Exceptions To The Principles Of Natural Justice

Now it is well established preposition of Law that the Principles of Natural Justice supplements
the enacted statute with necessary implications, accordingly administrative authorities performing
public functions are generally required to adopt “fair procedure” and in relation to a variety of
different circumstances, we considered the content of the requirements of procedural fairness. A
person may also have legitimate expectation of fair hearing or procedural fairness/treatment but as
Natural Justice Principles is to be invoked in doing justice, where their observance leads to injustice
they may be disregarded. There are several well established limitations on Principles of Natural
Justice. Existence of certain circumstances deprives the individual from availing the benefit of
principles of natural justices, authors in this research work undertakes to cover the circumstances in
which judiciary admitted the exceptions to the observance of Principles of Natural Justice.

Principles of Natural Justice are ultimately weighed in the balance of fairness and hence the Courts
have been circumspect in extending principles of natural justice to situations where it would cause
more injustice rather than justice so, where a right to be fairly heard has been denied, it is more
probably a case of bad decision than of true exception, then principles of natural justice can be
discarded. Application of the principles of natural justice can be excluded either expressly or by
necessary implication, subject to the provisions of Article 14 and 21 of the constitution. However,
along with constitutional limitations in India Common Law exception are also preferred.

2. Common Law Exceptions to the Principles of Natural Justice:

The requirements of procedural fairness are on first appearance applicable to Judicial, Quasi-
Judicial and Administrative Proceedings, however, the decision maker may be exempt from all or
some of the procedural safeguards that would otherwise be required. Several factors may be
identified as capable of excluding the normal procedural fairness requirements in Common Law
Courts are:

(i) Exclusion in case of emergency,

(ii) Express statutory exclusion,
(iii) Where discloser would be prejudicial to public interests
(iv) Where prompt action is needed,
(v) Where it is impracticable to hold hearing or appeal,
(vi) Exclusion in case of purely administrative matters.
(vii) Where no right of person is infringed,
(viii) The procedural defect would have made no difference to the outcome.
(ix) Exclusion on the ground of ‘no fault’ decision maker. We shall examine them in turn.

2. (i) Exclusion in cases of 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.

Therefore in situations where dangerous buildings is to be demolished, or a company has to wound

up to save depositors or there is a eminent danger to peace or trade dangerous to society is to
prohibited, dire social necessity requires exclusion of elaborate process of fair hearing. In the same
manner where power theft was detected by officials, immediate disconnection of supply is not
violative principles of Natural Justice.
The emergency power (defense) Act, 1934 authorized the Government, to make regulation under
the Act “For the detention of a person whose detention appears to the secretary of the state to be
expedient in the interest of public safety or the Defense of the Realm”. Repealing the contention that
the legislation which encroached upon the liberty of the subject should be construed in favour of the
subject, the House of Lords held that the legislation was war measure relating to the safety of the
nation itself which required a drastic “invasion of the liberty of the subject”, the Lord Maugham
Observed that Under the Statute and Regulation made there under the Secretary of the State was
under no duty to give prior notice or opportunity to be heard. In the same manner in India also similar
exclusion were created in emergency legislations, which is dealt under separate heading in
succeeding part of this paper.

In cases of urgency or where the giving prior notice would defeat the very object the action, where
the function is purely administrative in nature and the principle of prior hearing as required by natural
justice does not apply, but prior hearing must be given where an administrative action will result in
civil consequences to the party to the dispute.

In Swadeshi Cotton mills v. Union of India the Court held that the word “immediate” in Section 18AA
of the Industries (Development and Regulation) Act cannot stand in the way of the application of the
rules of the Natural Justice. U/Sec 18AA of above said Act the Central Government can take over an
industry after investigation, but U/Sec 18AA(1) the Govt. can take over without any notice and
hearing on the ground that production has been or is likely to be affected and hence immediate
action is necessary the question was whether Sec 18AA(1) excludes the principles of Natural Justice
the Govt. took the plea that since Section 18AA clause (1) relates to emergent situations, therefore
Principles of Natural Justice are excluded. Furthermore it also contended that since Section 18A
provides for hearing and Sec 18AA(1) does not provides for conduct of hearing, consequentially
parliament has excluded hearing therein, Court rejecting these arguments held that even in
emergency situations the competing claims of ‘hurry and hearing’ are to be reconciled, no matter the
application of the Audi Alterm Partem rule at the pre-decisional stage may be a ‘short measure of fair
hearing adjusted’, attuned and tailored to exigency of the situation.

