Practice and procedure of Administrative Adjudication: Rules of Natural Justice

INTRODUCTION

‘Natural Justice’ is an expression of English Common Law having its origin in Jus natural (law of Nature.) It involves the procedural requirement of fairness. In England, it was initially applied to the courts but later projected from the judicial to the Administrative sphere. It is justice that is simple and elementary, and fair play in action.

In fact, Arthasastra of Kautilya has a reference to natural justice. In Ridge vs. Baldwin, [(1964) A C 40], the observance of natural justice was made applicable to the entire range of administrative action. The purpose of Natural Justice is the prevention of miscarriage of justice and hence is applicable to administrative inquiries. It was held that if there is no specific provision or rule to follow these principles, before taking action against an individual, the Court would read into the provision the requirement of natural Justice.

PRINCIPLE OF NATURAL JUSTICE

Principles of natural justice are those rules which have been laid down by the Courts as being the minimum protection of the rights of the individual against the arbitrary procedure that may be adopted by a judicial, quasi-judicial and administrative authority while making an order affecting those rights. These rules are intended to prevent such authority from doing injustice.

Natural Justice recognizes three principles:

1. Nemo debet essc judex in propria causa. – This means that no one should be a judge in his own cause i.e., there should be no Bias.
2. Audi alterem partem – This means ‘hear alternate party ‘ i.e., ‘no one should be condemned unheard’.
3. Speaking orders or reasoned decisions.

This aspect of natural justice requires speaking orders or reasoned decisions. It is now universally recognized that giving reasons for a certain decision is one of the fundamentals of good administration and a safeguard against arbitrariness. The refusal to give reasons may excite the suspicion that there are probably no good reasons to support the decision. Hence reasons are useful as they may reveal an error of law

The first two have come to us from the Roman Law and the third one is a recent Innovation due to the rapid development of the constitutional as well as administrative.

AUDI ALTERM PARTEM

The first limb of natural justice is based on the Latin maxim ‘Audi alterm partem’. “Hear the other side” is the essence of the principle. The authority must not hear one side, in the absence of the other or make a decision without a hearing. Being one of the principles of natural justice, it was made applicable even to administrative authority adjudicating matter having civil consequences. This means any authority or body empowered to decide the question of legal rights, of persons, should follow this rule. Otherwise, the decision would be quashed as violative of Audi alteram partem.

This rule got into prominence with Dr. Bentley’s case reported in [(1723) 92 ER 818], Dr. Bentley was a professor of great eminence. A process was sent to him by the Vice-chancellor of Cambridge University. He ignored it & remarked that the Vice Chancellor had acted like a fool. The University deprived him of his degrees. The case was nullified by the Court on the ground that Dr. Bentley was not heard. The judge Fortescue said, “Even God himself did not pass sentence upon Adam before he was called upon to make a defense”. Hence, the opportunity of being heard is the first rule of civilized jurisprudence as developed by Men & God, and “Right of hearing” is a sine qua non.

• Notice is the first limb of a proper hearing. A notice should be definite. It should specify the authority issuing the notice. It should be a hollow and barren manifestation of natural justice to say that as of right someone may be heard in defence of himself but only against an unknown charge. Hence, the charge of grounds of the proposed action must be specified in the notice. The Courts insist that sufficient time should be given to the person against whom an action is proposed to be taken to prepare his defence. The Court has struck down a notice which stated that an inquiry would be held in the next morning Notice of place, time and the proposition must be given. It must be sufficiently clear, specific, unambiguous and understandable by the concerned person.

• A fair hearing must be given to the person concerned. The object of fair hearing is to ensure that justice is done that there is no failure of justice and that every person whose rights are going to be affected by the proposed action gets a fair hearing. Adequate opportunity must be provided for an oral hearing, Documentary and oral evidence are to be considered, cross-examination must be allowed, Evidence is to be collected in the presence of both parties, He who hears must decide is a rule though not essential, there should be no malafide or vindictive tendency on the part of the Presiding Officer, speaking orders should be made giving out reasons for the findings decision.

Maneka Gandhi vs. Union [(1978) SCR (2) 621], The passport of the petitioner had been impounded by the Govt. of India “in public interest”. No opportunity had been given to her before impounding the passport. Held, this was violative of the right of hearing & held Ultra Vires. Her Fundamental right to go abroad under Art. 21 had been affected, without hearing.

RULE AGAINST BIASNESS

It is a fundamental principle that no man shall be a judge of his own cause (Nemo debet esse judex in propria causa). This principle is more popularly knowns as Doctrine OF Bias. The principle is that a judge is disqualified from determining any case in which he may, or may fairly be suspected to have an interest in the subject matter. The underlying principle is that justice should not only be done, but should manifestly and undoubtedly be seen to be done. In other words, administrative tribunals must deal with the questions referred to it without bias. In the case of A.K Kraipak vs Union of India [A.I.R. (1970) S.C. 150] (not a declaration case). The facts show that one of the members of a selection board constituted to make the selection to a Central cadre, was also a candidate for the interview. After the interview, the name of the candidate appeared at the top of the list. This was challenged as infringing the principles of natural justice. It was held that as the member was one of the persons to be considered for selection it was against all canons of justice to make him judge of his own cause. Though he did not participate in the deliberation of the committee when his name was considered, his presence in the selection board must have had its own impact on the decision of the board. It was also held that it was his interest to keep out his rivals in order to keep his position safe. It follows that the Supreme Court has declared that there need not be any actual deliberation to make it invalid.

