ADMINISTRATIVE LAW

AUDI ALTERAM PARTEM

NAME: SHAJI AHZAM

3RD YEAR
SUBMITTED TO: VINOD SIR
Table of Contents
INTRODUCTION...........................................................................................................................................3
Principle Explained......................................................................................................................................3
(A) Notice:................................................................................................................................................3
(B) Hearing: - Oral or Personal Hearing- How Far Necessary:..............................................................5
Stages or Steps of Audi Alteram Partem......................................................................................................7
Exceptions to Audi Alteram Partem:...........................................................................................................9
(1) Statutory Exclusion:................................................................................................................................9
(2) Legislative Function:.........................................................................................................................10
(3) Impractibility:...............................................................................................................................11
Conclusion:................................................................................................................................................12
References.................................................................................................................................................14

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 ACKNOWLEDGEMENT
Firstly, I would like to thank the most respected Dean, Ma’am Nuzhat Parveen Khan to provide
this opportunity to me. Further I would like to thank my subject teacher Vinod Sir who gave me
this golden opportunity to research on the topic –Audi Alteram Partem. This assignment work
assigned to me has proved to be very fruitful in acquiring a deep understanding and knowledge
regarding the topic. I have come across many subtleties regarding the topic and got to learn many
new things.

Finally, I would like to thank my parents, who always supported and promoted my interest
without whose constant support and blessings this assignment would not have been completed.

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INTRODUCTION
The rule of natural justice has evolved with the growth of civilization. Natural justice is the
concept of common law which implies fairness, reasonableness, equality and equity. In India, the
principles of natural justice are the grounds of Article 14 and 21 of the Constitution. Article 14
enshrines that every person should be treated equally. Article 21 in its judgment of Maneka
Gandhi vs. The Union of India, it has been held that the law and procedure must be of a fair,
just and reasonable kind. The principle of natural justice comes into force when no prejudice is
caused to anyone in any administrative action. The principle of Audi Alteram Partem is the basic
concept of the principle of natural justice. This doctrine states the no one shall be condemned
unheard. This ensures a fair hearing and fair justice to both the parties. Under this doctrine, both
the parties have the right to speak. No decision can be declared without hearing both the parties.
The aim of this principle is to give an opportunity to both the parties to defend themselves. Audi
alteram partem means ‘hear the other side’, or ‘no man should be condemned unheard’ or ‘both
the sides must be heard before passing any order’.

Principle Explained
The second fundamental principle of natural justice is Audi alteram partem, i.e., no man should
be condemned unheard, or both the sides must be heard before passing any order. De
Smith1says,‘ no proposition can be more clearly established than that a man cannot incur the loss
of liberty or property for an offence by a judicial proceeding until he has had a fair opportunity
of answering the case against him’. A party is not to suffer in person or in purse without an
opportunity of being heard’. This is the first principle of civilized jurisprudence and is accepted
by laws of men and god. In short, before an order is passed against any person, reasonable
opportunity of being heard must be given to him. Generally, this maxim includes two elements:
(i) Notice; and (ii) Hearing.

1
(1615) 11 Co. Rep 93 b: 8 Digest 218

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(A) Notice:
Before any action is taken, the affected party must be given a notice to show cause against the
proposed action and seek his explanation. It is a sine qua non of the right of fair hearing. Any
order passed without giving notice is against the principles of natural justice and is void ab initio.
Before taking any action, it is the right of the person to know the facts. Without knowing the
facts of the case, no one can defend himself. The right to notice means the right of being known.
The right to know the facts of the suit or case happens at the start of any hearing. Therefore,
notice is a must to start a hearing. A notice must contain the time, place and date of hearing,
jurisdiction under with the case is filed, the charges, and proposed action against the person. All
these things should be included in a notice to make it proper and adequate. Whenever a statute
makes it clear that a notice must be issued to the party and if no compliance or failure to give
notice occurs, this makes the act void. The article should contain all the essentials to it. If it only
contains the charges but not the ground or time or date, then the notice must be held invalid and
vague. Non-issue of the notice or any defective service of the notice do not affect the jurisdiction
of the authority but violates the principle of natural justice.