2. (ii) Express Statutory Exclusion:

As we already analyzed in Liversidge v. Anderson exclusion can be made through “clearly and
expressly” made Act of the parliament. An Act of Parliament may dispense with the requirements of
fair procedures where they would otherwise be required. A statute may, for example, permit the
exercise of powers without notice. In the interests of administrative efficiency and expedition, the
requirements of fairness have been excluded by statutory provisions which, for example, enable
decision makers to decline to conduct an oral hearing, or to entertain particular kinds of
representations and objections.

However, any statutory exclusion of procedural fairness will be construed strictly. Thus, where a
statutory provision did not expressly or by necessary implication exclude the right to legal
professional’s privilege, the provision was interpreted not to do so. Subordinate legislation purporting
to exclude a hearing or to hold a hearing or conduct an inquiry is conferred by a statute, a refusal to
hold the inquiry may constitute a denial of natural justice if fairness plainly demands that a hearing
be held. Ex .p Gurdian Newspaper Ltd (Written Submissions) in this case Court held that, an express
statutory power to proceed without a hearing will not necessarily exclude the right to make informal
or written representations, similarly, an express statutory provision excluding a duty to give reasons
has been held not to exclude a duty to disclose the substance of the case so that an applicant for
citizenship could make representation.

In a number of cases, the view has been expressed judicially that there is no question of invocation
of natural justice, or hearing the affected party, when legislative action of an authority is brought
under the scrutiny of the Courts.

In Defense of India Act, 1962 Rule 29 and 30 of the Act empowers the executive to make orders for
externment for the maintenance of public order. No hearing was necessary for the purpose of
making such Order to direct the removal, detention, externment, interment and the like of any
person, if it is ‘satisfied’ that such order was necessary for the defense or efficient conduct of military
operations and maintenance of Public order.

Also in Laxmi Khandsari v. State of U.P in this case SC held that notification of UP Govt. Sugar
Cane (Control) Order, 1966 directing that no power-crusher of Khandsari unit in reserved area of a
Sugar mill will work during the period Oct 9 to Dec 1st , 1980 is legislative in character hence
Principle of Natural Justice attracted. In the same manner, Charanlal Shahu v. U.O.I, in this case the
constitutionality of the Bhopal Gas leak disaster (processing of claims) Act, 1985 was involved. The
SC held: “for legislation by parliament no principles of natural justice is attracted, provided such
legislation is within the competence of legislature”.

In Union of India v. Cynamide India Ltd. SC held that no principles of Natural Justice had been
violated when the Govt. issued a notification fixing the Prices of certain drugs. The Court reasoned
that since the notification showed from a legislative act and not an administrative one so Principles of
Natural Justice would not applied.

There are however, cases where the SC has adopted a somewhat liberal approach in the matter of
procedural safeguards to the individual affected even tough prima facie administrative function could
be characterized legislative in character. The judicial strategy in such cases is to hold the action of
administration in question as administrative. Example, in State of Assam v. Bharat Kalabhandar, a
notification issued by the executive under the defense of India rules 1962 notified certain
employments as essential “for securing the public safety and for maintaining the supplies and
services necessary to the life of the community, another notification relating to Order of payment of
specific cost of living allowance to all workers drawing pay up to Rs 400 per month and also to
worker employed on daily wages in essential services. No question about hearing in the case of the
former notification was raised. However, about the later notification, which prima facie a large
number of persons and could thus be characterized as legislative. The SC took the view that it was
necessary to consult the interest affected before its issue as its effect was to disturb settled industrial
relation whether based on contract or industrial awards. Tough, on account of the emergency the
Court refrained from holding the order as quasi-judicial, yet the whole approach of the Court shows
that it would have held so had the emergency not been there.

