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Concept of Natural Justice

Natural Justice and Its Principles

The concept of natural justice though not provided in Indian Constitution but it is considered as necessary element for the administration of justice. Natural justice is a concept of common law which has its origin in ‘Jus Natural’ which means a law of nature. In its layman language natural justice means natural sense of what is right and wrong and in its technical sense it is synonymous with fairness. Natural justice has a very wide application in administrative discretion. It aims to prevent arbitrariness and injustice towards the citizens with an act of administrative authorities.

In its initial, the concept of natural justice was confined to the Judicial proceeding only but with the advent of welfare state the powers of administrative authorities have considerably increased as a result it becomes impossible for law to determine the fair procedure to be followed by each authority while adjudicating any disputes or any quasi-judicial proceedings.

Therefore, courts have made a remedy by establishing a norm to be follow by administrative authorities while exercising theirs powers and performing their functions. Administrative authorities being a law executer must provide benefits to the people but such objective cannot be fulfill in absence of effective control on the powers given to them.

Court in order to prevent abuse of power and to check on their limits has evolved the principles of natural justice as important safeguards against injustice. The object of natural justice is to secure justice to the citizens and prevent contempt of justice. Decisions which violate the natural justice shall stand null and void. [i]

Principles of Natural Justice

According to traditional English law natural justice classified into two principles i.e
  1. Nemo judex in causa sua (rule against bias)
  2. Audi alteram partem (rule of fair hearing)

Nemo judex causa in sua means rule against bias. It is the first principles of natural justice which says no man shall be judge in his own cause or a deciding authority must be impartial and neutral while deciding any case. Thus the principle signify that in a circumstances where a judge or deciding authority is suspected to be bias and partial then he/she shall be disqualify from determining any case before them. It formulates that justice should not only be done but seen to be done. Proceedings before any adjudicating authority must be according to the principles of natural justice.

Where it is found that a judge who is deciding any dispute has its own interest or some outcome derived from such case then the decision given by the authority shall not be execute or it remains void. It is said that impartiality is the best characteristics for good administration. Human nature is such that a person ordinarily cannot take an objective decision in a case when he himself found an interest, as very rarely can person take decision against his own interest. A person can apply his mind effectively when he follows impartiality. The rule against bias thus avoids possibility of partial decisions. It also ensures public confidence in legal system of a country. [ii]

Different types of Bias

a) Personal Bias- This is a most common bias that arises out of certain relationship between decision making authority and the parties. Here a judge may be a friend, relative or business associate of a party. He may have an enmity or rivalry against one of the party. In view of these factors there is likelihood that judge may be biased towards one party or prejudiced toward other.

In Cottle vs Cottle, the chairman of the bench was a friend of the wife’s family who had instituted matrimonial proceedings against her husband. The wife had told the husband that chairman would decide the case in her favor. The divisional court ordered rehearing. It later turned out that the chairman was a friend of wife’s family.

In Mineral Development Corporation limited vs State of Bihar here the petitioner were granted mining lease for 99 years in 1947. In 1953, the Secretary of revenue board issued a notice to the petitioners to show cause within 15 days as to why the license should not be cancelled for violation by the petitioner of section 10, 12 and 14 of Mining Act.

The petitioner submitted a written reply denying the allegations. However, two years later, Government quashed the license. The petitioner brought an action against the minister passing this order on the behalf of government, on the ground that, the petitioner in 1952 opposed the minister in general election. Therefore, on the account of political rivalry, the minister passed such an order, and hence order was suffered from personal bias. Supreme Court found the allegation to be true and thus quashed the said order.[iii]

Same in case of Baidyanath Mohapatra vs State of Orissa, [iv] according to the recommendation of the review committee, a government servant was prematurely retired at the age of 50 years. One of the members of review committee who recommended premature retirement of the appellant happened to be the chairman of the tribunal and confirmed the order of premature retirement. The Supreme Court held that the order of the Tribunal was vitiated because the member who had administratively taken a decision against the appellant considered the matter judicially as Chairman of the Tribunal, thereby he acted as a judge in his own cause.

b) Pecuniary bias- Pecuniary bias arises when the adjudicator has monetary or financial interest in the subject matter of the dispute. Least pecuniary interest in the subject matter of litigation will disqualify any person from acting as a judge.

c) In Jeejeebhoy vs Collector,[v] Chief Justice reconstituted the bench when it was found that one of the members of the bench was a member of cooperative society for which the land had been acquired.

Dimes vs Grand Junction Canal, this case regarded as a classic example of pecuniary bias. In this case a public limited company filed a suit against a land owner in matter largely involving the interest of the company. The Lord Chancellor who was a shareholder in the company decided the case and gave relief to the company. His decision was quashed by the House of Lords because there was a pecuniary interest of the Lord Chancellor in the Company.

