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Principles of Natural Justice
Principles of Natural Justice
PRINCIPLES
OF NATURAL
JUSTICE
PRINCIPLES OF NATURAL JUSTICE
In India there is no statute laying down the minimum procedure which administrative
agencies must follow while exercising decision-making powers. This minimum fair
procedure refers to the principles of natural justice
In a welfare state like India, the role and jurisdiction of administrative agencies is
increasing at a rapid pace. The concept of Rule of Law would loose its validity if the
instrumentalities of the State are not charged with the duty of discharging these
functions in a fair and just manner.
In India, the principles of natural justice are firmly grounded in Article 14 & 21 of the
Constitution. With the introduction of concept of substantive and procedural due
process in Article 21, all that fairness which is included in the principles of natural
justice can be read into Art. 21. The violation of principles of natural justice results in
arbitrariness; therefore, violation of natural justice is a violation of Equality clause of
Art. 14.
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.
RULE AGAINST BIAS (NEMO JUDEX CAUSA SUA)
b) Justice should not only be done but manifestly and undoubtedly be seen to be
done.
Thus a judge should not only be impartial but should be in a position to apply his mind
objectively to the dispute before him.
The rule against bias thus has two main aspects: -
1. The administrator exercising adjudicatory powers must not have any personal or
proprietary interest in the outcome of the proceedings.
2. There must be real likelihood of bias. Real likelihood of bias is a subjective term,
which means either actual bias or a reasonable suspicion of bias. It is
difficult to prove the state of mind of a person. Therefore, what the courts see is
whether there is reasonable ground for believing that the deciding factor was
likely to have been biased.
Personal Bias
Pecuniary Bias
Subject-matter bias
Departmental bias
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: -
(iii) The quasi-judicial enquiries should be held in good faith and not
arbitrarily or unreasonably.
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.
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 principle of audi alteram partem is the basic concept of principle of natural justice.
The expression audi alteram partem implies that a person must be given opportunity to
defend himself. This principle is sine qua non of every civilized society.
This rule covers various stages through which administrative adjudication pasees starting
from notice to final determination. Right to fair hearing thus includes:-
1. Right to notice
2. Right to present case and evidence
3. Right to rebut adverse evidence
(i) Right to cross examination
(ii) Right to legal representation
4. Disclosure of evidence to party
5. Report of enquiry to be shown to the other party
6. Reasoned decisions or speaking orders
Post decisional hearing means hearing after the decision is reached. The idea of post
decisional hearing has been developed by the SC in Maneka Gandhi Vs. UOI to
maintain the balance between administrative efficiency and fairness to the individual.
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.
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
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 . Under section 15 of IDRA, an
undertaking can be taken over after making an investigation into its affairs. But u/s 18-
AA, a take over 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: -
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, a circular was issued by the Govt. on taking over the company
prejudicially altering the terms and conditions of its employees w/o affording an
opportunity of hearing to them. The SC observed that "In our opinion, the post
decisional opportunity of hearing does not subserve 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."
It can be concluded that pre-decisional hearing is the standard norm of rule of audi
alteram partem. But post-decisional hearing atleast affords an opportunity to the
aggrieved person and is better than no hearing at all. However, post-decisional hearing
should be an exception rather than rule. It is acceptable in the following situations:_
1. where the original decision does not cause any prejudice or detriment to the
person affected;
2. where there is urgent need for prompt action;
3. where it is impracticable to afford pre-decisional hearing.
In Town Area Committee Vs. Jagdish Prasad , the department submitted the charge, got
an explanation and thereafter straightaway passed the dismissal order. The court quashed
the order holding that the rule of fair hearing includes an opportunity to cross-examine
the witness and to lead evidence.
In Hira Nath Misra Vs. Principal, Rajendra Medical College the court disallowed the
opportunity of cross-examination on the grounds of practicability. The SC rejected the
contention of the appellants that they were not allowed to cross-examine the girl students
on the ground that if it was allowed no girl would come forward to give evidence, and
further that it would not be possible for the college authorities to protect the girl students
outside the college precincts.
Where, however, witnesses depose orally before the authority, the refusal to allow cross-
examination would certainly amount to violation of principles of natural justice.
It can thus be concluded that right to cross-examine is an important part of the principle
of fair hearing but whether the same should be allowed in administrative matters mainly
depends on the facts and circumstances of the case.
RIGHT OF LEGAL REPRESENTATION
a) the lawyers tend to complicate matters, prolong hearings and destroy the
essential informality of the hearings.
b) it gives and edge to the rich over the poor who cannot afford a good lawyer.
The courts in India have held that in following situations, some professional assistance
must be given to the party to make his right to defend himself meaningful: -
a) Illiterate
b) Matter is technical or complicated
c) Expert evidence is on record
d) Question of law is involved
e) Person is facing trained
prosecutor
The courts have observed in few cases that it would be improper to disallow legal
representation to the aggrieved person where the State is allowed to be represented
through a lawyer. In Nandlal Bajaj Vs. State of Punjab, the court allowed legal
representation to the detainee through a lawyer despite Section 8(e) of COFEPOSA
specifically denied legal representation in express terms because the State had been
represented through a lawyer.
In India, unless there is specific requirement of giving reasons under the statute, it is not
mandatory for the administrative agencies to give reasons for their decisions.
Reasons are the link between the order and mind of the maker. Any decision of the
administrative authority affecting the rights of the people without assigning any reason
tantamounts to violation of principles of natural justice.
The requirement of stating the reasons cannot be under emphasized as its serves the
following purpose: -
1. It ensures that the administrative authority will apply its mind and objectively
look at the facts and evidence of the case.
2. It ensures that all the relevant factors have been considered and that the irrelevant
factors have been left out.
