Chapter 1

The principle of natural justice

1.1 Introduction of The principle of natural justice

The words ‘natural justice’ are derived from the Roman word ‘Jus Naturale’, which means
principles of natural law, justice, equity, and good conscience.1 It is closely related to
Common law and moral principles but is not codified. It is a law of nature which is not
derived from any statute or constitution.2
Natural justice is a legal philosophy used in some jurisdictions in the determination of just,
or fair, processes in legal proceedings. The concept is very closely related to the principle of
natural law which has been applied as a philosophical and practical principle in the law in
several common law jurisdictions. Natural justice in essence could just be referred to as
‘Procedural Fairness’, with a purpose of ensuring that decision-making is fair and
reasonable. Natural justice must underpin departmental decision-making as those decisions
affect the interests of persons or corporations.
According to Roman law certain basic legal principles are required by nature, or are so
obvious that they should be applied universally without needing to be enacted into law by a
legislator. The rules or principles of natural justice are now regularly applied by the courts in
both common law and Roman law jurisdictions. Natural justice operates on the principles
that man is basically good, that a person of good intent should not be harmed, and one
should treat others as one would like to be treated.

Natural justice includes the notion of procedural fairness and may incorporate the following
guidelines:

A person accused of a crime, or at risk of some form of loss, should be given adequate
notice about the proceedings (including any charges.

A person making a decision should declare any personal interest they may have in the
proceedings.

A person who makes a decision should be unbiased and act in good faith. He therefore
cannot be one of the parties in the case, or have an interest in the outcome. This is
expressed in the Latin maxim, nemo judex in sua causa: “no man is permitted to be judge in
his own cause”.
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Proceedings should be conducted so they are fair to all the parties – expressed in the Latin
maxim audi alteram partem: “let the other side be heard”.

Each party to a proceeding is entitled to ask questions and contradict the evidence of the
opposing party.

A decision-maker should take into account relevant considerations and extenuating

circumstances, and ignore irrelevant considerations.

Justice should be seen to be done. If the community is satisfied that justice has been done,
they will continue to place their faith in the courts. 3

“Natural justice is a sense of what is wrong and what is right.”4

1.2 The principle of natural justice encompasses following two main rules

1. Nemo judex in causa sua – No one should be made a judge in his own cause or the rule against
bias.

2. Audi alteram partem – Hear the other party or the rule of fair hearing or the rule that no one
should be condemned unheard.5

1.3 Purpose of the principle

 To provides equal opportunity of being heard.

 Concept of Fairness.
 To fulfil the gaps and loopholes of the law.
 To protect the Fundamental Rights.
 Basic features of the Constitution.
 No miscarriage of Justice.

The principles of natural justice should be free from bias and parties should be given fair
opportunity to be heard and all the reasons and decision taken by the court should be
informed by the court to the respective parties6

1.4 When it can be claimed?

Natural justice can be claimed when acting judicially or quasi-judicial like panchayat and
tribunals etc. as well. It includes the concept of fairness, basic moral principles and various
different kinds of biases and why the natural justice is required and what all special cases or
situation it includes where the principles of natural justice will not be applicable.In the case
of the Province of Bombay vs. Khushaldas Advani , it was said that natural justice will be

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applicable on statutory as it is a basic principle of Natural justice which leads to fairness and
justice.7

1.5 Effect of function

 Administrative action.
 Civil consequences.
 The doctrine of Legitimate exception.
 Fairness in action.
 Disciplinary proceeding.

In the case of Board of high school vs. Ghanshyam, a student was caught while cheating in
the examination hall and he was debarred due to the act. Supreme Court held that student
cannot file a Public Interest Litigation against the examination board.

High water mark case- Eurasian equipment and company limited vs. State of West Bengal:
Under this case, all the executive engineers were blacklisted. Supreme Court held that
without giving a valid and reasonable ground you cannot blacklist anyone and further he
should be given a fair opportunity of being heard.

1.6 The principle of natural justice Application in Bangladesh

The apex court of the country has held that to treat a person in violation of the principles of
natural justice would amount to arbitrariness and discriminatory treatment in violation of
the right guaranteed by Article 27 of the Constitution of Bangladesh. Natural justice is an
important concept in administrative law. The principles of natural justice of fundamental
rules of procedure are the preliminary basis of a good administrative set-up of any country.
Natural justice represents the higher procedural rules developed by judges, which every
administrative authority must follow in taking any decision adversely affecting the rights of a
private individual.

The principles of natural justice have come out from the need of man to protect himself
from the excesses of organized power man has always appealed to someone beyond his
own creation.