Where public policy demands that certain information in possession of state shall not be disclosed,
as it is in the interest of security of the state. In Malak Singh v. State of Punjab and Haryana SC held
that the maintenance of Surveillance Register by the Police is confidential document neither the
person whose name is entered in the Register nor the any other member of the public can have
excess to it. Furthermore, the Court observed that observance of the principles of Natural justice in
such a situation may defeat the very purpose of surveillance and there is every possibility of the
ends of justice being defeated instead of being served.
In S.P. Gupta v. U.O.I, where the SC held that no opportunity of being heard can be given to an
additional judge of HC before his name is dropped from being confirmed it may be pointed out that in
a country like India surveillance may provide a very serious constraint on the liberty of the people,
therefore the maintenance of the surveillance Register cannot be so utterly administrative and non-
judicial that it is difficult to conceive the application of the rules of natural justice.

Even Right to The Information Act, 2005 provides express provisions to protect certain information
from discloser such as,

(a) Information, disclosure of which would prejudicially affect their sovereignty and integrity of India,
the security, strategic, scientific or economic interest of the State, etc
(b) information which has been barred by Court from disclosure.
(c) the information, the disclosure of which cause breach of privilege of parliament or the state
legislature.
(d) Information relating commercial confidence, IPR etc.
(e) Information available to a person in his fiduciary relationship.
(f) Information which impair the process of investigation or prosecution of offenders.
(g) Information relating copy right etc.

2. (iv) Where prompt action is needed/ exclusion in cases of interim preventive action:
Desirably, it may be to allow a hearing or an opportunity to make representations, or simply to give
prior notice, before a decision is taken, summary action may be alleged to be justifiable when an
urgent need for protecting the interests of other persons arises. There are in fact remarkably few
situations in which the enforcement powers exist. For example, interim anti-social behavior orders
made without notice are not unlawful where it is necessary for the court to act urgently to protect the
interests of a third party or to ensure that the order of the court is effective.

There are numerous illustrations of statutory provisions which for reasons of public safety or public
health permit public authorities to interfere with property or other rights. For example: the destruction
of infected crops; the prevention of the bus lank being carried on in a manner detrimental to the
interests of the public or of depositors or other creditors; prohibition on entry to an airport;
suspension of the license of a public service vehicle seizure of obscene works;

Seizure of food suspected of not complying with food safety requirements; local authorities may
examine and test, drains and test sewers, drains and sanitary conveniences that it believes to be
defective etc,.

In the same manner if the administrative authority passed a suspension order in the nature of a
preventive action and not a final order, the application of the principles of natural justice may be
excluded. In Abhay Kumar v. K Srinivasan, the institution passed an Oder debarring the student from
entering the premises of the institution and attending classes till the pendency of a criminal case
against him for stabbing a co-student. This order was challenged on the ground that it violates
Principles of Natural Justice. The Delhi High Court rejecting the contention held that such an order
could be compared with an order of suspension pending enquiry which is preventive in nature in
order to maintain campus peace and hence the principles of natural justice shall not apply.

It was also in Maneka Gandhi v. Union of India recognized that “where an obligation to give notice
and opportunity to be heard would obstruct the taking of prompt action, especially action of a
preventive or remedial nature, right of prior notice and opportunity to be heard may be excluded by
implication”. In this case it is interesting to see that natural justice entails new meaning and place
under Indian Constitution at the same time Court recognized the circumstance under which
Principles of natural Justice can be discarded.

2. (v) Where it is impracticable to hold hearing or appeal:

It is one of the most convincing reason that the number of persons affected by a particular order, act
or decision is so great as to make it manifestly impracticable for them all to be given an opportunity
of being heard by the competent authority beforehand. This is the reason why representation may
not be required for the making of regulation of a legislative character in absence of legislative
requirement.

