RESEARCH ARTICLE ON ADMIISTRATIVE LAW

TITLE: PRINICPLE OF NATURAL JUSTICE

SUBMITTED BY – KISHITA GUPTA

SUBMITTED TO – MR. JEHIRUL ISLAM

SEMESTER – 5

BATCH – (2017-22)

SECTION – CR B

ROLL NO. – 10
 DECLARATION

The text reported in the project is the outcome of my own efforts and no part of this project
assignment has been copied in any unauthorized manner and no part of it has been incorporated
without due acknowledgment.

I have projected and studied the principles of natural justice, its meaning and its evolution along
with its genesis in the Indian laws. The history of these laws and its inspiration and the
comparison with the Foreign Laws are also further explained in the present paper.

Kishita Gupta

Semester 5

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 TABLE OF CONTENTS

1. RESEARCH METHODOLOGY
a) DATA SOURCES
b) RESEARCH OBJECTIVES
c) METHOLOGY
2. INTRODUCTION
a) MEANING AND EVOLUTION OF NATURAL JUSTICE
b) NATURAL JUSTICE IN TH CONSTITUTION OF INDIA
3. PRINCIPLE OF NATURAL JUSTICE
a) NEMO DEBET ESSE JUDEX IN PROPRIA CAUSA
b) AUDI ALTERAM PARTEM
c) DUTY TO ACT JUDICIALLY OR TO ACT FAIRLY
d) RIGHT TO NOTICE
e) RIGHT TO KNOW THE EVIDENCE AGAINST HIM
f) RIGHT TO PRESENT CASE AND EVIDENCE
g) RIGHT TO REBUT ADVERSE EVIDENCE
h) CROSS-EXAMINATION
i) LEGAL REPRESENTATION
j) REPORT OF THE INQUIRY TO BE SHOWN TO THE OTHER PARTY
4. EXCLUSION OF THE PRINCIPLES OF NATURAL JUSTICE
5. EFFECT OF BREACH OF RULES OF NATURAL JUSTICE
6. CONCLUSION

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 RESEARCH METHODOLOGY
DATA SOURCES

 The data is purely secondary in nature and the knowledge has been
obtained only through various articles available on various websites,
books and journals.
 There is no scope to collect primary data in any form as the topic is
theoretical in nature and does not include any kind of questionnaire to be
filled.

RESEARCH OBJECTIVES

The objective of this dissertation is

 To study the International perspective on the principles of Natural Justice

 To understand the Indian laws in this respective and the scope as well as
the limitations.

 To understand the role of Judiciary while dealing with the matters related
to the principles of natural justice.

RESEARCH METHODOLOGY

The research commences by searching for articles related to the topic. Then
having a detailed knowledge of the same. The research methodology applied is
‘Non-Doctrinal’ as well as ‘doctrinal’ one, where all the referred material has
been taken from various library resources such as books, articles, journals,
cyberspace, and legal databases, and practical or fieldwork has been done. It will
involve secondary data such as various Acts, Rules and regulations, Judgements,
Articles, Published Reports, Books and Journals.

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 INTRODUCTION

MEANING AND EVOLUTION OF NATURAL JUSTICE:

Justice is of two types namely Legal Justice and Natural Justice. Legal justice refers to justice
governed by the law of the state and natural justice refers to moral justice and is governed by
the Laws of Equity. Justice done to one should not seem injustice to another. So the goodness
of a law is in maximizing the pleasure of the beneficiaries with minimized pain to the others.1
This concept has its origins in English law and reflects the close connection between common
law and moral principles. The expressions natural justice and legal justice do not present a
watertight classification. It is the substance of justice which is to be secured by both, and
whenever legal justice fails to achieve this purpose, natural justice is called in aid of legal
justice.

Rules of natural justice have developed with the growth of civilization, and the content thereof
is often considered as a proper measure of the level of civilization and rule of law prevailing in
the community.2

According to Aristotle, law inspired by reason is a natural law and whenever the general
preposition of legal law is found to work hard to a particular case, equity must be applied to
mitigate and rectify the harshness. It’s the natural law that provides the framework of principles
and it is left to the legal law to supply flesh and blood to the legal system.

The underlying object of natural justice is not only to secure justice, but also to prevent
miscarriage of justice, thus ensuring that fundamental liberties and rights of citizens are well-
protected.3

Principles of natural justice constitute one of the most important concepts of administrative
law. The expression ‘natural justice’ has been interpreted to cover several rules of equity and
fair play and is sometimes also referred to as ‘substantial justice’, ‘universal justice’ and ‘fair
play in action’.