The principles of natural justice have come out from the need of man to protect himself
from the excesses of organized power man has always appealed to someone beyond his
own creation. Natural law is of the 'higher law of nature' or 'natural law'. Natural law does
not mean the law of the nature or jungle where lion eats the lamb and tiger eats the
antelope but a law in which the lion and lamb lie down together and the tiger frisks the
antelope. Natural law is another name for common-sense justice.

In Bangladesh the enforcement principles of natural justice are ensured by several

provisions of our constitution. Article 27 of the Constitution of Bangladesh states 'all
citizens are equal before law and are entitled to equal protection of law'. The apex court of
our country has held that to treat a person in violation of the principles of natural justice

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would amount to arbitrariness and discriminatory treatment in violation of the right
guaranteed by Article 27 of the Constitution. In the case of Abdul Latif Mirza Vs. Bangladesh
31 DLR (AD) 33, the Supreme Court of Bangladesh held that the principles of natural justice
are inherent in every society aspiring for a civilized living. It further observes that according
to the third paragraph of the Preamble of the Constitution, the fundamental aim of the state
in a society in which the rule of law, the fundamental human rights and freedom, equality
and justice, political, economic and social shall be secured.

For the present purposes, to the first maxim Nemo debetessejudex in propria causa, the
principles on which this maxim is based include the following: (i) No man shall be a judge in
his own cause; (ii) Justice should not only be done but manifestly and undoubtedly be seen
to be done; (iii) Judges should be above suspicion and, therefore, anything which lends or
may be regarded as tending to cause such a person to decide a case otherwise than on
evidence must be held to be biased. The word 'bias' has come to mean prejudice, show of
favor or disfavor, antagonism, spite, hostility, prepossession that sways the mind. Bias which
will violate the principles of natural justice may be: (a) pecuniary bias, (b) personal bias, and
(c) official bias or bias as to the subject matter, etc.

Bangladesh is a democratic country and hence the foremost object of this welfare state is to
protect the rights and interests of its citizens. And without complying with the principles of
natural justice it cannot be done. The principle of natural justice ensures fair justice and
through the principles of natural justice the rights and interests of the citizens can be
ensured also. Natural justice can benefit the decision maker as well as the person or
organization whose rights or interests may be affected in the following ways. (i) Assists the
decision maker in reaching the correct and preferable decision; (ii) Provides the decision
maker with relevant information, evidence or interpretation of legislation or policy which
he/she has not considered; (iii) Provides a useful avenue for the decision maker to ensure
that the facts or information that he/she is relying on is correct.
Separation of judiciary from the executive, effective from 1st November, 2007, is a positive
step towards for fair trial in Bangladesh. Since the judicial body is no longer under the
executive, the executive body cannot trespass judiciary and a new post is introduced by the
name of judicial magistrate who are already working under the judicial body. Fair trail of
judiciary depends on some certain conditions like mode of appointment of the judges,
security of their tenure in the office and adequate remuneration and privileges. The
separation of judiciary ventilates all the facilities as Masdar Hossain indicated in his case.
But it does not absolutely indicate that the judiciary is able to act without any pressure.

The following recommendations can be drawn for removing the judicial problems like
unfairness or bias and to ensure the principle of natural justice: (i) the appointment of
judges (lower court to upper court) have to be neutral; (ii) remuneration of judges should be
increased with other benefits, like heir of judges (son or daughter) has to be kept in the
metropolitan area with a common standard of dormitory for ensuring their proper and
standard education by the expense of government; (iii) residential arrangements should be
proper and without any rent; (iv) professional activity of a judge should not be intervened
with any internal or external pressure, like unauthorized pressure from the boss. It might
hamper fair justice; (v) judges should be rewarded depending on their professional and
other performances; (vi) judges have to be promoted properly on the basis of seniority and
experience, otherwise they will be de-motivated; (vii) appointment of judges in the judicial
field (lower to apex court) have to be neutral/impartial, especially members of the judicial
service commission have to be selected impartially; (viii) lack of consciousness, lack of
democratic culture, lack of popular access to justice, lack of interaction with other court,
lack of legal knowledge have to be eradicated by sufficient training; (ix) the higher
educational institutions like public and private universities have to be developed properly by
adequate resources. Particularly legal education has to be promoted; and (x) a judge should
apply his or her judicial mind and avoid any nepotism.8

Chapter 2
Doctrine of Audi Alteram Partem

2.1 Introduction of Audi Alteram Partem

This maxim means “hear the other side” or no man should be unheard, both the parties
have an opportunity of being heard. Justice will be given to both parties. Audi alteram
partem is from a Latin phrase “audiatur et altera pars”. Its meaning is also the same as hear
the other side. This is a very strong rule which means no one will be judged without fair
hearing. The motive of this maxim is to provide an opportunity to other party to respond to
the evidence against him.