In bagg case2, James Bagg, a Chief Burgess of Plymouth had been disfranchised for unbecoming
conduct in as much as it was alleged that he had told the Mayor, ‘you are a cozening knave. I
will make thy neck crack’ and by ‘turning the hinder part of his body in an inhuman and uncivil
manner’ towards the mayor, said, ‘come and kiss’ he was reinstated by mandamus as no notice
or hearing was given to him before passing the impugned order.

In a case of Punjab National Bank v. All India Bank Employees Federation3, the notice
contained certain charges but the penalty was imposed on the charges other than those mentioned
in the notice. Thus, the charges on which the penalty was imposed were not contained in the
notice served on the person concerned. The notice was not proper and, therefore, imposition of
penalty was invalid. It is to be noted if the person concerned is aware of the case against him and
not prejudiced in preparing his defense effectively the requirement of notice will not be insisted

2
A.I.R. 1960 S.C. 16 32
3
A.I.R. 1971 S.C. 389

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upon as a mere technical formalities and proceeding will not be vitiated merely on the technical
ground. That the person concerned was not served notice before taking the action as in case of
Keshav Mills Co. Ltd. V. Union of India 4, The notice is required to be clear and unambiguous. If
it is ambiguous or vague, it will not be treated as reasonable and proper notice. If the notice does
not specify the action proposed to be taken, it is taken as vague and, therefore, no proper as in
case of Abdul Latif v. Commr5. The notice will also be vague if it does not specify the property
proposed to be acquired as in case of Tulsa Singh v. State of Haryana6. As regards the detention
under any law providing for preventive, Clause (5) of Article 22 provides that in such condition
the making the order for such detention must, as soon as may be, communicate to the detenue the
grounds on which the order has been made and must give him the earliest opportunity of making
a representation against the order. The grounds communicated to the detenue must not be vague
or insufficient or irrelevant, vague or in adequate, the detenue is entitled to be released.

(B) Hearing: - Oral or Personal Hearing- How Far Necessary:

The second ingredient of Audi alteram partem (hear the other side) rule is the rule of hearing. If
the order is passed by the authority without providing the reasonable opportunity of being heard
to the person affected by it adversely will be invalid and must be set aside as in the cases of
Harbans Lal v. Commissioner7, National Central Co-operative Bank v. Ajay Kumar8and Fateh
Singh v. State of Rajasthan9. The reasonable opportunity of hearing which is also well known as
'fair hearing' is an important ingredient of the Audi alteram partem rule. This condition may be
complied by the authority by providing written or oral hearing which is the discretion of the
authority, unless the statue under which the action being taken by the authority provides
otherwise. Thus like U.S.A. and England, the Courts in India do not consider the right to oral or
personal hearing as part of the principle of Audi Alteram Partem unless the statue under which
the action is taken by the authority provides for the oral or personal hearing unless it is not
indicated at without oral or personal hearing the person cannot adequately present. Personal or
oral hearing is important when the context requires it was required in the case of A.K. Gopalan v.

4
A.I.R. 1973 Punj. 263 33
5
A.I.R. 1973 Punj. 263 33
6
(1970) Lab I.C. 1448
7
A.I.R. 1994 S.C. 39
8
A.I.R. 1995 Raj. 15 35
9
(1968) S.C. [C.A. 1362/67 dt. 16.(J2.1968] 39

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State of Madras. It is the duty of the authority who will ensure that the affected party may be
given an opportunity of oral or personal hearing if the context requires otherwise. However, the
above rule of fair hearing requires that the affected party should be given an opportunity to meet
the case against him effectively and this may also be achieved by providing opportunity to the
affected person by making 'written representation' instead of oral or personal hearing as was
provided in the case of Union of India v. J.P. Mitter.

