Culture of Justification: Has the State come of age yet?
By: Chaitra S.* |
Public law in most democratic countries has advanced from a culture of authority to a culture of justification in recent times. The concept was first articulated and given name to by Etienne Mureinik in the backdrop of formulation of Bill of Rights for the newly liberated South Africa in 1990s. According to him, “At its core, a culture of justification requires that governments should provide substantive justification for all their actions, by which we mean justification in terms of the rationality and reasonableness of every action and the trade-offs that every action necessarily involves, i.e., in terms of proportionality”. In India, this concept has not yet been recognised formally and governments are not bound by law to provide reasons for their actions. However, the courts have off late begun to emphasise and apply the concept as can be seen in the UP Banners case taken up suo moto by the Allahabad High Court in March this year. While the courts have time and again tilted towards the culture of justification in their jurisprudence and judgements dealing with State action, the same has not been adopted by the government, which the above case showcases. This article seeks to analyse the actions of the UP government in this particular incident and tries to situate it with the larger context of the concept of justification developed over the past few years and what it means for a democratic country.
In March this year, the Uttar Pradesh administration ordered public display of banners at prominent places in Lucknow containing the names, photographs and addresses of more than fifty CAA – NRC protesters, who were alleged to have caused damage to private and public property and against whom compensation proceedings were underway. The motive was to deter other protesters from destroying property by showcasing that similar action could be taken against them too. The Allahabad High Court took suo moto cognizance of this order and registered a PIL against the government administration. After observing that the orders had been passed neither with the authority of law nor with cogent justification, the court rightly ruled that the actions of the state were “an unwarranted interference in the privacy of people” [However, this decision was appealed before the Supreme Court, which ordered that the case be referred to a larger bench for consideration. The larger bench of Allahabad High Court is yet to hear the case at the time of writing this article].
The emphasis placed by the court on lack of authority of law and justification offered by the UP administration in violating the fundamental right to privacy marks the application of the culture of justification. This concept was first articulated in India by Justice Khanna in his dissenting opinion in the ADM Jabalpur case. His statement is instructive here:
“Even in the absence of Article 21 in the Constitution, the State has got no power to deprive a person of his life or liberty without the authority of law. This is the essential postulate and basic assumption of the rule of law and not of men in all civilised nations. Without such sanctity of life and liberty, the distinction between a lawless society and one governed by laws would cease to have any meaning. The principle that no one shall be deprived of his life or liberty without the authority of law is rooted in the consideration that life and liberty are priceless possessions which cannot be made the plaything of individual whim and caprice and that any act which has the effect of tampering with life and liberty must receive sustenance from and sanction of the laws of the land. Article 21 incorporates an essential aspect of that principle and makes it part of the fundamental rights guaranteed in Part III of the Constitution. It does not, however, follow from the above that if Article 21 had not been drafted and inserted in Part III, in that event it would have been permissible for the State to deprive a person of his life or liberty without the authority of law.”
Justice Khanna’s dissent and the recent overruling of ADM Jabalpur in the Puttaswamy case has established that no fundamental right can be infringed upon without authority of law. This tilt towards the culture of justification in case of violation of the fundamental right to privacy (as is the case here) must be a set of cogent reasons fulfilling the tests laid down in the Puttuswamy judgement, which are (a) Legality, (b) Proportionality, (c) Legitimate goal, and (d) Procedural guarantees. It is no longer enough that the authority pronouncing the law is legally constituted. The State cannot force anything against its citizens merely by invoking a larger goal of public interest, as was done in this case. The culture of justification here would mean something as follows,
“It [the State] must justify that its exercise of power will actually serve public-welfare. It must explain that the only way of doing so is through the route of force and compulsion. It must prove that there is no other non-coercive way of achieving that goal, and that it is not imposing any more compulsion than is strictly required in the interests of public welfare. It must show that the amount of power it arrogates to itself in order to carry through its coercive action is proportionate to the importance of the goal it seeks to achieve.”