2.2 Meaning of maxim

This maxim has been applied to ensure fair play and justice to the person who is affected. It
is mainly applicable in the field of administrative action. The procedure which is adopted
should be just and fair. The person should be given an opportunity so that he can defend
himself before the court of law. The person who decides anything without hearing the other
side although he says what is right but he would not have done what is right. The principle
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of hearing is basically a code of procedure and thus covers every stage through which an
administrative jurisdiction passes that is from notice to final determination.

It was said by De Smith that “No suggestion can be more obviously settled than that a man
can’t cause the loss of freedom or property for an offense by a legal continuing until he has
had a reasonable chance of noting the body of evidence against him”. A person will not
suffer unless and until he had an opportunity of being heard. This is the primary rule of
humanized statute and is acknowledged by the laws of men and god. Before any order is
passed against any individual person, sensible chance of being heard must be given to him.
In this maxim two principles are considered that is fundamental justice and equity. 9

2.3 What is the importance of Audi Alteram Partem?

Audi Alteram Partem is a very important term which helps to get natural justice to every
accused. This helps to hear the other party and to prove their argument with evidence.
Execution of natural justice depends on the option exercised to hear both the sides before
deciding a case. By adopting this principle, no party will be judged without a fair hearing in
which all parties have given opportunities to prove their side with available evidences.

The Latin maxim audi alteram partem has evolved from three simple Latin words to mean
that no person shall be condemned, punished or have any property or legal right
compromised by a court without hearing that person. This term is one of the most cherished
and sacrosanct principles of law.10

2.4 Essential elements

The essential elements of this maxim are as follow:

 Notice

Before any action is taken against the party who is affected. A notice must be provided to
them in order to present a cause against the proposed action and pursue his application. If
any order is passed without giving notice, then it is against the principle of natural justice
and is void ab initio which means void from the beginning. 

It is a right of person to know about the facts before any action is taken and without
knowing the proper facts, a person cannot protect himself. The right to notice means right to
be known. The facts should be known by the party before the hearing of the case. Notice is
essential to begin any hearing. Notice must contain the date, time, place of hearing and also
the jurisdiction under which a case is filed. It must also contain the charges and proposed
against the person. If any of the thing is missing in the notice, then notice will be considered
invalid. Non issuance of notice does not affect the jurisdiction but affects the rules of natural
justice.

Case – Punjab National Bank v. All India Bank Employees Federation

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In this case the notice which was given to the party contain certain charges but it was not
mentioned anywhere that penalty was imposed on the charges. Hence, the charges on
which penalty was imposed was not served as a notice to the parties concerned. The notice
was not proper and thus, the penalty which was imposed was invalid.

Case – Keshav Mills Co. Ltd. v. Union of India

The notice which is given to the parties should be clear and unambiguous. If it is ambiguous
and it is not clear, then the notice will not be considered as reasonable and proper.

 Hearing

The second most essential element of audi alteram partem is fair hearing. If the order
passed by the authority without hearing the party or without giving him an opportunity of
being heard, then it will be considered as an invalid. 

Case – Harbans Lal v Commissioner, National Co-operative Bank v. Ajay Kumar and Fateh
Singh v State of Rajasthan 

In this case, it was held that if a person gets a reasonable opportunity of being heard or fair
hearing it is an essential ingredient of the principal of audi alteram partem. This condition is
accompanied by the authority providing written or oral hearing which is discretion of the
authority, unless the statute under which action is taken by the authority provides
otherwise. It is the duty of authority to ensure that affected parties should get a chance of
oral or personal hearing or not.

 Evidence

Evidence is considered as a most important part which is brought before the court when
both the parties are present there and the judicial or quasi-judicial authority will act upon
the evidence which is produced before the court.

Case – Stafford v Minister of Health

In this case, it was held that no evidence should be received in the absence of the other
party and if any such evidence is recorded then it is the duty of authority to make it available
to the other party.                 

Case – Hira Nath v Principal

In this case, it was held that this principle is not restricted to the mainly formal evidence but
any information regarding previous conviction on which court may rely without giving a
chance to the affected party to deny it.

 Cross examination 
The court should not require to reveal the person concerned or material to be taken against
him, but an opportunity is provided them to deny the evidence. The question arises that will
witness will be cross examined

Case – Kanungo & Co. v Collector of Customs

In this case, the business property of a person was investigated and some watches were
seized by the police who was in power under the Sea Customs Act. A person who gave the
information was not allowed for cross examination. The principle of natural justice was not
violated and the court held that principle of natural justice does not allow the concerned
person to cross examine against the witness in the matter where goods are seized under the
Sea Custom Act.

