to act fairly do not impose significant costs on the executive to deter them from infringing individual rights. This is evident from the impunity with which the executive arrested Disha Ravi without following due process, passed orders to schools without having any power to do so, abolished the Film Certification Appellate Tribunal effectively taking away the safeguard available to filmmakers, and in one case, “not just reneged on its contractual obligation, but hoarded the refund of the principal and interest” it owed to Unitech Limited.

This paper recommends additional legislative and executive checks to rectify routine disregard of fairness in administrative actions, and therefore maximize welfare. The executive accountability mechanism includes imposing penalties on the wrongdoers which will decrease the likelihood of arbitrary activities. The legislative checks will help the petitioner approach the court based on a codified set of rules. This will simplify the complicated task of adjudication which again reduces the social cost of litigation.

Judicial Recognition and Increasing Violation Costs

Fairness and non-arbitrariness are embodiments of Natural Justice. These two values are constitutionally enshrined in our governance. It is relevant to reproduce the oft-quoted phrase of Justice Bhagwati where he said, “from a positivistic point of view, equality is antithetical to arbitrariness” and held non-arbitrariness to be an essential component of Right to Equality under Article 14. The significance of ‘fairness’ was also elucidated by the apex court in Maneka Gandhi v Union of India where it held that any procedure of law that was in violation of life and personal liberty under Article 21 had to be “fair, just and reasonable and not fanciful, oppressive or arbitrary.”

By recognising these rights as constitutionally protected, the judiciary has elevated their status and increased the value of principles such as impartiality, audi alteram partem, fairness, and reasonableness. What this means is that if a right had been violated when AK Gopalan was good law, the cost imposed on society would only have been ‘X’ as the petitioner suffered the harm due to arbitrariness and absence of due process but after Maneka Gandhi, the same violation imposes a social cost that is more than ‘X.’

This is because of two reasons. Firstly, when a constitutional right is violated, the petitioner approaches the court leading to litigation-related costs that takes up the judiciary’s time which could have been spent on other cases. The author concedes of the possibility that even if the right was not constitutionally recognised, litigation could have still ensued but the likelihood of approaching courts in the absence of a recognised legal right is much less. For instance, the cases and arguments on privacy as a part of dignity have increased after the landmark KS Puttaswamy judgment as privacy is now a recognised Fundamental Right. Secondly, in case of a violation, the violator has to compensate the victim for the purposes of restitution. For instance, in the case of Maneka Gandhi, a post-decisional hearing was ordered by the Court for the sake of fairness. If fairness, non-arbitrariness, and reasonableness were not read into Article 21, the government would not have had to spend resources on conducting a post-decisional hearing. Therefore, it is concluded that when a right is granted constitutional protection, the violation of the same imposes an extra social cost.

Cost and Deterrence

One might be inclined to think that if constitutional protection increases cost, then why does the court keeps on widening the ambit of the rights. What is then necessary to understand here is that, it is not the constitutional recognition that raises costs but the violation of a constitutionally recognised right. The court intentionally raises costs so that there are lesser instances of violation because the more the violations, the higher the cost (both on the society and government). Therefore, the objective is to deter the government from unreasonably violating individual rights by acting in an arbitrary, fanciful, and capricious manner for the sake of administrative convenience. This means that the broad interpretation of rights is intended to reduce overall social costs as it should, strictly speaking, lead to a reduction in the instances of infringement of individual rights.

In A.K. Kraipak v Union of India, the court further imposed such costs on the administrative wing of the executive by subjecting all administrative actions to the Principles of Natural Justice. Prior to AK Kraipak, the executive took shield of the fact that the body was not acting judicially as only quasi-judicial acts were subjected to the Principles of Natural Justice. This changed after the judgment in AK Kraipak as even bodies performing purely administrative functions were obligated to act fairly thereby increasing the costs in case of violation. The Supreme Court has also invoked the acting fairly doctrine and stated that fairness cannot be compromised in any administrative action. This implies that the administrative bodies must uphold the rights of the citizens while ensuring good governance. This is a desirable development as it would be absurd to allow the government to violate the rights of citizens in the name of public interest.

Thus, due to the increased costs of violation, the administrative bodies, even while performing non-judicial functions have to act fairly and, in a way, to not abrogate the rights of citizens. This is the necessary implication of the widened interpretation of Articles 14 and 21.

