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Right To Be Heard

The 'right to be heard' originates from the Latin maxim "audi alteram partem" which means 'no one should be condemned unheard. The right to be heard is considered sine qua non of every civilized society. This signifies that even if the authority already knows everything and the person has nothing more to tell, even then this rule is attracted unless the application of this rule would be a mere empty formality.

Natural justice may mean simply 'the natural sense of what is right and wrong' and even in its technical sense it is now often equated with 'fairness'. It is believed that if the decision-making authority is apprised of all relevant facts and issues involved in a dispute, it will come to the right decision, for it will be difficult for the authority, unless it is completely perverse, to take a decision ignoring the material on record. Thus, giving a hearing to a person before making a decision affecting him, leads to good decisions by the Administration.

Origin
The horizons of the right of hearing have been constantly expanding since 1962. In that year, in Ghanshyan[1], the Supreme Court embarked on an expansionist course in this respect; the Court recognized the nature of the right affected and the power conferred on the authority as controlling the question of hearing to the party concerned.

Since 1970, a further expansion in the right of hearing to the person affected by the administrative process has been consummated by the courts adopting the strategy. It was in the trend-setting pronouncement by the Supreme Court in A.K. Kraipak v. Union of India[2] that the new liberal trend in judicial thinking was given vent. Before Kraipak, the distinction between administrative and quasi-judicial functions used to be a major element in deciding the question of entitlement to the right to hearing. Kraipak fundamentally changed this approach.

The Supreme Court now categorically propounded the view that the distinction between quasi-judicial and administrative ought to be discarded for a hearing being given to the affected party.

In Maneka Gandhi v. Union of India[3], The Supreme Court ruled that the consequences of impounding a passport would be to impair the constitutional right (under Art. 21 of the Constitution) of the passport holder to go abroad. The authority can exercise its power only on certain grounds as set out in S. 10 (3).

The authority must apply its mind to the facts and circumstances of a given case and decide whether any ground exists to justify such impounding and the authority is required to record in writing its reasons for making the order. An appeal lies from the authority's decision to the Central Government. In these circumstances, the Court ruled that the power to impound a passport is quasi-judicial in nature, and rules of natural justice would apply in exercising the power.

Right to be heard as part of the principle of natural justice
The rules of natural justice have assumed so much significance in the modern administrative process that the Supreme Court characterized them as "foundational and fundamental concepts" which are "part of the legal and judicial procedures."

Natural justice comprises of two components:
  1. Doctrine of audi alteram partem.
  2. Doctrine of bias.
Principles of natural justice are required to be observed by a Court or tribunal before a decision is rendered involving civil consequences. Their application may be subject to the provisions of a statute or statutory rule. Hearing before a decision is the sine qua non of such a proceeding. Therefore, to superimpose the requirement of hearing in an administrative proceeding, the courts would characterize it as quasi-judicial. Quasi-judicial thus came to be linked with natural justice; both of them became concomitant concepts. If a proceeding before an administrator is regarded as quasi-judicial, giving a hearing to the concerned person becomes inevitable.

Situations, where the Right to be heard, can be claimed as a basic right:

  1. Lis Inter Partes:

    It is usual to characterize a function as quasi-judicial when there are lis interpartes, and administrative authority is required to adjudicate upon the lis, that is, a situation involving two or more parties putting forth claims inconsistent with each other, and an adjudicatory authority deciding the matter. Prima facie, in such cases the authority will be regarded as acting in a quasi-judicial manner. This is on the analogy of courts whose function is to decide disputes between the litigants. The situation envisaged here is something like a triangle, with two contestants claiming against each other and an authority adjudicating upon the dispute. Ordinarily, such disputes are decided by the courts, but due to some reasons, some such disputes are taken out of the judicial purview and handed over to tribunals or other adjudicatory bodies for decision
     