In India also the same principle is accepted. It is obvious that pecuniary interest however small it may be in a subject matter of the proceedings wholly disqualify a member from acting as a judge.

d) Subject matter bias- Subject matter simply means the “issue in question” or “the issue in controversy” or “issue before the Judge”. Bias as to subject matter may arise when the Judge has general interest in the subject matter in dispute. It may arise also when the deciding authority is directly or otherwise involved in subject matter of the case.

In Muralidhar vs Kadam Singh, [vi] the court refused to quash the decision of Election Tribunal on the ground that the wife of the chairman was a member of the Congress party whose candidate the petitioner defeated.

Test for bias

Cases from different jurisdiction currently apply two tests for apparent bias i.e
“The reasonable suspicion of bias” test and “the real likelihood of bias” test. These two tests apply in case of personal bias. In order to challenge administrative action successfully on the ground of personal bias, it is necessary to prove that there is a reasonable suspicion of bias or a real likelihood of bias. The former test look mainly to the outward appearance that means justice must be seen to be done. The rule for the judges of all kinds was that they must be free from even unreasonable suspicion of bias. The real likelihood of bias mainly focuses on the courts own evaluation of the probabilities.

Audi alteram partem (rule of fair hearing)

It means “hear the other side” or “let the other side heard as well”. This is the second most fundamental rule of natural justice that says no one should be condemned unheard. In a circumstances where a person against whom any action is sought to be taken and his right or interest is being affected, shall be given an equal opportunity of being heard and defend himself.

It gives right the party to respond to the evidence against them and to choose legal representative of their own choice. Any adjudicating authorities while deciding a dispute between parties the principles of natural justice forms a fundamental fair procedure among the parties. It is the duty of every person or body exercising judicial or quasi-judicial functions to act in good faith and to listen fairly both the sides before passing any order.

No party will made to suffer in person without giving not only fair opportunity of being heard but to correct any relevant statement made, which is prejudicial to any of them.[vii] While deciding any case fairly it is not mandatory for any decision making authority to follow the same procedure as that followed by a Court.

In case if the Legislature specifically authorizes an administrative authority to proceed without giving an opportunity of heard, then except in case of recognised exceptions, the law would be violative of the principles of fair hearing which is now read into Articles 14 and 21 of the Constitution. The sole purpose of rule of fair hearing as to the Apex Court was to avoid the failure of justice. Thus, the essence of this principle is “the right of fair hearing” or “the right to be heard”. Therefore any decisions which violate the principle of audi alteram partem such can be quashed by court as against the principles of natural justice.

In Maneka Gandhi vs Union of India, [viii] the passport of the petitioner was impounded by the Government of India in public interest. No opportunity was afforded to the petitioner before taking the impugned action. The Supreme Court held that the order was violative of principles of Natural justice.

Components of fair hearing

There are some essential requirements in order to constitute the principle of fair hearing. These are as follow:

A) Notice:

he term notice is derived from the Latin word “notifia” which means “being known”. It thus means knowledge of circumstances or to make something known, of what a man was or might be ignorant of before. In order to constitute a legal proceeding against any person the first requirement of fair hearing is to serve notice to the affected person to show cause against the proposed action and seek his explanation. Hearing starts with the issuance of notice to the affected person.
Any order passed without giving notice to the person is against the principles of natural justice and is void ab initio. [ix]

Even if the Statue does not provide any provision about giving of notice, and if such order adversely affects the rights of an individual, in such cases also the notice is required to be given. A notice must be adequate and contain:
  • the time, place and nature of hearing
  • a statement of specific charges or grounds and proposed action which the person has to meet
  • must be clear and unambiguous
  • must afford the party sufficient time, to prepare his case
  • not only provide the sufficient information relating to the case, but he ----- must also be informed of the penalty proposed to be imposed in case of his failure to meet the case against him
  • legal authority under which hearing is to be held

The manner in which the notice is to be served is prescribed under statute. E.g Negotiable Instrument Act, 1881 requires that if a cheque is dishonored proper notice must be given by post or courier. Personal information held not proper.

In K.A Abdul Khader vs Dy. Director, [x]the Statutory Rule prescribed the following mode to serve notice:
  1. By delivering to him or
  2. Sending it to him by registered post (it may returned undelivered)
  3. If the above two modes does not fulfill then by affixing it on the outer door of the residence.
The mode of giving notice is a procedural matter. If the notice is to be given to a large class of persons, who are educated, it may be given in newspaper. Individual notice is this case is not insisted.

In a case of Punjab National Bank vs All India Bank Employees Federation, [xi] the notice contained certain charges but the penalty was imposed on the charges which were not mentioned in the notice. Therefore the Court held notice was improper, and eventually the imposition of penalty was held invalid.