For example, In R v. Aston University Senate Ex.p the large number of applicants competing for
scarce resource may make it impracticable to offer each applicant a hearing. If, for example, there
are 1,000 applicants for 100 places available in University law department it may be impossible to
afford interviews to many of those who, from the particulars supplied with their written applications,
appear sufficiently meritorious or suitable to warrant fuller personal consideration. In this
circumstance even if the court finds that a breach of procedural fairness has occurred, administrative
impracticability may still be relied upon as a reason for refusing a remedy in its discretion.

In R V Radhakrishanan v. Osmania University, where the entire MBA entrance examination was
cancelled by the University because of mass copying, the Court held that notice and hearing to all
candidates not possible in such a situation, which had assumed national proportions, Thus the court
sanctified the exclusion of the rules of natural justice on the ground of administrative impracticability.

In the same way the Supreme Court in Andhra Steel Corporation v. A.P. State Electricity Board held
that a concession can be withdrawn at any time without affording any opportunity of hearing to
affected persons except when the law requires otherwise or the authority is bound by promissory
estoppels. In this case the electricity board had withdrawn the concession in electricity rate without
any notice and hearing to the appellant. Therefore, where an order of extension was cancelled
before it became operational.

In Union of India v. O. Charadhar, held that cancellation of panel, select, reserve, waiting, merit or
rank lists, individual hearing to candidate is not necessary where the mischief in conducting selection
was so widespread and all the mischief in conducting the result, that it was difficult to identify the
persons unlawfully benefited or unlawfully deprived of selection. Thus even the consequent
termination of service does not attract principles of natural justice.

Also in W.B. Electricity Regulatory Commission v. CESC Ltd., it opined that when a statute confers a
right which is in conformity with the principles of natural justice, the same cannot be negativated by a
Court on an imaginary ground that there is a likelihood of an unmanageable hearing before the
authority or practical inconvenience. In this case the W.B. Electricity Regulatory Commission had
contended that though Act requires consumers hearing before fixing tariff, yet giving hearing to 17
lakh electricity consumers would be a practical impossibility and inconvenience. Rejecting the
contention, the Court observed that the Act does not give individual rights to every consumer and the
same is regulated by Regulations, therefore, the question of indiscriminate hearing does not arise.

Subsequent fair hearing or Appeal: if the public authority to make decisions which do not comply fully
with procedural fairness requirements if the person affected has recourse to another hearing or
appeal which itself provides fairness. There are situations where the absence of procedural fairness
before a decision is made can be subsequently and adequately be “cured”, for example on appeal a
prior hearing may be better than a subsequent hearing, but a subsequent hearing is better than no
hearing at all; and in some cases the courts have held that statutory provisions for an administrative
appeal.

2. (vi) Exclusion in case of purely administrative matters:

Where nature of authority is purely administrative no right of hearing can be claimed, where a
student of the university was removed from the rolls for unsatisfactory academic performances
without being given any per-decisional hearing. The Supreme Court in Jawaharlal Nehru University
v. B.S. Narwal held that the very nature of academic adjudication appears to negative any right of an
opportunity to be heard. Therefore if the competent academic authorities examine and asses the
work of a student over a period of time and declare his work unsatisfactory, the rules of natural
justice may be excluded.

In the same manner in Karnataka Public Service Commission v. B.M. Vijay Shanker when the
commission cancelled the examination of the candidate because, in violation of rules, the candidate
wrote his roll number on every page of the answer-sheet, the Supreme Court held that the principles
of natural justice were not attracted, the Court observed that the rule of hearing be strictly construed
in academic discipline and if this was ignored it would not only be against the public interest but also
erode the social sense of fairness. However, this exclusion would not apply in case of disciplinary
matter or where the academic body performs non-academic functions granting sanction of
prosecution is purely administrative functions, therefore, principles of natural justice are not
attracted. In the same manner cancellation of bid for failure to execute lease deed and to deposit
security amount, held, would not attract principles of natural justice.