(C) Evidence:
Evidence is an important part which is to be brought properly before the Court in the presence of
both the parties and a judicial or quasi judicial authority must have to act on the evidence
produced as in the case of aR v. Bodmin and not merely on any information which the authority
may receive otherwise as in the case of Collector of Central Excise v. Sanwarmal10.Ordinarily,
no evidence personal or oral should be received at the back of other party and if any such
evidence is recorded, it is duty of the authority that such evidence must be made available to the
other party as in the case of Stafford v. Minister of Health and in another case of Hira Nath v.
Principal. The principle is not confined to formal evidence but extends to any material including
information regarding previous conviction, upon which the Tribunal may act, without giving
opportunity to the affected party to rebut it. In case of Keshav Mill Co. v. Union of India11 the
Supreme Court was not ready to lay down an inflexible rule that it was not necessary to show the
report of enquiry committee to the affected person. The court made it clear that whether the
report of the enquiry committee should be furnished or not depends in every individual case on
merits of the case.

(D) Cross Examination;

The adjudicating authority in a fair hearing is not required only to disclose the person concerned
the evidence or material to be taken against him, but he should be provided an opportunity to
rebut the evidence or material. The important question before the authority is that the witness
should be cross-examined or not.

10
[1978] 1 SCC 248 597 (SC
11
[1992] 2 SCC 206

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In another case of Kanungo & Co. v. Collector of Customs 12the business premises of a person
were searched and certain watches were confiscated by the authority under Sea Customs Act.
The said person was not allowed to cross-examine the persons who gave information to the
authority. There was no violation of the natural justice and the Court held that the principles of
natural justice do not require the authority to allow the person concerned the right to cross
examine the witnesses in the matters of seizure of goods under the Sea Customs Act. If the
person concerned is allowed the right to cross-examine, it is not necessary to follow the
procedure laid down in the Indian Evidence Act.

(E) Legal Representation;

An important question is whether right to be heard includes right to legal representation? Fairly
speaking, the representation through a lawyer in the administrative adjudication is not considered
as an indispensable part of the fair hearing. But, in certain situations if the right to legal
representation is denied, then it amounts to violation of natural justice. Thus where the case
involves question of law as in case of J.J. Mody v. State of Bombay and in another case of
Krishna Chandra v. Union of India, the denial of legal representation will amount of violation of
natural justice because in such conditions the party may not be able to understand the question of
law effectively and, therefore, he should be given an opportunity of being heard fairly.

Stages or Steps of Audi Alteram Partem

Code of Civil Procedure governs this principle, and various steps are given before taking a
proper decision:

Right to notice: Before taking any action, it is the right of the person to know the facts. Without
knowing the facts of the case, no one can defend himself. The right to notice means the right of
being known. The right to know the facts of the suit or case happens at the start of any hearing.
Therefore, notice is a must to start a hearing. A notice must contain the time, place and date of
hearing, jurisdiction under with the case is filed, the charges, and proposed action against the
person. All these things should be included in a notice to make it proper and adequate. Whenever
12
[1992] 2 SCC 620

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a statute makes it clear that a notice must be issued to the party and if no compliance or failure to
give notice occurs, this makes the act void. The article should contain all the essentials to it. If it
only contains the charges but not the ground or time or date, then the notice must be held invalid
and vague. Non-issue of the notice or any defective service of the notice do not affect the
jurisdiction of the authority but violates the principle of natural justice.images

Right to know the evidence against him: In Dhakeshwari Cotton Mills Ltd vs. Commissioner
of Income Tax13, it was held that every person has right to know the evidence to be used against
him. In the following case, the appellate income tax tribunal did not disclose the information
supplied to it by their department. Hence, the apex court held that it is against the principle of
natural justice. Therefore, the evidence to be used against the party should be disclosed to him.