Anything which tends or may be regarded as tending to cause a person to decide a case otherwise than on evidence must be held to be biased. The first requirement is that the judge should be impartial and natural and must be free from bias. One cannot act as judge of a cause in which he himself has some interest either pecuniary or otherwise as it affords the strongest proof against neutrality. One must be in a position to act judicially and to decide the matter objectively. If the judge is subject to bias in favor of or against either party to the dispute or is in a position that a bias can be assumed, he is disqualified to act as a judge and the proceedings will be vitiated. Justice can never be seen if a man acts as a judge in his own cause or is himself interested in its outcome. This principle applied not only to judicial proceedings but also to quasi-judicial and administrative proceedings.

Bias can be categorized into four categories.

• Personal Bias– Personal bias arises from a certain relationship between the adjudicating authority and of the parties.

• Pecuniary Bias– where the judge is shown to have a pecuniary interest in the results of the proceedings.

• Subject-matter Bias– A person shall also be disqualified from acting as a judge if he himself is a party or has some direct connection with the litigation, so as to constitute a legal interest.

• Department Bias– When the function of judge and prosecutor are combined in one department than such department shall be deemed to have a departmental bias.

EFFECT OF BREACH OF THE RULES OF NATURAL JUSTICE: action void or voidable

The terms “void” and “voidable” are the terms which basically find a place in the law of contract. A voidable order is an order which is legal and valid unless it is set aside by a competent court at the instance of an aggrieved party. On the other hand, a void order is not an order in the eye of law It can be ignored, disregarded. disobeyed or impeached in any proceeding before any Court or tribunal. It is a still-born order, a nullity, and void ab initio.

In Ridge vs. Baldwin, [(1964) A C 40], It was pointed out that the violation of the rule of natural justice by an administrative authority makes the decision void and not voidable Since the decision of Ridge’s case a controversy has arisen as to the nature of an order in violation of the principles of natural justice.

In India, the Courts have taken the view that whenever there is a violation of any rule of natural justice, the order is null and void in Board of High school vs. Gyan Shyam [A.I.R. (1962) SC 1110], A student who was charged with malpractice in an examination, was not given a reasonable and fair opportunity to be heard in defense. The order debarring him was quashed stating as violative of the principles of natural justice, In Nawahkhan vs. State of Gujrat. [A.I.R. (1974) SC 1471] an order of externment was passed against the Petitioner on September 5, 1967, under the Bombay Police Act, 1951. In contravention of the said order, the Petitioner entered the forbidden area on September 17, Q67 and was therefore prosecuted for the same. During the pendency of the criminal case, the order of externment was quashed by the High Court under Article 226 of the Constitution on July, 16. 1968. The trial Court acquitted the Petitioner but the High Court convicted him because according to the High Court, contravention of the externment order took place when the Order was still operative and was not quashed by the High Court. Reversing the decision of the High Court, the Supreme Court held that as the externment order was held to be illegal and unconstitutional was of no effect and the Petitioner was never guilty of flouting an order which never legally existed. Krishna Iyer.J, rightly observed that nullity is the consequence of unconstitutionally and so without going into the larger issue and its plural divisions, we may roundly conclude that the order of an administrative authority charged with the duty of complying with natural justice in the exercise of power before restricting the fundamental right of a citizen is void ab initio and of no legal efficacy. An order is null and void if the statute clothing the administrative tribunal with power conditions it with the obligation to hear, expressly or by implication.

In answering the question as to what relief the individual is entitled to at the hands of the court when the failure of natural justice has occurred, it is that pragmatic considerations should prevail rather than trying to answer the question by applying such obtuse words as “void” and “voidable” or conceptual logic. The cases do not depict a uniform approach in the matter of giving ultimate relief by the court when the failure of natural justice including giving of reasons has occurred. In the matter of failure of Audi alteram partem the courts have adopted any of the three alternatives as the justice of the situation demanded— simply quashing the order, not quashing the order but maintaining the status quo and directing the government to give a hearing, and finally not only quashing but prohibiting the government from reconsidering the matter. Further, the Supreme Court has wavered in giving further relief naturally flowing from the quashing of the order. As far as failure to give reasons is concerned, where the reasons have neither been supplied to the party nor to the court, the task of the judiciary is somewhat easy. The courts have more or less quashed the administrative order. In such a case, there is not the only failure of natural justice but the non-communication of reasons may be indicative of the fact that the authority has not applied its mind to the matter. Where, however, the reasons have been given to the court, though not to the party, the cases do not depict a uniform approach. In a number of cases, the court has upheld the administrative order once it is satisfied that the reasons placed before the court justified the same. There are a few cases also to the contrary. Here perhaps the matter may have to be decided on the basis of justice but the concept of justice is a fluid and fleeing one.

By – Aanchal Kalra

(Lloyd Law College)

SOURCES

• Effect of failure of natural justice: ultimate relief by SN Jain
• SCC ONLINE
• U.P.D Kesari, Administrative Law
• M.P. JAIN, Cases and material on Administrative Law

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