2. (vii) Where no right of person is infringed:

In some case it has been suggested that a claimant who is for some reason undeserving for certain
claims (due to absence of right to claim) may forfeit the right to procedural fairness. Where no right
has been conferred on person by any statute nor any such right arises from common law the
principles of natural justice are not applicable, this based on the principle Ebi Jus ebi remedium and
Injuria sine damano the earlier stands for ‘where there is right there is remedy’ and later stands for
‘there shall be legal right or interest to claim some interest or benefit’.

In J.R. Vohra v. Indian Export House (p) Ltd. The Delhi Rent Control Act makes provisions for the
creation of limited tenancies, Section 21 and 37 of the Act provide for the termination of limited
tenancies. The combined effect of these sections is that after the expiry of the term a limited tenancy
can be terminated and warrant of possession can be issued by the authority to the landlord without
any notice of hearing to the tenant. Upholding the validity of warrant of possession without complying
with the principles of natural justice, the Supreme Court held that after the expiry of the period of any
limited tenancy, a person has no right to stay in possession and hence no right of his is prejudicially
affected which may warrant the application of the principles of natural justice.

In the same manner the Court in Andhra Steel Corporation v. A.P. State Electricity Board held that a
concession can be withdrawn at any time without affording any opportunity of hearing to affected
persons except when the law requires otherwise or the authority is bound by promissory estoppels.
In this case the electricity board had withdrawn the concession in electricity rate without any notice
and hearing to the appellant. Therefore, where an order of extension was cancelled before it became
operational or the order of stepping up salary was withdrawn before the person was actually paid or
the service of the probationer terminated without charge the principles of natural justice are not
attracted.

2. (viii) The procedural defect would have made no difference to the outcome:
There are several instances where Court discarded principles of natural justice after satisfying that
the outcome of the case could not have been different had natural justice been fully observed. These
decisions have been sought to be explained on the ground that the relief sought was discretionary,
or on the ground breach makes an order voidable rather than void. It is submitted that neither
explanation is sufficient. As to the former, it is right to note that a refusal of relief on the ground that it
would make “no difference” may be explained either as an exercise of the courts discretion as to the
grant of relief, as a part of the consideration of whether the principles of fairness have in fact been
infringed at all.

‘Useless formality’ theory is no doubt yet another exception to the application of the principles of
natural justice but it should be used with great caution and circumspection by the Court otherwise it
would turn out to be wheel of miscarriage of justice. It can only be used where on the admitted or
undisputed facts only one conclusion is possible and under the law only one penalty is permissible,
the Court may not insist on the observance of the principles of natural justice because it would be
futile to order its observance.

In R v. Haberdashers Aske’s School Governors , a decision by governors refusing to correct an

inaccurate statement in a consultation paper, and refusing to extend the consultation period was
held not unfair because the error in question could not have led a person reading the pamphlet to
have reached a different Conclusion.

In Dharmarathmakara Rai Bhadur Arcot Ramaswmay Mudaliar Educational Institution v. Education

Appellate TribunalIn this case a lecturer, who had been granted leave for doing M. Phil, in violation
of leave condition, had joined Ph. D course. She was given notice and after considering her reply,
wherein she had admitted joining Ph. D course, her service was terminated. She challenged the
termination order before Karnataka Private Educational Institutions (discipline and Control) Act, 1975
subsequently it is appealed to HC where termination was held invalid, but SC held that opportunity to
show cause was not necessary where facts are undisputed and the affected person could not fourth
any valid defence.

Similarly in KSRTC v. S.G. Kotturappa, the Court opined that where the respondent had committed
repeated acts of misconduct and had also accepted minor punishment, he is not entitled to benefit of
principles of natural justice as it would be mere formality, that too, in the case of misconduct by a
daily wager. Supreme Court remarked; “the question as to what extent principles of natural justice
are required to be complied within a particular case would depend on fact situation obtaining in each
case. The principles of natural justice cannot be applied in vacuum. They cannot be put in any
straitjacket formula. The principles of natural justice are furthermore, not required to be complied
with, if it will lead to a mere empty formality.