 Legal Representation 

Genuinely, the representation through a legal advisor in the authoritative arbitration isn’t
considered as an imperative piece of the reasonable hearing. Be that as it may, in specific
circumstances in the event that the privilege to legal representation is not rejected and at
that point it adds up to infringement of natural justice.

Case – J.J Mody v State of Bombay and Krishna Chandra v Union of India

In this case, it was held that refusal of legal representation amounts to the violation of
natural justice because the party was not able to understand the rules of law effectively and
they should get a chance of being heard once again.

Exceptions:

The rule of audi alteram partem is held inapplicable not by method for a special case to
“reasonable play in real life”, but since nothing unjustifiable can be derived by not managing
a chance to present a case.

 Statutory exclusion

Natural justice is submitted by the Courts when the parent statutes under which an action is
made by the administration is quiet as to its application. Exclusion to make reference to one
side of hearing in the statutory arrangement does not reject the hearing of the other party.

Case – Maneka Gandhi versus Association of India, Karnataka Public Service Commission
versus B.M. Vijay Shankar and Ram Krishna Verma versus Province of U.P.

 A rule could be bar natural justice either explicitly or by necessary implication. 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 negatives 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
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 Legislative function 

There are certain circumstances in which hearing might be prohibited. It is just that the
activity of the Administrative being referred to is authoritative and not regulatory in
character. Generally, an order which is of general nature is not applied to one or more
specified person and is regarded as legislative in nature.

Administrative activity, entire, isn’t liable to the guidelines of natural justice. In light of the
fact that these standards set out an approach without reference to a specific person. On a
similar rationale, standards of natural justice can likewise be prohibited by an arrangement
of the Constitution too. However, if the legislative exclusion is mainly concerned with
arbitrary, unreasonable and unfair, courts may cancel such a provision under Article 14 and
Article 21 of the Constitution of India.

 Impractibility

The concept of natural justice is involved when it is practicable to do so but it is not applied
in the case where it is impracticable to apply the rule and in such a situation it is 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 being 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.12

 Academic Evolution

Where nature of power is absolutely regulatory then no privilege of hearing can be

asserted. 

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Case – Jawaharlal Nehru University v. B.S. Narwal, B.S Narwal,

In this case, a student of Jawaharlal Nehru University was expelled from the class because
his academic performance was not satisfactory and it was done without being given any pre
decisional hearing. The Supreme Court held that the idea of academic adjudication seems to
be negative. In this way, if the skilled scholarly experts look at work crafted by student over
some duration and declare his work unacceptable, principle of natural justice might be
rejected.

 Inter-Disciplinary Action

The words like suspension etc. which is inter-disciplinary action in such cases there is no
need of the rule of natural justice.

Case – S.A. Khan v. State of Haryana

In this case, Mr. Khan was at the post of deputy inspector general haryana and was IPS
officer. He was suspended by the haryana government because many complaints were made
against him. He filed a suit in the Supreme Court that he does not get an opportunity of
being heard. The Supreme Court held that suspension was because of interdisciplinary
approach and there is no requirement of hearing once. 13

2.5 Exceptions to The Rule of Natural Justice

The word exception in the context of natural justice is really a misnomer, because in these
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. Such situations where nothing unfair can be
inferred by not affording fair hearing must be few and exceptional in every civilized society.
Application of the principles of natural justice can be excluded either expressly or by
necessary implication, subject to the provisions of Articles 14 and 21 of the constitution.

1) Exclusion Emergency

In such 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 paralyses the process, law will exclude it. Even in a situation of emergency where
precious rights of people are involved, post-decisional hearing has relevance to
administrative and judicial gentlemanliness. Otherwise some pre-decisional hearing, no
matter in a rudimentary form must be given depending on the fact situation of every case.

However, the administrative determination of an emergency situation calling for the

exclusion of rules of natural justice is not final. Courts may review the determination of such
a situation. In Swadeshi Cotton Mills V. Union of India, the court held that the word
“immediate” in section 18-A of the Industries (Development and Regulation) Act cannot
stand in the way of the application of the rules of natural justice.

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2) Exclusion in Cases of Confidentiality

In Malak Singh V. State of Punjab and Haryana the Supreme Court held that the
maintenance of surveillance register by the police is a confidential document. Neither the
person whose name is entered in the register nor any other member of the public can have
access to it. Furthermore, the court observed that the 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.

