Akshat Brahmchari

PRN 19010224051

Answer 1
INTRODUCTION 

Rules of Natural Justice are rational and appeals to the basic sense of man. Natural Justice is
mainly embedded in the conscience of a common man and is independent of the codified law.
It is adhered by all the administrative, judicial, and quasi-judicial body with utmost
importance to enforce rule of law, accountability in administrative authority and to show
regard for human dignity. These principles are those rules which have been laid down by the
court to protect the common man against arbitrary use of power by an administrative body. 

According to the traditional English Law the two principles of natural justice are:

i. Nemo in propria causa judex, esse debet- It is known as the rule against bias; or the rule
where no one is to be made judge in his own cause.

ii. Audi alteram partem- Both the sides should be given adequate opportunity to be heard or
the rule of fair hearing.

Procedural fairness is deeply rooted in the legal system across the globe. It is believed, the
earliest expression of natural justice mainly originated in ancient Rome as ‘jus naturale’ used
by Roman jurists; and was later known as the ‘Common Law’ in England, ‘Due Process’ in
US, ‘Dharma’ in India and ‘proportionality’ in Civil-law countries. The first statutory
recognition of natural law was through Magna Carta, 1215 and it heavily influenced England
to incorporate these principles in the legal system as it provided the citizens with natural
rights and safety from any kind of injustice. 

The expression ‘natural justice’ is not mentioned in the Indian Constitution but the concept of
these rules are enshrined in the Preamble as social and economic justice; which is the idea of
fairness in social and economic activities of the society which  is the crux of natural justice.
The Supreme Court affirmed that rules of natural justice must be read with the provision of
law, and it is indispensable where the rule excludes the application of principles of natural
justice.

AUDI ALTERAM PARTEM 

In the present case we would be dealing with the concept of Audi alteram partem, This Latin
maxim means, “let the other side be heard”, which means both sides in a case should be given
fair and adequate opportunity to defend oneself. Any person can be wrongfully convicted
unless given a reasonable opportunity to prove his innocence, therefore to remove this
ineffectiveness and to improve the administrative efficiency this rule of natural justice is
applied as the sine qua non of civilized society. In the infamous Dr. Bentley Case (1723) 93
ER 698 (K) , the Court of King’s Bench held that the University of Cambridge could not
cancel the degree of great but rebellious student without giving him an opportunity to defend
himself.
It has been held in the case of Maneka Gandhi v Union of India AIR 1978 SC 597, The
components of fair hearing are not fixed but are flexible and variable and their scope and
applicability differs from case to case, contracting into a brief, even post decisional
opportunity or expanding into trial type trappings. However, natural justice is not an unruly
horse. 

It has been held in the case of The Chairman, Board of Mining Examination and Chief
Inspector of Mines v Ramjee AIR 1977 SC 965; The concept of natural justice is of variable
content and imposes variable procedural norms from case to case. Natural justice depends on
the circumstances of the case, the nature of the inquiry, the rules under which the tribunal is
acting, the subject matter that is being dealt with and so forth.

It has been held in the case of Delhi Transport Corpn. v. D.T.C. Mazdoor Congress [1991
Supp (1) SCC 600 : 1991 SCC (L&S) 1213 : AIR 1991 SC 101 and Basudeo Tiwary v. Sido
Kanhu University, (1998) 8 SCC 194 - The law is settled that non-arbitrariness is an essential
facet of Article 14 pervading the entire realm of State action governed by Article 14. It has
come to be established, as a further corollary, that the audi alteram partem facet of natural
justice is also a requirement of Article 14, for natural justice is the antithesis of arbitrariness.
In the sphere of public employment, it is well settled that any action taken by the employer
against an employee must be fair, just and reasonable which are the components of fair
treatment. The conferment of absolute power to terminate the services of an employee is an
antithesis to fair, just and reasonable treatment. 

ANALYSIS 

In Hira Nath Mishra v. Principal, Rajendra Medical College , 62 the denial of opportunity to
cross-examine the material witnesses was held not to vitiate the order made. It was a case
where certain male students entered a girls' hostel during the night and misbehaved with the
girls. The committee appointed to enquire into the matter recorded the statements of the girls
in camera and used them (on the question of identity of the miscreants) against the appellants
without allowing them to cross-examine the girls on the ground that such a course would
reveal the identity of the girls and would expose them to further indignities and also because
the enquiry was held by a committee of responsible persons.