1
Alexander T C, “Principles of Natural justice”
2
K.I.Shepard v. Union of India (1987) 4 SCC 431, 448, per R.N. Misra J.
3
H. D. Pithawalla, “Administrative Law” 79 (C. Jamnadas & Co., Mumbai, 1 st edn., 2012)
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In order to protect himself against the excesses of organized power, man has always appealed
to someone beyond his own creation. Such someone could only be God and His laws, divine
law or natural law, to which all temporal laws and actions must conform. This is the origin of
the concept of natural justice. However, natural justice is not justice of the nature where the
lion devours the lamb and the tiger feeds upon the antelope. Natural justice is of the “higher
law of nature” or “natural law” where the lion and the lamb lie down together and the tiger
frisks with the antelope. Its essence is good conscience in a given situation; nothing more and
nothing less.4

NATURAL JUSTICE IN THE CONSTITUTION OF INDIA:

The principles of natural justice have enriched law and constitutions the world over. Though
the Indian Constitution does not use the expression of natural justice, the concept of natural
justice divested of all its metaphysical and theological trapping pervades the whole scheme of
the constitution. The concept of social and economic justice, in the preamble of the constitution,
is the concept of fairness in social and economic activities of society, which is the basis of
natural justice.

Art.311 of the Constitution contains all the principles of natural justice without using the
expression as such. The duty to act fairly is a part of fair procedure, envisaged under Art.14
and Art.21. Every activity of a public authority or those under public duty or obligation must
be informed by reason and guided by public interest. The principles of natural justice are firmly
grounded in Articles 14 and 21 of the constitution.

PRINCIPLES OF NATURAL JUSTICE

For some three or four hundred years, Anglo-American courts have actively applied two
principles of natural justice. However, this reduction of the concept of natural justice to only
two principles should not be allowed to obscure the fact that natural justice goes to the very
kernel of the problem of administrative justice. The two principles are as follows:

 Nemo debit esse judex in propria causa (No man can be a judge in his own cause)

 Audi alteram partem (no person shall be condemned unheard)

4
Union of India v. Tulsiram Patel (AIR 1958 SC 1416)

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Also, to these two principles now transparency and good-governance may be added as a new
dimension which includes the duty to pass a speaking order.5

NEMO DEBET ESSE JUDEX IN PROPRIA CAUSA:

The principal requirement of this rule is that the person who judges- whether he is a judge or
an administrative authority- should be impartial and free from any kind of bias. He cannot
adjudicate a cause in which he himself has any kind of interest. It is only if he is neutral that he
can decide the matter objectively.

The object is not merely that the scales (of justice) be held evenly, but it is also necessary that
they may not appear to be inclined.6 If a judge or adjudicating authority is biased either in favor
of one party or against the other, he cannot be expected to do justice in the matter. Such a
person is disqualified from adjudicating and since such proceedings stand vitiated, any decision
taken by him is liable to be set aside.

This maxim is based on three well-known principles, viz:

 No man can be a judge and prosecutor at the same time

 It is not enough that justice is done; it is also necessary that it must be seen to be done

 Judges should always be above suspicion.

AUDI ALTERAM PARTEM:

Audi alteram partem is the basic concept of the principles of natural justice. It means that both
sides must be heard before passing any order. It signifies that no man can be condemned
without a hearing. It is a fundamental principle of natural justice that before an order is passed
against a person, he should be given an opportunity to be heard in the matter.

In administrative law, this is the principle which protects the individual from arbitrary
administrative actions whenever his right to person or property is jeopardized. thus, one of the
objectives of giving a hearing in application of the principles of natural justice is to see that an
illegal action or decision does not take place. Any wrong order may adversely affect a person,

5
Haryana Financial Corporation v. Kailash Chandra Ahuja [(2008) 9 SCC 31]
6
R v. Bath Compensation Authority [(1925) 1 K.B. 635]
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and it is essentially for this reason that a reasonable opportunity may have to be granted before
passing an administrative order.7

This principle has been applied to administrative actions to ensure fair play and justice to
affected persons. However, the doctrine is not the cure to all ills in the process. Its application
depends upon the factual matrix to improve administrative efficiency, expediency and to mete
out justice. The procedure adopted must be just and fair.8

The corollary deduced from this principle is quite a liquid statuerit parte inaudita altera,
aequum licet dixerit, haud aequum facerit (he who shall decide anything without the other side
having been heard, although he may have said what is right, will not have done what is right.)
As stated earlier, this principle is not of some importance but is of fundamental importance that
justice should not only be done but also manifestly ad undoubtedly seem to be done. Practically
speaking, this maxim covers two things:

 Giving notice to the affected person

 Giving him a fair hearing

Even if the legislature specifically authorizes an administrative action without hearing, then,
except in cases of recognized exceptions, the law would be violative of the principles of fair
hearing, now also read into the Articles 14 and 21 of the Indian Constitution.9 The court thus
held that though the rules permit award of censure entry without notice and hearing, yet the
principles of natural justice should be read into such rules and no censure entry can be awarded
without any notice or hearing.10 However, refusal to participate in an inquiry without a valid
reason cannot be pleaded as a violation of natural justice at a later stage.11

Duty to act judicially or to act fairly:

In cases classified as ‘quasi-judicial’, there is a ‘duty to act judicially’, i.e., to follow the
principles of natural justice in full, but in cases which are classified as ‘administrative’ there is
only a ‘duty to act fairly’, which simply means that the administrative authority must act justly
and fairly and not arbitrarily or capriciously.

7
BALCO Employess’ Union v. Union of India [(2002) 2 SCC 333]
8
Sarat Kumar Dash v. Biswajit Patnaik [1995 Supp (1) SCC 434]
9
Olga Tellis v. Bombay Municipal Corporation [(1985) 3 SCC 366]
10
State of U.P. v. Vijay Kumar Tripathi [1995 Supp (1) SCC 552]
11
Bank of India v. Apurba Kumar Saha [(1994) 2 SCC 615]
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The only essential point that has to be kept in mind in all cases that the administrative authority
concerned should act fairly, impartially and reasonably.12 The basic purpose behind developing
the ‘fairness doctrine’ within the area of ‘administrative or executive’ functions of the
administration, wherein the principles of natural justice are not attracted, is to reconcile
‘fairness to the individual’ with the flexibility of administrative action.

Therefore, where an administrative authority is not exercising quasi-judicial powers and as

such there is no duty to act judicially because the principles of natural justice are not attracted
in such cases, a court may still insist on a duty to act fairly.

‘Acting fairly’ is an additional weapon in the armory of the Court. It is not intended to be
substituted for another much more powerful weapon ‘acting judicially’. Where, however, the
former ‘acting judicially’ cannot be wielded, the Court will try to reach injustice by taking
resort to the latter less powerful weapon ‘acting fairly’.13

Right to Notice:

The term ‘notice’ originated from the Latin word ‘notitia’ which means ‘being known’. In its
popular sense, it is equivalent to information, intelligence or knowledge. In the legal sense, it
embraces knowledge of circumstances that ought to induce suspicion or belief, as well as direct
information of the fact. But, if in a given case, the party is fully aware of such charges, the
absence of a formal notice would not invalidate the proceedings – unless some prejudice has
been caused to him.

The Supreme Court has held14 that the rules of natural justice are flexible and if no prejudice
was caused to the member, the action need not be set aside. Whether the requirements of natural
justice have been complied with or not has to be considered in the context of the facts and
circumstances of a particular case.

Notice is the starting point of any hearing. Unless a person knows the formulation of subjects
and issues involved in the case, he cannot defend himself. It is not enough that the notice in the
case is given, but it must be adequate also. The adequacy of notice is a relative term and must

12
Keshav Mills Co. Ltd. v. Union of India [(1973) 1 SCC 380]
13
C. K. Thakkar, “From Duty to Act Judicially to Duty to Act Fairly”, (2003) 4 SCC J-1
14
Ravi Naik v. Union of India [AIR 1994 SC 1558]
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be decided with reference to each case. However, generally in order to be adequate must
contain the following:

 Time, place and nature of the hearing.

 Legal authority under which the hearing is to be held.

 Statement of specific charges which the person has to meet.

If any action is proposed to be taken against a person, it is in the paramount interest of fairness
that a notice be given to him about the proposed action, so that he may ‘show-cause’, that is,
give an explanation or clarification regarding the allegations made against him. Any order
passed without giving such notice is against the principles of natural justice and can be set aside
in appropriate proceedings.