3) Exclusion in Case of Purely Administrative Matters

A student of the university was removed from the rolls for unsatisfactory academic
performance without being given any pre-decisional hearing. The Supreme Court in Jawahar
Lal 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 assess the work of a student over a period of time and
declare his work unsatisfactory, the rules of natural justice may be excluded. However, this
exclusion would not apply in case of disciplinary matters or where the academic body
performs non-academic functions.

4) Exclusion Based On Impracticability

In R. Radhakrishnan V. Osmania University, where the entire MBA entrance examination

was cancelled by the university because of mass coping, the court held that notice and
hearing to all candidates is 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.

5) Exclusion in Cases of Interim Preventive Action

If the action of the administrative authority is 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 order 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 of denial 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.

6) Exclusion in Cases of Legislative Action

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 Constitution of India excludes the principles of natural justice in
Articles 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
Articles 14 and 21 of the Constitution. Union of India V. Cynamide India Ltd. when the
Supreme Court that no principles of natural justice had been violated when the government
issued a notification fixing the prices of certain drugs. The Court reasoned that since the
notification flowed from a legislative act and not an administrative one so the principles of
natural justice would not apply.

7) Where No Right of the Person Is Infringed

Where no right has been conferred on a person by any statute nor any such right arises from
common law the principles of natural justice are not applicable. In Andhra Steel Corpn. 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 services of the probationer terminated without charge the principles of natural
justice are not attracted.

8) Exclusion in Case of Statutory Exception or Necessity

Disqualification on the ground of bias against a person will not be applicable if he is the only
person competent or authorized to decide that matter or take that action. If this exception is
not allowed there would be no other means for deciding that matter and the whole
administration would come to a grinding halt. But the necessity must be genuine and real.

Charan Lal Sahu V. Union of India (Bhopal Gas disaster case) is a classic 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 per cent share in the Union Carbide
Company and as such it was a joint tortfeasor and thus there was a conflict between the
interests of the government and the victims. Negotiating the contention, the court 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 not
attracted.

9) Exclusion in Case of Contractual Arrangement

In State of Gujarat V. M.P. Shah Charitable Trust, the Supreme Court held the principles of
natural justice are not attracted in case of termination of an arrangement in any contractual
field. Termination of an arrangement/agreement is neither a quasi-judicial nor an
administrative act so that the duty to act judicially is not attracted.

10) Exclusion in Case of Government Policy Decision

In Balco Employees Union V. Union of India, the Apex Court was of the view that in taking of
a policy decision in economic matters at length, the principles of natural justice have no role
to play. In this case employees had challenged the government’s policy decision regarding
disinvestment in Public sector undertakings. The Court held that even though workers may
have interest in the decision, but unless the policy decision to disinvest is capricious,
arbitrary, illegal or uninformed, and is not contrary to law, the decision cannot be challenged
on the grounds of violation of the principles of natural justice. Therefore, if in exercise of
executive powers, the government takes any policy decision, principles of natural justice can
be excluded because it will be against public interest to do so.

11) ‘Useless Formality’ Theory

‘Useless formality’ is yet another exception to the application of the principles of natural
justice. 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. Therefore,
where the result would not be different, and it is demonstrable beyond doubt, order of
compliance with the principles of natural justice will not be justified.14

2.6 Case on Audi Alterem Partem

In Case, Mankea Gandhi Vs. UOI (1978 AIR 597, 1978 SCR (2) 621)

Facts

In this case the passport dated 01.06.1976 of the petitioner, a journalist, was impounded `in
the public interest' by an order dated 02.07.1977. The Govt. declined to furnish her the
reasons for its decision. She filed a petition before the SC under article 32 challenging the
validity of the impoundment order. She was also not given any pre-decisional notice and
hearing.

Argument by the Govt.

The Govt. argued that the rule of audi alteram partem must be held to be excluded because
otherwise it would have frustrated the very purpose of impounding the passport.

Held

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The SC held that though the impoundment of the passport was an administrative action yet
the rule of fair hearing is attracted by the necessary implication and it would not be fair to
exclude the application of this cardinal rule on the ground of administrative convenience.
The court did not outright quash the order and allowed the return of the passport because
of the special socio-political factors attending the case.

The technique of post decisional hearing was developed in order to balance these factors
against the requirements of law, justice and fairness. The court stressed that a fair
opportunity of being heard following immediately the order impounding the passport would
satisfy the mandate of natural justice.

The same technique of validating void administrative decision by post decisional hearing
was adopted in Swadeshi Cotton Mills Vs. UOI (1981 AIR 818, 1981 SCR (2) 533). Under
section 15 of IDRA, an undertaking can be taken over after making an investigation into its
affairs. But u/s 18- AA, a takeover w/o an investigation is permitted where `immediate'
action is required. The court validated the order of the govt. which had been passed in
violation of the rule of audi alteram partem because the govt. had agreed to give post-
decisional hearing. The ratio of the majority decision was as follows: -

1. Pre-decisional hearing may be dispensed with in an emergent situation where immediate

action is required to prevent some imminent danger or injury or hazard to paramount public
interest.

