DR.

RAM MANOHAR LOHIYA NATIONAL LAW

UNIVERSITY
2015-2016

ADMINISTRATIVE LAW
FINAL DRAFT
On
“Audi Alteram Partem: A Principle of Fundamental
Justice”
Under the Guidance Of Submitted By
Mr. Manoj Kumar Shreepath Jain (168)
Assistant Professor (Law) Enroll no-130101125
RMLNLU, Lucknow. B.A.LL.B(Hons).
 ACKNOWLEDGEMENT

I am most profoundly grateful to my teacher Mr. Manoj Kumar for

providing me this wonderful opportunity to work upon this project and
for his valuable guidance for the completion of this project.

I also thank the members of the library staff for their cooperation in
making available the books and accessing the internet even during their
free time.

Last but not the least I would also like to thank my friends. It was only
because of their excellent help that I have been able to complete my
project.
 TABLE OF CONTENTS

• Introduction

• Requisites of Fair Hearing

• Evolution and Historical Background of the Rule

• Importance of Audi Alteram Partem Rule

• Effect of Non-Application of the Rule

• Circumstances for Restriction or Exclusion of the Rule

• Conclusion

• Bibliography
 INTRODUCTION

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 is another name for commonsense justice and it does not present a watertight
classification.

Audi alteram partem is a branch of natural justice and is a Latin phrase which means ‘hear the
other side too’ or ‘no one should be condemned unheard’. It is most often used to refer to the
principle that no person should be judged without a fair hearing in which each party is given the
opportunity to respond to the evidence against them. ‘Audi alteram partem’ is considered a
principle of fundamental justice or equity in most legal systems. 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.

It is the second long arm of natural justice protecting the little man from arbitrary administrative
actions. Everything that affects a citizen in his civil life inflicts a civil consequence. Wherever an
administration action inflicts a civil consequence, principles of natural justice have to be
followed. Right to fair hearing is a code of procedure and hence covers every stage through
which administrative decision-making passes.

REQUISITES OF FAIR HEARING

This rule covers various stages through which administrative adjudication passes 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

EVOLUTION AND HISTORICAL BACKGROUND

The audi alteram partem principle is a very ancient one, deriving strength from a Biblical
passage1 and the application of this rule to judicial proceedings is beyond doubt. Where however
it is extended to non-judicial orders or to administrative orders the application of this principle is
subject to some limitations.
It was stated In Dr. Bentely’s case (1723)2 “even God himself did not pass sentence against
Adam before he was called to upon to make his defence.”
The term ‘natural justice’ expresses the close relationship between the Common Law and the
moral principles and it has an impressive history. It has been recognised from the earliest times :
it is not judge-made law. In days bygone the Greeks had accepted the principle that 'no man
should be condemned unheard. The historical and philosophical foundations of the English
concept of natural justice may be insecure, nevertheless they are worthy of preservation. Indeed,
from the legendary days of Adam and of Kautilya's Arthashashtra, the rule of law has had this
stamp of natural justice which makes it social justice.

1
Rex v Chancellor of the University of Cambridge (1973) 1 STR 557
2
Ibid
 IMPORTANCE OF AUDI ALTERAM PARTEM

The principle of audi alteram partem, i.e. no man should be condemned unheard or that both the
sides must be heard before passing any order is the second important branch of natural justice3.
A man cannot incur the loss of property or liberty for an offence by a judicial proceeding until he
has a fair opportunity of answering the case against him4. In many statutes, provisions are made
ensuring that a notice is given to a person against whom an order is likely to be passed before a
decision Is made, but there may be instances where though an authority Is vested with the
powers to pass such orders which affect the liberty or property of an individual but the statute
may not contain a provision for prior hearing.5 But what is important to be noted is that the
applicability of principles of natural justice is not dependent upon any statutory provision. The
principle has to be mandatorily applied irrespective of the fact as to whether there is any such
statutory provision or not.

LANDMARK CASES
In the famous Meneka Gandhi vs. Union of India, the Hon’ble Supreme Court discussed the
increasing importance of Natural Justice and observed that Natural Justice is a great humanizing
principle intended to invest law with fairness and to secure Justice and over the years it has
grown in to a widely pervasive rule.
The Hon’ble Supreme Court in Bar Council of India vs. High Court, Kerala6, held that principles
of Natural Justice cannot to be put in a strait jacket formula, it must be viewed with flexibility
and when there is compliant of violation of Principles of Natural Justice the Court may insists on
proof of prejudice before interfering or setting aside an order.

3
E. P. Royappa v State Of Tamil Nadu 1974 SCR (2) 348
4
Maneka Gandhi v Union of India (1978 (2) SCR 621)
5
S. L. Kapoor v Jagmohan 1981 SCR (1) 746
6
(2004) 6 SCC 311
 EFFECT OF NON-APPLICATION OF THE RULE

Any action in violation of the audi alteram partem rule is completely void and of no value. The
Hon’ble Supreme Court has held that in the absence of a notice and reasonable opportunity to a
person to meet the case against him, the order passed becomes wholly vitiated.