Notice embodies the rule of fairness and must precede an adverse order. It should be clear and
precise so as to give the party adequate information of the case he has to meet. The time given
should be adequate information of the case he has to meet. Time given should be adequate for
a person so that he could prepare an effective defense. Denial of notice and an opportunity to
respond make the administrative decision completely vitiated.15

Art. 21 of the Constitution requires that a detinue must be furnished with the grounds of
detention and they must be clear and specific enough for the detinue to make a representation
and should be in a language understood by him; and if the grounds are vague, the detention
order may be quashed by the Court.16

In other areas of administrative action, a notice has been held to be vague if it does not specify
the action proposed to be taken,17 or the property proposed to be acquired.18

15
Canara Bank v. Debasis Das [(2003) 4 SCC 557]
16
State of Bombay v. Atma Ram [AIR 1951 SC 157]
17
Abdul Latif Nomani v. Commissioner [AIR 1968 All 44]
18
Tulsa Singh v. State of Haryana [AIR 1973 Punj 263]
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 Right to know the evidence against him:

Every person before an administrative authority exercising adjudicatory powers has the right
to know the evidence to be used against him. The Supreme Court has held that the supply of
adverse material, unless the law provides otherwise, in original form is not necessary. It is
sufficient if the summary of the contents of the material is supplied, provided it is not
misleading.19 Whatever mode is used, the fundamental remains the same that nothing should
be used against the person which has not been brought to his notice.

Right to present case and evidence:

The adjudicatory authority should afford a reasonable opportunity for the party to present his
case. This can be done through writing or orally at the discretion of the authority unless the
statute under which the authority is functioning directs otherwise.

The requirements of natural justice are fulfilled only if the person is given an opportunity to
present his case in view of the proposed action. The demands of natural justice are not met
even if the very same person proceeded against has been furnished information on which the
action is based on a casual way or for some other purposes.

Courts are unanimous on the point that oral hearing is not an integral part of the fair hearing
unless the circumstances are so exceptional that without an oral hearing a person cannot put up
an effective defense. Hence, where complex legal and technical questions are involved, or
where the stakes are very high, oral hearing shall become a part of fair hearing.20 In the absence
of a statutory requirement for oral hearing, courts will decide the matter taking into
consideration the facts and circumstances of every case.21

When the person has been given an opportunity to submit his case in writing, there is no
violation of the principles of natural justice if an oral hearing is not given. Though the same is
the law in England, but in practice, oral hearing is the rule. In the U.S., the right to oral hearing
flows from the Administrative Procedure Act, 1946.

19
Dhakeshwari Cotton Mills Ltd. v. CIT [AIR 1955 SC 65]
20
State of U.P. v. Dharmander Prasad Singh [(1989) 2 SCC 379]
21
Director of School Education v. O. Karuppa Thevan [1994 Supp (2) SCC 666], hearing in case of an employee
is not necessary.
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The administrative authority must provide full opportunity to present evidence either
testamentary or documentary. Not giving a chance to produce material evidence violates the
rule of fair hearing.22 However, this does not imply that a person can be allowed to
unnecessarily prolong and confuse the administrative proceedings by adducing irrelevant
evidence. The question of relevancy of the evidence is a justiciable issue.

Another important question is when the right of hearing is not given at the initial stage but
is given at the appellate stage; does it violate the principles of natural justice? This question
still remains vague, however, is an English case23, it was held that the hearing given at the
appellate stage is as good as re-hearing of the matter and hence the initial defect was thus cured
as he had been given a full and fair opportunity before the appellate authority.

There is also another type of hearing known as post-decisional hearing. It is applied in cases
where it is of utmost importance and public in interest to take any action without causing any
delay. It is when action is to be taken immediately and the exigencies of the situation may
demand that it should be taken without giving any advance notice or an opportunity of being
heard to the affected person. However, generally speaking, an opportunity to be heard refers to
a pre-decisional hearing. This is so because, in a given case, a post-decisional hearing may be
illusory and nothing short of an empty formality. In these cases, it can be said that no real
hearing was given to the party.

Right to rebut adverse evidence:

The right to rebut adverse evidence presupposes that the person has been informed about the
evidence against him. As stated earlier, the original material need not be supplied in all cases;
a summary of the contents of the adverse materials shall suffice, provided that it is not
misleading.

It is not enough that the party should know the adverse material on file but it is further necessary
that he must have an opportunity to rebut the evidence. Rebuttal can be done either orally or in
writing at the discretion of the administrative authority provided the statute does not provide
otherwise.

22
Dhakeshwari Cotton Mills Ltd. v. CIT [AIR 1955 SC 65]
23
Calvin v. Carr [1980 AC 574]
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 Cross-examination:

Cross-examination is the most powerful weapon to elicit and establish the truth. However,
courts do not insist on cross-examination unless the circumstances are such that in the absence
of it, a person cannot put up an effective defense.