Right to present case and evidence: It is the right guaranteed to both the parties to represent
their case. This can be done orally or in writing. Many courts do not accept the oral process as it
does not constitute any evidence to it. Therefore, the case should be presented in written before
the court for further hearing. In the case of Union of India vs. J.P.Mitter 14, it has been held that
if a person is granted to present his case in writing, there is no violation of the principle of
natural justice.

Right to rebut evidence: It is the right of the opposite party to rebut the issue raised against him.
It is the duty of the court to grant permission for a rebuttal to the party so that he can express his
views and defend himself. It includes cross-examination on the part of the defendant. Cross-
examination is the most effective tool to cross-check the evidence. Therefore, the court must
allow the party to cross-examine the evidence presented against him.

No evidence should be taken at the back of the other party: No evidence should take place at
the back of the other party. Means no ex parte evidence should be taken by the court. The
presence of both the parties is necessary while the court is examining the evidence and taking a
decision over it. But under certain cases, this right is not guaranteed to the opposite party. This
may be due to fear of humiliation or harassment of that person. In the case of Hira Nath Mishra
vs. Rajendra Medical College15, 36 girls of a medical college filed a complaint against few boys
for creating nuisance inside the girl’s hostel. They also provided the picture where the boys were
13
1955 AIR 65, 1955 SCR (1) 941
14
1971 AIR 1093, 1971 SCR (3) 483
15
AIR 1973 SC 1260, (1973) IILLJ 111 SC, (1973) 1 SCC 805

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misbehaving as the evidence. The court examined the evidence without informing the other party
and held the expulsion of boys from the University. The opposite party after this challenged the
expulsion before SC and one of the grounds challenged was that the evidence was taken behind
their back. Later on, the Hon’ble Supreme Court held that whatever evidence was taken behind
their back should be brought to their notice, and they should be given the opportunity to rebut the
evidence.

Report of the inquiry to be shown to the other party: It is the right of the party to check the
report of the inquiry. Article 311(2) of the Constitution states that failure to supply a copy of the
report of the inquiry to the charged government employees before the final decision would
amount to a failure to provide a reasonable opportunity. It was held by the Central
Administrative Tribunal that supplying a copy of the inquiry report to the opposite party is an
obligatory function before proving a judgment to it and failure to it will vitiate the inquiry.

Exceptions to Audi Alteram Partem:

The word exception in the context of natural justice is really a misnomer, but in the below
mentioned exclusionary cases, the rule of Audi alteram partem is held inapplicable not by way of
an exception to “fair play in action”, but because nothing unfair can be inferred by not affording
an opportunity to present or meet a case. But such situations where nothing unfair can be inferred
by not affording a fair hearing must be few and exceptional in every civilized society.

(1) Statutory Exclusion:

Natural justice is implied by the Courts when the parent statute under which an action is being
taken by the Administration is silent as to its application. Omission to mention the right of
hearing in the statutory provision does not ipso facto exclude a hearing to the affected Maneka
Gandhi vs. Union of India, Karnataka Public Service Commission vs. B.M. Vijay Shankar, Ram
Krishna Verma vs. State of U.P.

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A statute can exclude natural justice either expressly or by necessary implication. But such a
statute may be challenged under Art.14 so it should be justifiable. In Charan Lal Sahu vs UOI
(Bhopal Gas Disaster case) is a classical example of the application of this exception. In this case
the constitutional validity of the Bhopal Gas Disaster (Processing of Claims) Act, 1985, which
had authorized the Central Government to represent all the victims in matters of compensation
award, had been challenged on the ground that because the Central Government owned 22
percent share in the Union Carbide Company and as such it was a joint tort feasor and thus there
was a conflict between the interests of the government and the victims. The court negative the
contention and observed that even if the argument was correct the doctrine of necessity would be
applicable to the situation because if the government did not represent the whole class of gas
victims no other sovereign body could so represent and thus the principles of natural justice were
no attracted.