In Punjab National Bank v. Manjeet Singh, the SC held that in view of the binding nature of the
award the Court will not insist on compliance with the principles of natural justice as it would be a
mere empty formality unless factual position or legal implications under the award is disputed. In this
case award was challenged on the ground that everyone in the constituency was not heard,
therefore, no unilateral decision can be taken by banks without giving employees notice and hearing.

However ‘useless formality’ theory has still not been able to firmly established in administrative law
because there exists a strong opinion which suggest that this theory is wrong as a Court cannot
prejudge the issue and there is scope for abuse on the basis of self imposed assumptions of
authority.

2. (ix) Exclusion on the ground of ‘no fault’ of decision maker:

Where alleged procedural unfairness is not the fault of the tribunal or other decision-maker is a
claimant still entitled to have the decision quashed on the basis that he has not been accorded
procedural fairness? Where, at a hearing on notice, the absence of procedural fairness is due to the
conduct of, or a failure by, the other party to the hearing, it was at one time thought that the courts
had discretion to quash the decision. Thus, where prison authorities failed to make known to a
prisoner charged with an offence against discipline the existence of a witness to the alleged offence,
the determination of the prison board of visitors was quashed on the grounds of unfairness, ambit
that this was not caused by the tribunal itself.

Where an important prosecution witness on a charge of shoplifting deceived the Court as to his
reason for resign from the Metropolitan Police (being in fact required to resign following disgraceful
conduct including a conviction), it was held that his deliberate concealment constituted unfairness,
so that the conviction should be quashed.

It has been suggested, however, that these decisions should be viewed not as resting on the
principles of fairness, but as based upon the alternative principles that “fraud unravels everything”, or
because the “process leading to conviction” has been distorted and vitiated as a result of breach of
duty owed to the procedure court and to the defence prosecutor. The principles of fairness, in
contrast, are “concerned solely with the propriety of the procedure adopted by the decision-maker”,
but this approach are the responsibility of the prosecution or respondent, but which cannot be
characterized as fraud or breach of duty.

In the same manner it may be futile to comply with the principles of natural justice would be where
administrative action is perse illegal as an ineligible candidate has been considered for appointment.
It has been held that the principles of natural justice may not be applied unless prejudice is caused
and there is no prejudice if an ineligible candidate is considered for appointment. Likewise, as
general rule, a person who has himself impeded or frustrated the service of notice of impeding action
cannot afterwards be heard to complain that he did not receive actual notice. But where the mistake
is due to the conduct of the applicant’s legal representative, the position is not entirely clear.

In R v. Secretary of State for the Home Department, the applicant had lodged an appeal against
the Home Secretary’s decision to make a deportation order against him. Notice of appeal was sent
to his solicitors, who misaddressed the letter when sending it on to the applicant, who consequently
never received notice of the appeal. The appeal was therefore dismissed in his absence. On an
application for judicial review of the decision to dismiss the appeal, on the ground that the applicant
had been denied a fair (or any) hearing, the House of Lords held that a party cannot complain of a
denial of fair hearing where he failed to make use of an opportunity to have his case heard through
the negligence of his legal adviser, even if he himself is not responsible in any way for that failure.
But in India law on this issue is quite clear that it is good ground to reopen the hearing of case on the
ground of negligence of Legal representative resulting injustice the party.

3. Conclusion
Authors are of the conclusion that the Courts both in India and England in relation to administrative
proceedings created various exception to the requirement of Natural Justice Principles and
procedure there off. However, these exceptions are all circumstantial and not conclusive, every
exception to be adjudged admissible or otherwise only after looking into the facts and circumstances
of each case. The main objective behind the reconciliation between the inclusion and exclusion of
protection of Principles of Natural Justice is to harmoniously construe individual’s natural rights of
being heard and fair procedure as well as the public interest. Larger public interest is to be allowed
to override the individual’s interest where the justice demands.