A vague or imprecise notice does not afford the party the desired reasonable opportunity. A notice would be vague if it is based on no material or if it is vitiated by non-application of mind.
In Suresh Chandra Verma (Dr.) vs Chancellor Nagpur University, [xii] the employment notice issued by the University, invited applications for the posts of Professor, Readers and Lecturers without indicating the particular posts reserved subject wise. The notice was held to be bad in law since it only mentioned total number of reserved posts without mentioning the particular posts reserved subject wise.

Exceptions to Notice
In certain circumstances the requirement as to giving notice to the concerned person may not be said to be mandatory.

Some of such cases may be:
  1. When the affected person suo motto makes the representation without receiving the notice.
  2. Where the knowledge of the matter in dispute is imputable to the concerned person.
  3. Where no prejudice caused to the party

B) Right to know the evidence against him:

The principle of fair hearing requires that there must be full disclosure of evidential facts and of all documents. It means to know the materials on which the authority is going to make a decision. It is a part of right to defend oneself. The general principle is that the adjudicating authority must base its decision on the material known to the parties. No evidence can be taken into consideration which has not material known to the party concerned. It would be violative of natural justice to take evidence behind the back of the concerned person.

In S.P Paul vs Calcutta University, [xiii] the Calcutta High Court held that there was violation of natural justice in so far as evidence of witnesses had been heard behinds the candidate’s back which was not known to him.

The Supreme Court in Hiranath Misra vs Rajendra Medical College, [xiv] in this case an enquiry was held against some male students on the charge of entering girls’ hostel and indulging in indecent behavior towards some girls. The Enquiry Committee recorded the statement s of the complainant girl but in the absence the appellants.

The Committee found them guilty and therefore an expulsion order was served on them. The said order was challenged because evidence was taken at their back. The Court held that there was no denial of natural justice as the gist of the evidence was brought to their notice and they were provided with an opportunity to rebut it. The court observed that the girls would not have ventured to make the statements in presence of the appellants except at a great risk of retaliation and harassment.

C) Cross Examination:

Cross examination is one of the effective methods of establishing truth and exposing falsehood. While in administrative adjudications it is not necessarily mean that the right of cross examination of witness should be given to the person concerned. It depends upon the facts and circumstances of the case i.e unless the circumstances demand that in the absence of the right to cross examination, the party cannot put up an effective defence in his favor.

In State of Kerala vs K.T Shaduli, [xv] the respondent-assessee filed return on the basis of his book of account, which was later appeared to be incorrect by Sales Tax Officer. It was said that certain sales appearing in the books of accounts of wholesale dealers were not mentioned in the account books of the respondent.

He applied to the Sales Tax Officer for giving Opportunity to cross examine wholesale dealers which was rejected by him. Holding that the denial of dealers request to cross examine wholesale dealers was denial of fair hearing, the Supreme Court held that it was only through cross examination that the assesse could establish that what was mentioned in his account books was correct and that mentioned in the wholesale dealers was wrong.

Where in circumstances evidence is given viva voce against a person, he must have opportunity to hear it and to put the witnesses in cross examination. Refusal to allow such cross examination would amount to violation of principles of natural justice.

State of J & K vs Bakshi Ghulam Mohammed ,[xvi] In this case the Government of Jammu and Kashmir appointed a Commission of Inquiry to inquire into the charges of corruption and maladministration against the ex-chief minister of the State. The request of the respondent to cross examine the witnesses who had filed affidavits in support of allegations against him was denied.

An appeal was filed before Supreme Court against the decision of the commission on the ground that denial of the opportunity to cross examined the witnesses violates the rule of fair hearing. Disallowing the challenge made by the respondent, the Supreme Court observed that where, no oral hearing is held and only when statements are called for from affected party, there is no right to cross examining the witnesses.

D) Representation by a lawyer:

The fourth requirement as to the fair hearing is legal representation or representation by a lawyer. Everyone should be given a chance to represent himself or herself in the court of law through lawyer of their own choice.
In administrative proceedings the right of representation by a lawyer is not ordinarily considered as an important part of natural justice [xvii] and as such is not claimable as a matter of right, unless the said right is conferred by the statute.

In cases where statute is silent, the courts have in certain situations recognized that some professional assistance must be given to the party to make his right to defend himself meaningful. Such situation may arise when the affected party is illiterate or a question of law is involved or the matter is complicated or technical or where expert evidence is on record.

In M.H Hoskot vs State of Maharashtra, [xviii] the apex court ruled that right to free legal aid at the cost of the state to an accused, who could not afford legal services by reasons of poverty, indigence or inability to communicate the situation, was part of fair, just and reasonable procedure implicit in Article 21. Free legal aid to the poor person has been declared to be a state’s duty and not governmental charity. This right not only arises at the commencement of trial but also attaches when he is for the first time produced before the Magistrate.