(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 311(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. This legislation provide for details of how to determine claims and pay them. The
affected parties approached the SC and contended that no hearing was provided to them and it
was violative of Audi Alteram Partem. The SC held, “For legislation by Parliament no principle
of natural justice is attracted, provided such legislation is within the competence of the
Legislature. "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

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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. In Firozhpur
Constituency Parliamentary Election counting was been going on where in some segments
counting were going on and in some it was over. One candidate was having a very good lead but
before the declaration the very purpose of surveillance and there is every possibility of the ends
of justice being defeated instead of being served.

(3) Impractibility:
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. In Bihar
School Examination Board vs. Subhash Chandra, the Board conducted final tenth standard
examination. At a particular centre, where there were more than thousand students, it was alleged
to have mass copying. Even in evaluation, it was prima-facie found that there was mass copying
as most of the answers were same and they received same marks. For this reason, the Board
cancelled the exam without giving any opportunity of hearing and ordered for fresh examination,
whereby all students were directed to appear for the same. Many of the students approached the
Patna HC challenging it on the ground that before cancellation of exam, no opportunity of
hearing was been given to the students. The HC struck down the decision of the Board in
violation of Audi Alteram Partem. The Board unsatisfied with the decision of the Court
approached the SC. The SC rejected the HC judgment and held that in this situation, conducting
hearing is impossible as thousand notices have to be issued and everyone must be given an
opportunity of hearing, cross-examination, rebuttal, presenting evidences etc. which is not
practicable at all. So, the SC held that on the ground of impracticability, hearing can be excluded.

(4) Academic Evaluation:

Where nature of authority is purely administrative no right of hearing can be claimed. In
Jawaharlal Nehru University v. B.S. Narwal, B.S Narwal, a student of JNU was removed from
the rolls for unsatisfactory academic performances without being given any pre decisional

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hearing. The Supreme Court 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.

(5) Inter-Disclipinary Action:

In Inter- Disciplinary action like suspension etc. there is no requirement to follow the principle of
natural justice. 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. Thus, he approached the Supreme Court on
the ground of violation of PNJ as he was not given an opportunity to be heard. The SC held that
the suspension being interim-disciplinary action, there is no requirement to afford hearing. It can
be ordered without affording an opportunity of hearing.

Conclusion:
The principle of natural justice has evolved through civilization. It has not evolved from the
constitution but from mankind itself. Every person has the right to speak and be heard when
allegations are being put towards him or her. The Latin maxim, ‘Audi Alteram Partem’ is the
principle of natural justice where every person gets a chance of being heard. The meaning of the
maxim itself says no person shall be condemned unheard. Hence, no case or judgment can be
decided without listening to the point of another party. There are many cases where this principle
of natural justice is excluded, and no option is given to the party to speak. Natural justice means
that justice should be given to both the parties in a just, fair and reasonable manner. Before the
court, both the parties are equal and have an equal opportunity to represent them. The principle
of natural justice has evolved through civilization. It has not evolved from the constitution but
from mankind itself. Every person has the right to speak and be heard when allegations are being
put towards him or her. The Latin maxim, ‘Audi Alteram Partem’ is the principle of natural
justice where every person gets a chance of being heard. The meaning of the maxim itself says
no person shall be condemned unheard. Hence, no case or judgment can be decided without
listening to the point of another party. There are many cases where this principle of natural

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justice is excluded, and no option is given to the party to speak. Natural justice means that justice
should be given to both the parties in a just, fair and reasonable manner. Before the court, both
the parties are equal and have an equal opportunity to represent them.

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References
"A History of Progress– Chronicle of the Audi AG. Audi AG, Public Relations. ."
1996. .
"audi alteram partem: Definition from the Merriam-Webster Online Dictionary."
n.d.
"Audi alteram partem's entry in the duhaime.org legal dictionary." n.d.
C.K.TAKWANI. Lectures on administrative law . n.d.
Dr.U.P.D.KESARI. Lectures on administrative law . n.d.
I.P MASSEY. ADMINISTRATIVE LAW . Eastern Book Company, 8th ed. , 2012.

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