2. Mere urgency is, however, no reason for exclusion of audi alteram partem rule. The
decision to exclude pre-decisional hearing would be justiciable.

3. Where pre-decisional hearing is dispensed with, there must be a provision for post-
decisional remedial hearing.

In K.I.Shephard Vs. UOI certain employees of the amalgamated banks were excluded from
employment. The Court allowing the writs held that post-decisional hearing in this case
would not do justice. The court pointed out that there is no justification to throw a person
out of employment and then give him an opportunity of representation when the
requirement is that he should be given an opportunity as a condition precedent to action.
In H.L.Trehan Vs. UOI (1989 AIR 568, 1988 SCR Supl. (3) 925), a circular was issued by the
Govt. on taking over the company prejudicially altering the terms and conditions of its
employee’s w/o affording an opportunity of hearing to them. The SC observed that "In our
opinion, the post decisional opportunity of hearing does not sub serve the rules of natural
justice. The authority who embarks upon a post-decisional hearing will normally proceed
with a closed mind and there is hardly any chance of getting proper consideration of the
representation at such a post decisional hearing." Thus in every case where pre-decisional
hearing is warranted, post-decisional hearing will not validate the action except in very
exceptional circumstances.15

Chapter 3
Doctrine of Nemo Judex in Causa Sua

3.1 Introduction of Nemo Judex in Causa Sua

“No one should be a judge in his own case” because it leads to rule of biases. Bias means an
act which leads to unfair activity whether in a conscious or unconscious stage in relation to
the party or a particular case. Therefore, the necessity of this rule is to make the judge
impartial and given judgement on the basis of evidence recorded as per the case. 16

Nemo Judex in Causa Sua is popularly known as the rule against bias. It is the minimal
requirement of the natural justice that the authority giving decision must be composed of
impartial persons acting fairly, without prejudice and bias. According to the ‘Lectric Law
Library’s Lexicon, “Any mental condition that would prevent a judge or juror from being fair
and impartial is called bias. A particular influential power which sways the judgment; the
inclination or propensity of the mind towards a particular object. It may be ground for
disqualification of the judge or juror in question.” It is also defined as, “A predisposition or a
preconceived opinion that prevents a person from impartially evaluating facts that have
been presented for determination; a prejudice.” But we have to keep in mind the
observations of Justice Frank of United States in re. Linahan: “If, however, bias and partiality
be defined to mean the total absence of preconceptions in the mind of the Judge, then no
one has ever had a fair trial, and no one ever will. The human mind, even at infancy, is no
blank piece of paper. We are born with the predispositions and the process of education,
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16
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formal and informal, create attitudes which precede reasoning in particular instances and
which therefore, by definition are prejudices.” 17
The phrase is credited to Sir Edward Coke in the 17th century. It is also found in The Moral
Sayings of Publius Syrus, a Roman Slave (1856), by Darius Lyman, Jun., A. M.18

3.2 Justice should not only be done but seen to be done

The dictum ‘Justice should be done’ is satisfied by mere observance of the principles of
natural justice. However, the principle does not end here. It extends further. Justice should
manifestly be seen to be done. If this is ignored, then the decision would be affected,
especially in cases where an allegation of bias or interest or favour is noticed and affording
proper hearing is not forthcoming from the decision.

3.2 Kinds of Bias

The rule against bias may be classified under the following three heads:

1. Pecuniary bias
2. Personal bias
3. Bias as to subject matter.

1. Pecuniary Bias:

pecuniary bias arises, when the adjudicator/ judge has monetary/ economic interest in the
subject matter of the dispute/ case. The judge, while deciding a case should not have any
pecuniary or economic interest. In other words, pecuniary interest in the subject matter of
litigation disqualifies a person from acting as a judge.

Relevant leading case on this point are:

Dr. Bonham’s case - Dr. Benham was fined for practicing in the city of London without
license of the college of Physicians. According to the statute, the college is entitled to half of
the amount and the remaining goes to the King. Coke CJ. Dis- allowed the claim (fine) on the
ground that the college had a pecuniary interest. (Fine against Dr. Benham was dismissed).
The rule of pecuniary bias was laid down in the case of: Dimes v. D. J Canal

A company filed a suit against a landowner. Lord Chancellor (judge), who was a shareholder
of the plaintiff company heard the case and decided in favor of the company. On appeal, the
House of Lords quashed this decision on the ground that no man shall be judge of his own
cause. R. v. Hendon Rural District Council, Ex parte charley

In this case, one of the members of the planning commission was an estate agent and he
was acting for the applicant to whom permission was granted by the planning commission.
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The decision of the planning commission granting the permission was quashed on the
ground of pecuniary bias.