Maximizing Welfare by Minimizing Individual Gains

However, as already pointed out earlier, the costs imposed by the judiciary are not high enough to deter the executive from acting on its whims and fancies. This means that even if the costs of violation were more than ‘X’, say ‘2X’, they were still within the affordable reach of the executive which could be denoted by ‘Y.’

The question then becomes as to what more additional costs need to be imposed to deter the executive from acting unreasonably and arbitrarily.

Judicial Recourse

The first recourse of every citizen is the judiciary. However, judicial orders may be helpful in that one case but they are conveniently ignored by the executive in the future thereby indicating the ineffectiveness of this remedy. A recent instance of such abhorrent executive behavior is the state’s disinclination to publish orders suspending the internet despite there being a Supreme Court order to that effect. Moreover, in some cases, the favorable judgment of the court may not even be enough to remedy the damage inflicted on the petitioner. For instance, the court may order a post-decisional hearing in a case where the person was unfairly restricted of his right to travel but that post-decisional hearing was of no use to the person affected since he had already missed his important business meet or other commitment due to the restriction. Therefore, though the judiciary seems to be the most readily available resort, it does not impose costs higher than ‘Y.’ All these conclusions are further aggravated when we consider that not every citizen in India has enough resources to approach the judiciary in the first place.

Legislative Check

Being the grantor of powers, the legislature holds a stronger hold over the executive than the judiciary and even the Principles of Natural Justice can be overridden by express statutory provisions. Thus, a legislative check is beneficial in two ways; firstly, by reducing the likelihood of violations; and secondly, by reducing the litigation costs. The executive is much more likely to follow the Principles of Natural Justice and act fairly if such express provision is made, as executive bodies are, in any case, primarily bound by the parent statute; thereby reducing instances of violation.

One way is to include provisions in every future statute for the regulation of executive conduct. For instance, S. 19 (4) of the RTI Act instructs the Central/ State Information Commission to grant a “reasonable opportunity of being heard” to a third party. Though “reasonable opportunity of being heard” is also provided for in the statutes like IRDAI Act, 1999 and SEBI Act, 1992, there have been instances of arbitrary and unfair orders being passed by these authorities. This calls for the inclusion of broader provisions that mandate following the Principles of Natural Justice and passing of orders only after reasoned application of mind. The other way is the enactment of a legislation similar to the Administrative Procedure Act of the United States whose objective is to “improve administration by prescribing fair administrative procedure.”

However, there might still be cases where the prescribed rules are not followed and the aggrieved party might have to turn to courts as a last resort. However, in such a case, courts would not delve into a vague and abstract interpretation of rights but instead, hold officials or bodies liable for acting in violation of the statutory provisions. This simplifies the courts’ job thereby reducing the costs involved in litigation. Therefore, a legislative check may help reduce violations and decrease litigation costs.

Internal Accountability Mechanism

The third method focuses on imposing costs on the individual rather than on the government as a whole. Since the executive acts through its officials, there must be some internal accountability mechanism that discourages officials from acting arbitrarily and capriciously. This can be done through actions such as transferring erring officers or suspending them for a short while. Another possible measure could be to keep a tab on the violations attributed to a particular office and impose a strict penalty after it crosses a certain predefined limit.

An individual is much more likely to follow a rule or principle if one knows that one could personally suffer for acting in a deviant manner. Thus, when costs in form of personal penalties are imposed on an individual, he/she will do his/ her best to stay within the limits. This would mean that even if the costs ultimately do not exceed ‘Y,’ they will more often than not exceed the benefit that individual officer has to gain from violating the rights resulting in lesser instances of rights infringement. All these are possible solutions that need to be explored further.

Conclusion

Though administrative convenience reduces decision-making costs, it imposes additional social costs by subjugating the Fundamental Rights of individuals and increasing the burden on the judiciary resulting in a net loss to society. The judiciary has done its best to make the executive accountable but this is not enough as the costs imposed by the judiciary are conveniently ignored by the executive. Additional checks in form of statutory provisions and internal accountability are required to ensure executive bodies do indeed act fairly. Holding erring public officials individually liable would deter them from acting arbitrarily as personal costs would far outweigh personal gains.

Kartik Garg is a Third Year B.A.LL.B (Hons.) student at the National Law School of India University, Bangalore.