Article 22(3)(b) of the Constitution expressly denies the right to be represented by a legal practitioner to a detenu in preventive detention proceedings. [xix]

In Board of Trustees of the Port of Bombay vs Dilip Kumar, a case which involved a disciplinary proceedings against an employee of a statutory authority. It was held that it will be violation of the rule of natural justice if the employer is represented by a presenting officer who is legally trained before the enquiry officer while the employer denies such a facility to the employee.

E) Right to know evidence:

In the matter of administrative adjudication, the party must have a right to know the materials upon which the authority is going to make a decision. No evidence should be taken at the back of other party. There are so many judicial or quasi-judicial pronouncements where non-disclosure of evidence to the affected person has been held to be fatal to hearing proceedings. Adjudicating authority must base its decisions on the material known to the parties. It would be violative of natural justice to take evidence behind the back of the concerned person.

In S.P Paul vs Calcutta University, a candidate was debarred from appearing in the B.A examination for two years because he had use unfair means at the examination. The Calcutta High Court held that there was a violation of natural justice in so far as evidence of witnesses had been heard behind the candidate’s back which was not known to him. The main thrust of the case is that whatever information is obtained by the administrative authority must be disclosed to the other part and an opportunity to rebut it must be given.

Sometimes before initiating an action against an individual, a preliminary inquiry may be made into the matter. The question is whether such report should be known to the affected person. In T.V.R Radhakrishna vs State of Tamil Nadu, the collector and director of rural development submitted reports to the government about the working of a Panchayat. Then government issued notice under relevant statute calling upon panchayat to show cause why it should not be dissolved. The order was challenged because the copies of the reports had not been given to the petitioners. The Supreme Court held that natural justice was not violated as the substance of the reports had been given in the show cause notice which was issued to the panchayat.

When Natural can be claimed?

Natural justice can be claimed where the proceedings is judicial or quasi-judicial like panchayat and tribunals etc. It envisaged the concept of fairness, just and basic moral principles. In a present welfare state with complex socio economics problems the functions of the government has been increase and in the same manner administrative authorities has acquired vast powers which might affect private rights without any adequate safeguards or some protection. Due to this factor procedural fairness is regarded as an integral part of administrative authorities.

Reasoned Decisions:
A reasoned decision means a decision which must contain reasons in support of it. Natural Justice required that the party has a right to know not only the decision but also the reasons. This is not a universally established law although it might provide in statute. Where the duty is required by the statute then the authority is bound to give reasoned decisions in all cases to which the provision applies. But in absence of statutory requirement, the courts advise the judicial or quasi-judicial bodies to assign reasons, so that it justify the order. It is called as speaking orders.

Basically, it has three grounds on which it relies:
  1. The aggrieved party has the chance to demonstrate before the appellate and revisional court that what was the reason which makes the authority to reject it.
  2. It is a satisfactory part of the party against whom the decision is made.
  3. The responsibility to record reasons works as obstacles against arbitrary action by the judicial power vested in the executive authority.

The principles of natural justice have been adopted by the judiciary to protect public rights against the arbitrary decision by the administrative authorities. At all the stages of the proceedings the main motive of the principles of natural justice is to prevent miscarriage of justice. One must keep in mind that in order to held the decision of the adjudicating authorities as valid principles of natural justice is equally important in procedure.

In India the principles of natural justice are provided in Article 14 and 21 of the Constitution. With the introduction of concept of substantive and procedural due process in Article 21, all that fairness which is included in the principles of natural justice can be read into article 21. The violation of principles natural justice results in arbitrariness and such decision is said to be void or voidable.

[i] Nature and Concept of Administrative law, Prof Narender Kumar.
[ii] Administrative Law, Dr. J.J.R Upadhyaya.
[iii] AIR 1960 SC 468.
[iv] AIR 1988 SC 2218.
[v] AIR 1965 SC 1096.
[vi] AIR 1964 MB 111.
[vii] Painter vs. Livorpool Oil Light Co. (1836) A & E. 433 (448-49).
[viii] AIR 1978 SC 597.
[ix] Municipal Board Pushkar vs. State Transport Authority, AIR 1965 SC 458.
[x] AIR 1976 Mad. 233.
[xi] AIR 1960 SC 16.
[xii] AIR 1990 SC 2023.
[xiii] AIR 1970 Cal. 282.
[xiv] AIR 1973 SC 1260.
[xv] AIR 1977 SC 1627.
[xvi] AIR 1967 SC 122.
[xvii] Kalindi vs. Tata Locomotives, AIR 1960 SC 914; Mohinder Singh Gill vs. Chief Election Commissioner, AIR 1978 SC 851.
[xviii] AIR 1978 SC 1548.
[xix] Article 22 of the Constitution.

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