The requirements of natural justice must depend on the circumstances of the case, the nature
of the inquiry the rules under which the authority is acting, the subject-matter that is being
dealt with, and so forth. Whatever standard is adopted, one essential is that the person
concerned should have a reasonable opportunity of presenting his case." More recently in
Byrne v. Kinematograph Renters Society Ltd. 1958 2 All ER 579 Harman, J. observed "what,
then, are the requirements of natural justice in a case of this kind? First, I think that the
person accused should know the nature of the accusation made; secondly that he should be
given an opportunity to state his case; and thirdly, of course, that the tribunal should act in
good faith. I do not think that there really is anything more".

In the present case, the accused Kaushik was absent during the inquiry, however it is clearly
proved beyond a reasonable doubt from his conduct that he was not shying away from the
inquiry. From the aforementioned authority it is amply clear that the right to be heard to
present one’s case is his fundamental right, hence he has a ground to challenge the order of
the university, and has a right to present his case.

Moreover in the present case, a reasoned order was not passed by the principal or the Inquiry
authority, The importance of ‘reason’ in the legal system is to connect the dots between facts
and decision; it helps in establishing precedents to the system therefore it adds more
certainty. Reasons provided must be clear, cogent and succinct. This feature works on two
principles; firstly, if lower body has given adequate reasons and higher body is affirming that
decision then it is not necessary to provide anymore reasons but if the higher body is altering
lower body’s decision then reasons must be provided. Secondly, if the higher body is
affirming lower body’s decision who has not given adequate reasons then the latter must
provide with it.

In the case of Eurasian equipment and chemicals limited vs. State of West Bengal, all the
executive engineers were blacklisted. Supreme Court held that without giving a valid and
reasonable ground the administrative body cannot blacklist anyone on blanket orders; further
the individual who has been show caused should be given a fair opportunity to be heard.
The recent judgment of the Supreme Court in the Bihar School Examination Board v.
Subhash Chandra Singh will be welcomed with relief not only by the Universities and other
educational authorities but also by legal circles where it was felt that the rule of audi alteram
partem was being stretched too far and that some restriction should be made on the
application of the principle.

However, it was also stated by the Inquiring authority that if there is absence during the said
inquiry it would lead to an ex parte decision would be given. Hence, until and unless
compelling and humanitarian reasons are produced before the Vice chancellor regarding his
absence he may not be allowed to produce Kavita as a witness.

Building on that he has a right to bring Kavita as a witness before the Vice chancellor for a
limited purpose only and with complete boundaries that she may only testify with regard to
the fact that she was aware and was supposed to inform the Inquiry authority that Kaushik
would be absent on the day the inquiry was considered. only if he has compelling reasons and
grounds for challenging the said order, as he was aware that his absence would lead to an
exparte order being passed, If he does not have any compelling reasons or grounds for his
absence, he may not be permitted to produce Kavita as a witness.However she may not be
forced to testify with regard to the incident.
Answer 2

This present instance is a clear example of delegated legislation given to the Cane
commissioner giving him power to legislate with in exercise of the powers conferred under
clause (8) of the Sugarcane (Control) Order, 1966. Many statutes mention who the
power needs to be delegated to such as in the given situation. This act of the cane
commissioner is legislative rather than administrative or executive.

Delegation has been defined by Black’s Law Dictionary as an act of entrusting a person with
the power or empowering him to act on behalf of that person who has given him that power
or to act as his agent or representative. Delegated legislation means exercising of legislative
power by an agent who is lower in rank to the Legislature, or who is subordinate to the
Legislature.

In Hamdard Dawakhana and Another v. Union of India and Others1 , this Court held:

Thus when the delegate is given the power of making rules and regulations in order to fill in
the details to carry out and subserve the purposes of the legislation the manner in which the
requirements of the statute are to be met and the rights therein created to be enjoyed it is an
exercise of delegated legislation.

Thus, a delegate of the legislature is conferred with the power to make rules and regulations
to carry out the purposes of the legislation and such rules and regulations are called delegated
legislation or subordinate legislation.