  2. Authority v. person:

    In a situation where an authority itself sits as a decision-maker in a dispute between itself and a private person, it may not always be easy to decide in a particular factual situation whether the authority concerned ought to give a hearing or not to the person concerned. Much depends upon the nature of the function in question and its impact on the concerned person. If in a matter, the authority concerned has to base its decision on the facts determined by it, and the decision of the authority affects the concerned person adversely, the judicial attitude generally is to hold the function of the authority as quasi-judicial and to insist that the authority gives a hearing to the concerned person before deciding upon the matter. 
  3. Disciplinary action against a student:

    Since any disciplinary action harms the career of the student concerned, the courts have invariably taken the view that before the concerned authority takes disciplinary action against a student, such as expulsion from the institution or cancellation of his examination results, the student concerned must be given a hearing by the concerned disciplinary authority. In Board of High School v. Ghanshyam[4], the examination result of the respondent candidate was canceled, and he was debarred from appearing in the next year's examination, for using unfair means in the examination. The examination committee of the board which canceled the results afforded no opportunity to the respondent to rebut the allegations against him. The Supreme Court held that the function discharged by the committee was quasi-judicial for, in the very nature of things, the committee had no personal knowledge of the matter and had to depend upon the material placed before it.
     
  4. Dismissal from service:

    In the matter of dismissal from service of a government servant, Art. 311 (2) of the Constitution comes into play according to which, before a civil servant is "dismissed, removed or reduced in rank," there should be an inquiry in which he has been informed of the charges against him and given a "reasonable opportunity" of being heard in respect of these charges. The "reasonable opportunity" envisaged in Art. 311 (2) has to be in accordance with the principles of natural justice.
     
  5. Regulation of trade and commerce:

    In Kesava Mills Ltd. v. Union of India[5], the Supreme Court held that the government needed to observe principles of natural justice before passing an order of take-over under S. 18-A (b). Under S. 18-AA, the government can take over an undertaking in certain circumstances (e.g. fall in production due to reckless action on the part of management, etc.) without any investigation if immediate preventive action was necessary
     
  6. Licensing:

    A very commonly used administrative technique to regulate any activity is licensing. Questions as to hearing arise in the area of licensing at several stages. The normal judicial approach is to treat the cancellation of a license (trading, business, or any other license) as a quasi-judicial function because it entails civil as well as pecuniary consequences as a business cannot be carried on without a license. 
  7. Property rights:

    Usually, natural justice must be afforded to a person whose property rights are adversely affected by any action taken by the Administration, e.g., demolition of a house, etc. 
  8. Discretionary power:

    It is of the essence of natural justice that it should be observed generally in the exercise of discretionary power. The mere fact that the discretion conferred is wide is no reason for weakening this principle.


Elements of the right to be heard

Notice:

The hearing starts with the notice by the authority concerned to the affected person. Consequently, notice may be taken as the starting point of hearing. Unless a person knows the case against him, he cannot defend himself. Therefore, before the proceedings start, the authority concerned is required to give the affected person the notice of the case against him. The proceedings started without giving notice to the affected party, which would violate the principles of natural justice. The notice is required to be served on the concerned person properly. However, the omission to serve notice would not be fatal if the notice has not been served on the concerned person on account of his own fault.

Hearing:

An important concept in Administrative law is that of natural justice or the right to a fair hearing. The right to hearing becomes an important safeguard against any abuse, or arbitrary or wrong use, of its powers by the administration in several ways. There is no readymade formula to judge this question and every case is to be considered on its own merits.

Cross-examination:

Whether it includes the right to cross-examination or not depends upon the provisions of the statute under which the hearing is being held and the facts and circumstances of each case. Where a domestic inquiry is made by the employees, the right of cross-examination is regarded as an essential part of natural justice. In the case of disciplinary proceedings initiated by the Government against the civil servants, the right to cross-examination is not taken orally and inquiry is only a fact finding one.

Legal Representation:

Ordinarily, the representation through a lawyer in the administrative adjudication is not considered an indispensable part of a fair hearing. However, in certain situations, denial of the right to legal representation amounts to a violation of natural justice. Thus where the case involves a question of law or matter which is complicated and technical or where the person is illiterate or expert evidence is on record or the prosecution is conducted by legally trained persons, the denial of legal representation will amount to a violation of natural justice.