Jeejeebhoy v. Asst. Collector, in this case, it was found that one of the members of the
bench of the court was also a member of the co-operative society for which the disputed
land had been acquired.

The bench was reconstituted. Similarly, Visakhapatnam Co-operative Motor Transport Ltd.
V. G. Bangar Raju, in this case, the district collector as the chairman of the regional
transport authority granted motor permit to the above co-operative society, to which he
was also the president. The court set aside the collector's action on the ground of pecuniary
bias.

3. Personal Bias

personal bias arises from near and dear i.e. from friendship, relationship, business or
professional association. Such relationship disqualifies a person from acting as a judge.
Relevant cases on this point is A.k. kripak v. Union of India, the Supreme Court quashed the
selections made by the selection board on the ground that one of the candidates appeared
before selection committee was also a member of the selection board.

Meenglass Tea Estate v. Their Workmen, in this case, the manager of the factory conducted
inquiry against the workmen who were alleged to have assaulted him. The court disqualified
the manager on the ground of personal bias.

State of U.P v. Mohd. Nooh, in this case a departmental inquiry was held against an
employee and one of the witnesses against the employee turned hostile. The inquiry officer
then left the inquiry and gave evidence against him and thereafter resumed to complete the
inquiry and passed the order of dismissal. The order of dismissal was quashed on the ground
of personal bias.
Mineral Development Ltd. V. State of Bihar, in this case, the petitioner company was
owned by Raja Kamakshya Narain Singh. The petitioner was granted mining license for 99
years. The license was cancelled by the minister of revenue acting under Bihar Mica Act.
Raja Kamakshya Narain Singh, the owner of the company had opposed the minister and
filed a criminal case under section 500 of the Indian Penal code. The case was political
rivalry between the minister and Raja Kamakshya Narain Singh. The cancellation order was
set aside on the ground of personal bias.

Kirti Deshmankar v. Union of India, in this case, the mother- in- law of a student selected
for the admission to the medical college was vitally interested in her admission. The mother
in law was a member of the college and hospital council and she participated in the meeting
of the council. On this ground the court held that the selection of the student for the
admission to the medical college was vitiated. The court made it clear that it was not
necessary to establish bias.

Reasonable likelihood of bias was considered sufficient to vitiate the selection for admission.
In short, for vitiating the decision on the ground of bias, it is not necessary to establish bias.
It is sufficient to invalidate the decision if it can be shown that there has been reasonable
likelihood of bias.

3. Bias as to subject matte

Any interest or prejudice will disqualify a judge from hearing the case. When the adjudicator
or the judge has general interest in the subject matter in dispute on account of his
association with the administration or private body, he will be disqualified on the ground of
bias if he has intimately identified himself with the issues in dispute. To disqualify on the
ground there must be intimate and direct connection between the adjudicator and the
issues in dispute. Now the question is, whether this principle can be extended to
administrative adjudication also.

If so, no decision will be free from bias. Gullampally Nageswara Rao v. A. P.S.R.T.C, in this
case, the government proposed nationalization of motor transport. Objections for
nationalization were referred to be heard by the secretary to the Government, who upheld
the validity of the scheme (for nationalization). It was challenged on the ground that the
said secretary in fact, initiated the nationalization.

The Supreme Court held the government secretary's action invalid. K. Chelliah v. Chairman,
Industrial Finance Corporation, in this case, the disciplinary action against an employee was
taken by the chairman of the corporation. There was statutory provision for the appeal from
the chairman to the board of directors. The chairman was also a member of the board of
directors.

The chairman participated in the meeting of the board in which the appeal was considered.
The order of the board was quashed on the ground of bias. The presence of the chairman in
the meeting of the board in which the appeal was considered created a reasonable
apprehension in the mind of the party that there was real likelihood of bias. Lavanya v.
Osmania University (1999) A.P

Brief facts: lavanya wrote B.Sc. (math’s) examinations of Osmania University in 1999. In the
result, it was intimated that she failed in math’s. She applied for re-valuation. In re-valuation
she passed. She appeared for M.B.A. entrance examination in 1999 and qualified for
admission. However, Osmania University authorities refused to admit her rejecting her
application that she passed in re-valuation. She sought directions from the A.P High Court.