In the UP Banner case, UP administration accepted the lack of legislation under which the order to put up banners was issued. One of the three tests of legality was therefore compromised at the outset itself. However, other than arguing that the court lacked jurisdiction to take up the case, it also advanced the argument that “The object of displaying personal details of the individuals is to deter the mischief mongers from causing damage to public and private property. Such "bonafide" action taken by the State must not be interfered by the Court in its public interest litigation jurisdiction.” The court found that this violated the legitimate goal test and the proportionality test as compensation proceedings against the accused had already been initiated in a separate proceeding. Such display of personal information in the public of citizens was available to the State only under specific circumstances under statutes like the CrPC concerning fugitives. Since these persons were not fugitives nor any proceeding of such nature had been initiated against them it was violative of their privacy to publicise their personal information. This was further compounded by the fact that the government had not supplemented its Order with reasons. It failed to justify to the court that there existed no other non-coercive way to fulfil its objective. The court thus directed banners to be removed immediately and held that similar future actions must be under the authority of law.
However, the above cases are stray decisions espousing the culture of justification, which is yet to take firm root within the jurisprudence of administrative law. At present, there is no general duty imposed on the government to provide reasons for administrative decisions in the common law. Such a duty arises only in particular circumstances. What, then, are those circumstances? The courts in the UK addressed this question in the Dental Surgery case, where Sedley, J. identified two categories of cases in which, he suggested, a duty to give reasons would arise:
Subject-matter is an interest so highly regarded by the law (for example, personal liberty), that fairness requires that reasons, at least for particular decisions, be given as of right;
Existence of a “trigger factor” specific to the case in question. Most obviously, if a particular decision appears to be “aberrant”, such that it is prima facie inexplicable, a duty to give reasons will arise.
In India, similar enunciation is yet to come forth. A general duty to supplement every administrative decision with reasons/grounds is lacking and such a duty arises only if the statute under which such decisions are taken demands so. The Indian courts are yet to develop a common theory of what makes a decision justifiable, and what makes it unjustifiable. Etienne Mureinik suggests that “an administrative decision cannot be taken to be justifiable unless (a) the decision-maker has considered all the serious objections to the decision taken and has answers which plausibly meet them; (b) the decision-maker has considered all the serious alternatives to the decision taken, and has discarded them for plausible reasons; and (c) there is a rational connection between premises and conclusion -between the information (evidence and argument) before the decision-maker and the decision taken”
So far we have dealt with the meaning of the culture of justification, which now brings us to the question we posed in the beginning: What does it mean for a democratic country to adopt such a culture and why should it? The need for a culture of justification in the governance of our country has been best exemplified in the evergreen words of Khanna, J. in his dissenting opinion in the ADM Jabalpur case: “…experience should teach us to be most on our guard to protect liberty when the Government’s purposes are beneficent. Men born to freedom are naturally alert to repel invasion of their liberty by evil-minded persons. The greatest danger to liberty lies in insidious encroachment by men of zeal, well-meaning but lacking in due deference for the rule of law.”
A mandatory duty imposed on the government to provide reasons for every administrative decision will ensure greater accountability. The adoption of a culture of justification would then mean securing citizens justice by ensuring that rule of law is observed by the State in its every action, irrespective of whether they are ill-founded or not. Therefore it is imperative that the State moves towards a culture of justification –a culture in which every exercise of power is expected to be justified; in which the leadership given by government rests on the cogency of the case offered in defence of its decisions, not the fear inspired by the force at its command.
* The author is a former LAMP Fellow and a graduate of Gujarat National Law University, Gandhinagar. She is currently preparing for UPSC.
 Mark Elliott, Has the Common Law Duty to Give Reasons Come of Age Yet?, Public Law 1 (Sweet and Maxwell, 2011).  Etienne Mureinik, A Bridge to Where - Introducing the Interim Bill of Rights, 10 S.Afr. J. on Hum. Rts. 31 (1994).
 Dissenting opinion of Justice HR Khanna in Additional District Magistrate v. Shivkant Shukla, 1976 AIR 1207.
 Supra, note 1.
 Supra, note 1.
 Supra, note 2.  Supra, note 3.  Supra, note 2.