The Supreme Court has also laid down the grounds on which such delegated legislation or
subordinate legislation can be challenged in the Court. In Indian Express Newspapers
(Bombay) Private Ltd. and others v. Union of India and Others2, this Court has observed “ A
piece of subordinate legislation does not carry the same degree of immunity which is enjoyed
by a statute passed by a competent Legislature. Subordinate legislation may be questioned on
any of the grounds on which plenary legislation is questioned. In addition, it may also be
questioned on the ground that it does not conform to the statute under which it is made. It
may further be questioned on the ground that it is contrary to some other statute. That is
because subordinate legislation must yield to plenary legislation. It may also be questioned
1
HamdardDawakhana and Another v. Union of India and Others, AIR 1960 SC 554.
2
Indian Express Newspapers (Bombay) Private Ltd. and others v. Union of India and Others ,(1985) 1 SCC 641.
on the ground that it is unreasonable, unreasonable not in the sense of not being reasonable,
but in the sense that it is manifestly arbitrary.”3

The case of Laxmi Khandsari Etc. Etc v. State Of U.P. & Ors4 the facts were very similar. An
order was made under the power delegated by Sugarcane (Control) Order 1966 cl 8 passed
under the Essential Commodities Act 1955 s 3. Sugarcane Order 1966cl 8 conferred on the
Central Government to make orders, issue directions to various persons connected with the
production of khandsari sugar or crushers of sugarcane. Power under the order were
delegated to the cane commissioner who made the impugned order. Clause 8 was challenged
as invalid on the ground that it gave no guidance to the delegate. Rejecting the argument, the
court observed that the Sugarcane Control Order contains sufficient guidelines, checks and
balances to prevent any misuse or abuse of the power conferred on the authorities. Also, the
power could not be deemed to be arbitrary or unguided because the impugned notification
derives its source from the Essential Commodities Act 1955 s 3 which clearly lays down
sufficient guidelines

This brings us to the main question as to the circumstances under which restrictions imposed
by the State can be said to contain the quality of reasonableness. The petitioners in this case
argued the notification, as also the Control order under which it was passed are clearly
violative of Article 19(1) (g) and the restrictions purported to be placed on the rights of the
petitioners do not contain the quality of reasonableness. The petitioners further argued that
there is absolutely no rational nexus between the prohibition contained in the notification
preventing the crushers of the petitioner from working them and the object sought to be
achieved by it.

The respondents argued that an order passed under Clause 8 of the Control Order is one of a
legislative character and therefore the question of the application of the principles of natural
justice to it does not arise. Further, the notification does not violate Article 14 or Article 19
because it is in great public interest and is aimed at maintaining and securing proper and

3
Ibid.

4
Laxmi Khandsari Etc. Etc v. State Of U.P. & Ors, AIR 1973 SC 1260
equitable distribution of sugar in view of the nation-wide shortage of the commodity. The
notification is justified by the fact that recovery of sugar from sugar-cane in case of khandsari
units run by power crushers is between 4 to 6 per cent whereas in the case of sugar factories it
ranges between 9 1/2 to 11 1/2 percent, so that utilisation of sugar-cane in the case of mills is
double that of the power crushers. In these circumstances, khandsari units and mills belong to
two different classes which cannot be said to be similarly situate so as to attract Article 14.
They are talking about intelligible differentia.

The Supreme Court rejected the contention of the sugarcane crushers that before issuing an
order banning crushing of sugarcane, the Administration ought to have consulted them. The
Court said that such an order being a 'legislative measure' "the rules of natural justice stand
completely excluded and no question of hearing arises." Nevertheless, the Court suggested as
a guideline for the future that while imposing such a ban, the Government "may consider the
desirability of giving a bare minimum hearing," if not to all owners of khandsari units, at
least to one representative of the association representing them and getting his views on the
subject. If the matter is urgent and hearing may not be possible, at least a representation
against the proposed action may be called for from such an association and considered. Said
the Court: "Not that such action is a legal requirement but it will generate greater confidence
of the persons who may be affected by an order to be passed against them.”

The Supreme Court seeks to ward off the challenge to the sub-delegated legislation on the
ground of lack of guidelines to the sub-delegate by emphasizing upon the high statuts of the
delegate. In Laxmi Khandsari, mentioned above, power sub-delegated to the Central
Government was held valid on the ground inter alia that the Central Government being a very
high authority, it must be presumed to act in a just and reasonable manner. Regarding this a
case had been mentioned where- the power is vested in a very high authority, it cannot be
assumed that it is likely to be abused. ON the other hand, where the power is conferred on
such a high authority as the Central Government, the presumption will be that the power will
be exercised in a bona fide manner and according to law.5

5
"V. C. Shukla v. State (Delhi Admn.), 1980 SCC (Cri) 695