3. It satisfies the aggrieved party in the sense that his view points have been
examined and considered prior to reaching a conclusion.
4. The appellate authorities and courts are in a better position to consider the appeals
on the question of law.
In short, reasons reveal the rational nexus between the facts considered and the
conclusions reached.
However, mere recording of reasons serves no purpose unless the same are
communicated either orally or in writing to the parties. In fact mere communication of
reasons has no meaning unless the corrective machinery is in place.
Whether the reasons should be recorded or not depends on the facts of the case.
In other words, the citing of reasons is not mandatory where the disciplinary authority
merely agrees with the report of enquiry officer.
S.N.Mukherjee Vs. UOI
Issue
Whether it was incumbent upon the Chief of Army Staff to record the reasons of the
orders passed by him while confirming the findings and the sentence of the CG
Observed
SC observed that
The reasons cited would enable the court to effectively exercise the appellate or
supervisory powers.
The reasons would produce clarity in the decisions and reduce arbitrariness.
Held
U/s 162 of the Army Act, the reasons have to be reached only in cases where the
proceedings of a summary court martial are set aside or the sentence is reduced and not
when the findings and sentence are confirmed. Thus requirement of recording reasons
cannot be insisted upon at the stage of consideration of post-confirmation petition by the
CG.
Order passed by MRTPC, a quasi judicial body - Clauses in agreement with the dealers
are found to be offensive and resulting in RTP - No reasons were cited - Co. filed appeal
before SC - SC held that the order suffers from an error of law apparent from the face of
it as no reasons have been given.
REPORT OF ENQUIRY REPORT TO BE SHOWN TO THE OTHER PARTY
Whether a copy of enquiry report must be submitted to the delinquent employee before
passing the order?
Until 1987, there was no precedent or law which made it obligatory, in all cases, for the
disciplinary authority to serve a copy of the enquiry report on the delinquent before
reaching a final decision. For the first time in 1987, full bench of CAT held that failure to
supply a copy of the enquiry report to the delinquent before recording a finding against
him is obligatory and failure to do so would vitiate the enquiry. (P,K,Sharma Vs, UOI)
The SC in 1973 considered this question in Keshav Mills Co. Ltd. Vs. UOI.
Facts
Appellant Co. after doing business for 30 years closed down. 1200 persons unemployed -
On the basis of commission to enquire into the affairs of the co. u/s 15 of IDRA, GOI
passed an order u/s 18-A to take over the mill. Challenged before SC on the ground that
enquiry report not submitted
Held
If the non-disclosure of the report causes any prejudice in any manner to the party, it
must be disclosed, otherwise non-disclosure would not amount to violation of
principles of natural justice.
In UOI Vs. Mohd. Ramzan Khan (1991) a bench of 3 judges held that non-furnishing of
the enquiry report would amount to denial of the principles of natural justice.
In Managing Director, Electronic Corporation of India Limited Vs. B.Karunakar SC
laid down the all-important guidelines on this issue: -
However, the rule laid down in Mohd. Ramzan Khan case will not apply if the
disciplinary authority itself is the hearing/enquiry officer.
EXCEPTIONS TO PRINCIPLES OF NATURAL JUSTICE
1. Exclusion in legislative work: ‘Legislative process' refers to the
process of deliberate law-making by a person or body of
persons recognized by a particular legal system as having power
and authority validly to make the law. Principles of Natural
Justice cannotbe raised in the matter of legislative action. If the
Legislature, in the exercise of its plenary power under Article
245 of the Constitution, proceeds to enact a law, those who
would be affected by that law cannot legally raise a grievance
that before the law was made, they should have been given an
opportunity of hearing
2. Exclusion in case of Emergency: In India, it is generally
acknowledged that in cases of extreme urgency, where the
public interest is at risk due to the potential delay or publicity
associated with a formal hearing, a pre-condemnation hearing
will not be required by natural justice. Also, in exceptional cases
of emergency in which immediate, preventive, or remedial
actions are needed, the requirement of notice and hearing is set
aside.
3. Statutory exclusion: When any statute prohibits the use of
natural justice standards through an express arrangement or
fundamental ramifications, the courts must comply with the
mandate of the legislature. Any statutory exclusion of
procedural fairness will be construed strictly. Thus, where a
statutory provision did not expressly or by necessary implication
exclude the right to legal professionals’ privilege, the provision
was interpreted not to do so.
4. Academic adjudication: In situations where the authority is
purely administrative, the entitlement to a right of hearing may not
be applicable. In the case of Jawaharlal Nehru University v. B.S.
Narwalxviii, B.S. Narwal, a student at JNU, was removed from the
academic rolls due to unsatisfactory academic performance,
without being granted a pre-decisional hearing. The Supreme
Court, in its ruling, emphasized that the inherent nature of
academic adjudication seems to negate any inherent right to an
opportunity to be heard. It was held that if competent academic
authorities meticulously examine and assess a student's work over
a period, subsequently declaring it unsatisfactory, the principles of
natural justice may be excluded in such academic matters.
5.Prohibition in the event of Public Interest: Any act or thing done
against the interest of the general public is void ab initio. In
situations in which immediate actions are needed in public interest
or public morality, the requirement of notice and hearing may be
excluded.
6. Exclusion in case of confidentiality: Circumstances in which
confidentiality is demanded and is necessary principles of natural
justice may be excluded from consideration. In the case of Malak
Singh v. State of Punjab and Haryanaxix, the Supreme Court ruled
that the Surveillance Register maintained by the Police is
confidential. This means that neither the person whose name is
listed in the register, nor any other member of the public can
access it. The Court also noted that applying the principles of
natural justice in such cases might undermine the purpose of
surveillance. There's a risk that trying to be fair in such situations
could end up defeating the goals of justice rather than serving
them.