Public Does Not Have Right to Be Heard Before Policy Decision Is Formulated: SC

The Supreme Court on Tuesday said the public at large does not have the right to be heard before a policy is formulated and implemented but the process of consultation may be desirable and would facilitate a participatory democracy.

A bench of Chief Justice DY Chandrachud and Justice Hima Kohli made the observation in a verdict on a plea challenging a decision of the Centre, which on the recommendation of the Odisha government, had abolished the Orissa Administrative Tribunal (OAT).

The bench rejected an argument of the Orissa Administrative Tribunal Bar Association that the principles of natural justice have been violated by the Centre and the state government by failing to provide the association and the litigants before the OAT with an opportunity to be heard before abolishing the tribunal.

The bench said, “The decision to establish, continue or abolish the OAT is in the nature of a policy formulated and implemented by the State Government (acting with the Union Government under the Administrative Tribunals Act).”

“The public at large does not have a right to be heard before a policy is formulated and implemented. The process of consultation with the public, with experts, and with other stakeholders may be desirable and would facilitate a participatory democracy,” it said.

The bench, however, said each member of the class that would be impacted by a policy decision cannot be afforded an opportunity of hearing.

“This would not only be time consuming and expensive, but deeply impractical”, it said, adding that the absence of a right to be heard before the formulation or implementation of a policy does not mean that affected parties are precluded from challenging the policy in a court of law.

“What it means is that a policy decision cannot be struck down on the ground that it was arrived at without offering the members of the public at large (or some section of it) an opportunity to be heard. The challenge to a policy may be sustainable if it is found to vitiate constitutional rights or is otherwise in breach of a mandate of law,” the bench said.

It said that the decision to abolish the OAT cannot be assailed on the ground that there was a violation of the principles of natural justice.

The top court said it must be realised that the distinction between quasi-judicial and administrative acts is not always well defined and its application is not always certain.

“Doctrine and practice are not necessarily happy partners. The instant case evidently does not involve a lis or two parties with competing claims appearing before an authority who will determine their respective rights”, it said.

The bench said the act of the central government establishing the OAT did not prejudicially affect the subject in any manner and litigants or other citizens were not left without a forum.

This court agrees with the impugned judgment that the Orissa High Court’s jurisdiction in relation to matters pending before the OAT is not being created or enlarged by the abolition of the OAT, it said.

“It previously exercised such jurisdiction and is merely resuming its jurisdiction over the same subject matter”, the bench said, adding that the natural consequence of the central government rescinding the notification establishing the OAT would be to restore the status quo ante.

“Nothing in either Article 323-A of the Constitution or the Administrative Tribunals Act prevents such a revival. Further, the absence of a provision in the Constitution which explicitly permits a revival does not act as a barrier to such a revival. For the reasons discussed above, we hold that the Union Government’s reliance on Section 21 of the General Clauses Act is in accordance with law”, the bench said.

The top court held that provision of the Constitution does not preclude the Centre from abolishing State Administrative Tribunals and upheld a decision to abolish OAT.

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