CIRCUMSTANCES FOR RESTRICTION/EXCLUSION OF THE RULE

In South Africa, as pointed out by de Smith ibid. at p. 157:

"The sacred maxim audi alteram partem had to be enforced unless it was clear that Parliament
has expressly or by necessary implication enacted that it should not apply or that there are
exceptional circumstances which would justify the courts not giving effect to it."

Cases in which the rule of natural justice (Audi alteram partem) is inapplicable are:

(i) Delegated Legislation

It has been held failure to comply with the rules of natural justice in course of making delegated
legislation7. The reasons are delegation legislation tends to affect large number of people, and if
all had a right to be heard system would grind to halt for lack of time and money furthermore the
process of delegated legislation seen as part of political rather than judicial system.

(ii) Master and servant

As matter of simple contract of, a servant can be dismissed without hearing8. One reason appears
that a servant owe duty only to his master, not to the public at large, and so there is no relevant
public interest which would justify an application of requirements of natural justice which is seen
as a part of public law in broad sense.

7
Bates v. Lord Haislam (1972) 1 WLR 298, 308.
8
Ridge v. Baldwin (1964) AC 40
(iii) Exclusion by statute

It is worth noting that the enactment of procedural rules which parties feels to be fair can go a
long way to reduce the complaints on the ground of procedure. Statutes sometimes allow a
person to act as decision maker despite of his having the interest in the outcome. The statute may
explicitly that the statutory code to apply to the exclusion of natural justice.

(iv)Preliminary hearing

A decision will not generally be invalidated for failure to give reasoning is merely preliminary to
a later decision for which the hearing must be given; ‘preliminary’ in the sense that no issue will
be conclusively settled by earlier hearing in a such way to prevent its being raised at later
hearing.

The recent judgment of the Supreme Court in the Bihar School Examination Board v. Subhash
Chandra Singh9 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.

The facts of the case are these: The Bihar School Examination Board, which was entrusted with
the duty of conducting Secondary School Examination, conducted the said examination, in
March, 1969, at various centres including Hanswadih centre in Sahabad District. The results for
other centres were published some time in July, 1969, but the results from that centre were
withheld and subsequently it was announced that the examinations of all subjects held there were
cancelled because of the unfair means practised on a large scale at that centre. The examinees
were therefore given the option of appearing at the Secondary School Board Examination to be
held in September, 1969.

This order was challenged in an application under Article 226 of the Constitution before the
Patna High Court, on the main ground that before cancelling the examinations the Board should

9
Bihar School Examination Board v Subhash Chandra Singh (1974) (1) SCC 648

have given the persons affected by such cancellations an opportunity of being heard. The High
Court while observing that the very high percentage of marks obtained by the candidates who
appeared at the centre gave rise to a suspicion that unfair means were practised, nevertheless
struck down the order of cancellation on the sole ground that the examinees were not given an
opportunity to show cause and thereby the well-known principle of natural justice viz.— audi
alteram partem—was not observed. In coming to this conclusion, the High Court relied on a
previous judgment of the Supreme Court in Board of High School and Intermediate
Examination, U.P., Allahabad v. Ganshyam Das Gupta2 and also on a decision of the Patna High
Court in Ajit Singh v. Ranchi University3 The Supreme Court had no hesitation in reversing the
order of the High Court. The Court was satisfied from a scrutiny of the marks obtained by the
candidates at that centre, that unfair means were practised on a very extensive scale. Their
Lordships observed that this was not a case of charging a particular candidate with having
adopted unfair means but that it was a simple question as to whether where unfair means appear
to have been practised on an extensive scale in a centre the Board would be justified in ordering
the holding of a fresh examination, without giving to every candidate affected by the order an
opportunity of being heard.

Application of the principles of natural justice can be excluded in the following cases:-

–Emergency.

–Confidentiality.

–Routine matters.

–Impracticability.

–Interim preventive action.

–Legislative action.

–No right of the person is infringed.

 CONCLUSION

The conception of natural justice should at all stages guide those who discharge judicial
functions is not merely an acceptable but is an essential part of the philosophy of the law.
We often speak of the rules of natural justice. But there is nothing rigid or mechanical about
them. The principle and procedures are to be applied which, in any particular situation or set
of circumstances, are right and just and fair. Natural justice, it has been said, is only “fair
play in action”. Thus, the soul of natural justice is fair play in action and that is why it has
received the widest recognition throughout the democratic world. In the United States, the
right to an administrative hearing is regarded as essential requirement of fundamental
fairness. And in England too it has been held that “fair play in action” demands that before
any prejudicial or adverse action is taken against a person, he must be given an opportunity
to be heard.
 BIBLIOGRAPHY

• P.P. Craig, Administrative Law, (5th edn. Sweet & Maxwell 2003)

• Massey.I.P, Administrative Law, 4th ed., Eastern Book Company.

• Jain Kagzi. M.C. The Indian Administrative Law

• V N Shukla, Constitution of India

• Carol Harlow & Richard Rawlings, Law and Administration (3rd edn. CUP

2009)

• Wade & Forsyth, Administrative Law (9th edn. OUP 2006)

• V.N. Shukla, Constitution of India (11th edn EBC 2008)

• S.P. Sathe, Administrative Law

• M.P. Jain, Principles of Administrative Law