Institutional decision:

In ordinary judicial proceedings, the person who hears must decide. In the judicial proceedings, thus the decision is the decision of the specific authority. But in many of the administrative proceedings the decision is not of one man or one authority i.e. it is not the personal decision of any designated officer individually. It is treated as the decision of the concerned department. Such decision is called institutional decisions. In such a decision often one person hears and another person decides. In such a decision there may be division in the decision-making process as one person may hear and another person may decide.

Post Decisional hearing:

A post-decisional hearing may be taken to mean hearing after the decision sometimes public interest demands immediate action and it is not found practicable to afford a hearing before the decision or order. In such a situation the Supreme Court insists on a hearing after the decision or order. In short, in situations where a prior hearing is dispensed with on the ground of public interest or expediency, or emergency the Supreme Court insists on the post decisional hearing.

Reasoned decision (Speaking order):

Reasoned decision may be taken to mean a decision that contains reason in its support. When the adjudicator's bodies give reasons in support of their decisions, the decisions are treated as reasoned decisions. A decision, thus supported by reasons is called reasoned decision. It is also called speaking order. In such conditions, the order speaks for itself or it tells its own story. The reasoned decision introduces fairness in the administrative powers. It excludes or at least minimizes arbitrariness.


Exceptions to the rule of right to be heard as a principle of natural justice

Though the normal rule is that a person who is affected by administrative action is entitled to claim natural justice, that requirement may be excluded under certain exceptional circumstances.

Statutory Exclusion:

The principle of natural justice may be excluded by the statutory provision. Where the statute expressly provides for the observance of the principles of natural justice, the provision is treated as mandatory and the authority is bound by it. Where the statute is silent as to the observance of the principle of natural justice, such silence is taken to imply the observance thereto. However, the principles of natural justice are not incapable of exclusion.

Emergency:

In exceptional cases of urgency or emergency where prompt and preventive action has required the principle of natural justice need not be observed. Thus, the pre-decisional hearing may be excluded where prompt action is required to be taken in the interest of public safety or public morality. Thus, in such a situation dining social necessity requires exclusion of the pre-decisional hearing. However, the determination of the situation requiring the exclusion of the rules of natural justice by the administrative authorities is not final and the court may review such determination.

Public Interest:

The requirement of notice and hearing may be excluded where prompt action is to be taken in the interest of public safety, public health, and public morality. In case of pulling down a property to extinguish the fire, destruction of unwholesome food, etc., action has to be taken without giving the opportunity of hearing.

Interim disciplinary action:

The rules of natural justice are not attracted in the case of interim disciplinary action. For example, the order of suspension of an employee pending an inquiry against him is not final but an interim order, and the application of the rules of natural justice are not attracted in the case of such order.

Academic evolution:

Where a student is removed from an educational institution on the grounds of unsatisfactory academic performance, the requirement of a pre-decisional hearing is excluded. The Supreme Court has made it clear that if the competent academic authority assesses the work of a student over a while and thereafter declares his work unsatisfactory the rule of natural justice may be excluded but this exclusion does not apply in the case of disciplinary matters.

Impracticability:

Where the authority deals with a large number of people, it is not practicable to give all of them an opportunity of being heard, and therefore in such conditions the court does not insist on the observance of the rules of natural justice.

National Security:

The President of India or the Governor of a State, as the case may be, has been empowered by the Constitution under Article 311 to deny the right of being heard to a person employed in civil capacity under the Union or a State if satisfied that it is the right thing to do in the interest of national security.

End-Notes:
  1. Board of High School v. Ghanshyam, AIR 1962 1110
  2. A.K. Kraipak v. Union of India, AIR 1970 SC 150.
  3. Maneka Gandhi v. Union of India, AIR 1978 SC 597.
  4. Supra note 4.
  5. Kesava Mills Ltd. v. Union of India, AIR 1973 SC 389.


Award Winning Article Is Written By: Ms.Isha Rathi

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