Judgment: The Andhra Pradesh High court gave judgment on 13-10-1999 in favor of Lavanya
and ordered the Osmania University authorities to admit her.

Exception to the rule against bias or the Doctrine of Necessity.

When bias is provided, it disqualified the adjudicator and an impartial adjudicator should
replace him. However, there are certain extreme cases in which substitution/replacement of
impartial adjudicator is not possible. In such situations, the principle of natural justice, under
necessity has to give way. Otherwise the administration of justice breaks down and there is
no other means to decide. Though Indian courts have not expressly adopted it, this
(doctrine of necessity) has been impliedly applied in several occasions. In contempt of court,
the rule that no one shall be a judge in his own cause is not followed strictly. Similarly, in
departmental enquiry in service matters the employee appoints enquiry officer and there is
every possibility that the enquiry officer acts in favor of employer. 19

3.3 Cases on nemo judex in causa sua

In a case, Uma Nath Pandey & ors. vs. State of Uttar Pradesh

The first rule is ‘nemo judex in causa sua’ or ‘nemo debet …sua’ as stated in Earl of Derby’s
case 1605 12 Co Rep 114, that is, ‘no man shall be a judge in his own cause’. Coke used the
form ‘aliquis non debet esse judex in propria natural justice in judicial process, including
therein quasi-judicial and administrative process.

In a case, Yunus Khan v. State of Uttar Pradesh and ors.

The legal maxim “nemo debet essejudex in propria causa” (no man shall be a judge in his

own…trial. Decision arrived at by such process and order founded on such decision cannot
possibly be regarded as valid or binding.”20

In a case, A.K.Kraipak Vs. UOI AIR (1970 SC 150) 

In this case, Naquishband, who was the acting Chief Conservator of Forests, was a member
of the Selection Board and was also a candidate for selection to All India cadre of the Forest
Service. Though he did not take part in the deliberations of the Board when his name was
considered and approved, the SC held that `there was a real likelihood of a bias for the
mere presence of the candidate on the Selection Board may adversely influence the
judgement of the other members'

SC also made the following observations: -

1. The dividing line between an administrative power and quasi-judicial power is quite thin
and is being gradually obliterated. Whether a power is Administrative or quasi-judicial, one
has to look into –

a) the nature of power conferred

b) the person on whom it is conferred

c) the framework of the law conferring that power

d) the manner in which that power is expected to be exercised.

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2. The principles of natural justice also apply to administrative proceedings,

3. The concept of natural justice is to prevent miscarriage of justice and it entails –

(i) No one shall be a judge of his own cause.

(ii) No decision shall be given against a party without affording him a reasonable hearing.

(iii) The quasi-judicial enquiries should be held in good faith and not arbitrarily or
unreasonably.

In this case, J.Mohopatra & Co. Vs, State of Orissa 1984 (AIR 1572, 1985 SCR (1) 322)

SC quashed the decision of the Textbooks' selection committee because some of its members
were also the authors of the books, which were considered for selection. The Court concluded
that withdrawal of person at the time of consideration of his books is not sufficient as the
element of quid pro quo with other members cannot be eliminated.

In this case, Ashok Kumar Yadav Vs. State of Haryana1987 (AIR 454, 1985 SCR Supl.
(1) 657)

Issue

Whether the selection of candidate would vitiate for bias if close relative of a members of the
Public Service Commission is appearing for selection?

Held

The SC laid down the following propositions: -

1. Such member must withdraw altogether from the entire selection process otherwise all
selection would be vitiated on account of reasonable likelihood of bias affecting the process
of selection

2. This is not applicable in case of Constitutional Authority like PSC whether Central or
State. This is so because if a member was to withdraw altogether from the selection process,
no other person save a member can be substituted in his place and it may sometimes happen
that no other member is available to take the place of such a member and the functioning of
PSC may be affected.
 3. In such a case, it is desirable that the member must withdraw from participation in
interview of such a candidate and he should also not take part in the discussions. 21

CONCLUSION

The principles of natural justice have been adopted and followed by the judiciary to protect
public rights against the arbitrary decision by the administrative authority. One can easily
see that the rule of natural justice includes the concept of fairness: they stay alive and
support to safeguard the fair dealing.

So at all the stages of the procedure if any authority is given off the judicial function is not
purely accepted but the main motive of the principal is to prevent the miscarriage of justice.
It is supreme to note that any decision or order which violates the natural justice will be
declared as null and void in nature, hence one must carry in mind that the principles of
natural justice are essential for any administrative settlement to be held valid.

The principle of natural justice is not confined to restricted walls the applicability of the
principle but depends upon the characteristics of jurisdiction, grant to the administrative
authority and upon the nature of rights affected of the individual.

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