Audi Alteram Partem
Audi Alteram Partem
Introduction: -
The principles of natural justice have been developed and followed by the judiciary
to protect the right of the public against the arbitrariness of the administrative
authorities. Natural Justice implies fairness, reasonableness, equity and equality.
The aim of natural justice is to secure justice; to prevent miscarriage of justice and
to give protection to the public against the arbitrariness.
In another landmark case of Maneka Gandhi v. Union of India (1978) 1 SCC 248,
the apex court held that law which allows any administrative authority to take a
decision affecting the rights of the people, without assigning the reason for such
action, cannot be accepted as a procedure, which is just, fair and reasonable, hence
violative of Articles 14 and 21.
Justice P.D. Dinakaran vs. Hon’ble Judges Inquiry Committee AIR 2011 SC 3711
The principles of Natural Justice are as following: -
1. Audi Alteram Partem
2. Nemo judex causa sua
3. Pre and post decisional hearing
The norms of reasonableness of opportunity of hearing vary from body to body and
even case to case relating to the same body. The courts, in order to look into the
reasonableness of the opportunity, must keep in mind the nature of the functions
imposed by the statute in context of the right affected. The civil courts, in India,
are governed in the matter of proceedings, through the Civil Procedure Code and
the criminal courts, by the Criminal Procedure Code as well as the Evidence Act.
But the Adjudicatory Bodies functioning outside the purview of the regular court
hierarchy are not subject to a uniform statute governing their proceedings.
In Mineral Development v. State of Bihar AIR 1960 SC 468, the apex court
observed that the concept of fair hearing is elastic and not susceptible of a precise
and easy definition. The hearing procedures vary from the tribunal, authority to
authority and situation to situation. It is not necessary that the procedures of
hearing must be like that of the proceedings followed by the regular courts.
In the 1970 case of A. K. Kraipak v. Union of India (1969) 2 SCC 262, the
Supreme Court made a statement that even administrative function needs to be
discarded for giving a hearing to the affected party. Before the Kraipak’s case, the
court applied the natural justice to the quasi-judicial functions only. But after the
case, the natural justice could be applied to the administrative functions as well.
Features of Audi Alteram Partem: -
1. Right to notice: -
The term ‘Notice’ originated from the Latin word ‘Notitia’ which means
‘being known’. Thus it connotes the sense of information, intelligence or
knowledge. Notice embodies the rule of fairness and must precede an
adverse order. It should be clear enough to give the party enough
information of the case he has to meet. There should be adequate time for
the party, so that he can prepare for his defence. It is the sine qua non of the
right of hearing.
As per GKN Driveshaft (India) Ltd vs. ITO (2003) 259 ITR 19 (SC) and the
rules of natural justice, the AO is bound to furnish reasons within a
reasonable time so that the assessee could file objections against the same.
4. Right to cross-examination: -
The right to rebut adverse evidence presupposes that the person has been
informed about the evidence against him. Rebuttal can be done either orally
or in written, provided that the statute does not provide otherwise. Cross
examination is a very important weapon to bring out the truth. Section 33 of
the Indian Evidence Act, 1972, provides for the rights of the parties to cross-
examine. The cross-examination of the witnesses is not regarded as an
obligatory part of natural justice. Whether the opportunity of cross
examination is to be given or not depends upon the circumstances of the case
and statute under which hearing is held.
5. Right to counsel: -
For some time the thinking had been that the Counsel should be kept away
from the administrative adjudication, as it saves time and expense. But the
right to be heard would be of little avail if the counsel were not allowed to
appear, as everyone is not articulate enough to present his case.
That vital link is the safeguard against the arbitrariness, passion and
prejudice. The reason is a manifestation of mind of the adjudicator. It is a
toll for judging the validity of the order under challenge. It gives opportunity
to the court to see whether or not the adjudicator has proceeded on the
relevant material and evidence.
In KEC International Ltd. v. B.R. Balakrishnan (2001) 251 ITR 158, the
importance of reasoned orders being passed on the stay applications was
emphasized.
Rajesh Mahajanv.CIT (2012) 249 CTR 28/ 204 Taxman 522 (SC.)
Kum Nirmala Tikana Giripo vs. State of Maharashtra & Ors. 2009
Vol. 111(1) Bom L.R. 0113
ICICI Bank Ltd and Anr. Vs. State of Maharashtra and Anr. 2009 Vol
111 (8) Bom. L.R. 3532
In Charan Lal Sahu vs. UOI (Bhopal Gas Disaster case) is a classical
example of the application of this exception.
2. Legislative function: -
A ground on which hearing may be excluded is that the action of the
Administrative in question is legislative and not administrative in character.
Usually, an order of general nature, and not applying to one or a few
specified persons, is regarded as legislative in nature. Legislative action,
plenary or subordinate, is not subject to the rules of natural justice because
these rules lay down a policy without reference to a particular individual. On
the same logic, principles of natural justice can also be excluded by a
provision of the Constitution also. The Indian Constitution excludes the
principles of natural justice in Art. 22, 31(A), (B), (C) and 31(2) as a matter
of policy. Nevertheless, if the legislative exclusion is arbitrary, unreasonable
and unfair, courts may quash such a provision under Art.14 and 21 of the
Constitution.
In Charan Lal Sahu vs. UOI, the constitutional validity of the Bhopal Gas
Disaster (Processing of Claims) Act, 1985 was involved.
3. Emergency: -
In India, it has been generally acknowledged that in cases of extreme
urgency, where interest of the public would be jeopardizes by the delay or
publicity involved in a hearing, a hearing before condemnation would not be
required by natural justice or in exceptional cases of emergency where
prompt action, preventive or remedial, is needed, the requirement of notice
and hearing may be obviated. Therefore, if the right to be heard will paralyze
the process, law will exclude it.
In Mohinder Singh Gill vs. CEC, whether notice and right to be heard must
been given or not was been laid down before the SC.
4. Confidentiality: -
Exclusion of natural justice can also take place when confidentiality is
demanded and is necessary to be maintained.
5. Impracticability: -
Natural justice can be followed and applied when it is practicable to do so
but in a situation when it is impracticable to apply the principle of natural
justice then it can be excluded.
6. Academic Evaluation: -
Where nature of authority is purely administrative no right of hearing can be
claimed.
In S.A Khan vs. State of Haryana, Mr. Khan an IPS Officer holding the post
of Deputy Inspector General of Haryana; Haryana Govt., was suspended by
the Haryana Government due to various complaints against him.