The right to cross-examine has never been considered to be an integral element of the audi
alteram partem rule. The court can decide, in each case, as to whether such an opportunity
ought to have been given to the person against whom action is being taken. Where the witnesses
have orally deposed, the refusal to allow cross-examination would certainly amount to violation
of the principles of natural justice.24

Legal representation:

The right to be represented by a legal practitioner has not been considered to be a part of natural
justice. However, if such a right has been expressly conferred by a statute, an order may be set
aside if this right is denied. Normally, representation through a lawyer in any administrative
proceeding is not considered an indispensable part of the rule of natural justice, as oral hearing
is not included in the minima of fair hearing.25 The Indian courts have held that in situations
where:

 the person is illiterate26; or

 the matter is complicated and technical27; or

 expert evidence is on record28, or a question of law is involved29, or

 the person is facing a trained prosecutor30;

some professional assistance must be given to the party to make his right to defend himself
meaningfully.

24
Meenglas Tea Estate v. Workmen [AIR 1963 SC 1719]
25
N. Kalindi v. Tata Locomotive & Engg. Co. Ltd. [AIR 1960 SC 914]
26
James Bushi v. Collector of Ganjam [AIR 1959 Ori 152]
27
Nitya Ranjan v. State [AIR 1962 Ori 78]
28
Harishchandra v. Registrar of Co-Op. Societies [(1966) 12 FLR 141 (MP)]
29
J.J.Mody v. State of Bombay [AIR 1962 Guj 197]
30
C.L.Subramaniam v. Collector of Customs [(1972) 3 SCC 542]
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 Report of the inquiry to be shown to the other party:

One of the cardinal principles of administrative law is that any action which has civil
consequences for any person cannot be taken without complying with the principles of natural
justice. Therefore, the administrative law question in disciplinary action has always been:

“Whether failure to supply a copy of the report of the inquiry to the charged government
employee before a final decision would amount to failure to provide a ‘reasonable
opportunity’ as required under Article 311(2) of the Constitution of India?”

Another constitutional question that can be asked in such a situation can also be:

“Whether any final action which is taken by the authority on the basis of the report of the
inquiry without first supplying a copy of it to the delinquent would be arbitrary and, hence
violative of Article 14 of the Constitution, which enshrines the great harmonizing principle?”31

A full bench of the Central Administrative Tribunal held that supplying a copy of the inquiry
report to the delinquent before recording a finding against him is obligatory, and, failure to do
so would vitiate the inquiry.32

Supporters of the view that it must not be obligatory to issue a copy of the inquiry report
contend that the virtue of the principles of natural justice is that they can be molded to suit the
requirement of fairness in an individual case. Therefore, it would not be proper to hold that in
every case, non-supply of the copy of the inquiry report would amount to violation of the
principles of natural justice.

The Supreme Court has held33 that there would be no automatic invalidation of administrative
orders if the report was not shown. It must be shown by the party what prejudice has been
caused to him when the report of the inquiry officer was not shown to him. This has brought
an element of fairness back into the law on this point.

31
Satyavir Singh v. Union of India [(1985) 4 SCC 252]; The Supreme Court opined that Art.14 applies not ….
only to discriminatory class legislation but also to arbitrary or discriminatory State action. Violation of the ….
principles of natural justice results in arbitrariness grounded in Art.14 of the Constitution.
32
Premnath K. Sharma v. Union of India [(1988) 6 ATC 904]
33
S.K.Singh v. Central Bank of India [(1996) 6 SCC 415]
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 EXCLUSION OF THE PRINCIPLES OF NATURAL JUSTICE

The word exception would be a misnomer in the context of natural justice because in those
exclusionary cases, it 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.34 The principles of natural justice can be excluded in the following circumstances:

 When a statute excludes the application of natural justice – expressly or

impliedly;

 When the action is legislative in nature;

 When the facts are admitted or undisputed;

 When the inquiry is of a confidential nature;

 When the preventive action needs to be taken immediately;

 When prompt and urgent action is necessary in the circumstances of the case;

 When non-observance of the rules of natural justice has not led to anything
unfair or unjust.

EFFECT OF BREACH OF RULES OF NATURAL JUSTICE

There is fundamental disagreement amongst the courts and jurists as to the effect of a breach
of the rule of fair hearing on any decision. In England, there is a conflict of judicial thinking
on this point. In many cases, it has been held that non-observance of the principles of natural
justice renders an order null and of no effect, as it is void ab initio in the eyes of law. On the
other hand, several other cases have held that such an order exists in the eyes of law until set
aside by a court of law.

In India, the view generally taken by the Courts on this point is that whenever the rules of
natural justice have been violated, the decision or action taken is null and void in the eyes of

34
ibid

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law. However, courts have observed that, in such cases, such an order or decision needs to be
declared to be void by a competent court. When that happens, the order collapses on its own.

The Supreme Court held35 that an order which infringes a fundamental freedom, passed in
violation of audi alteram partem rule, is a nullity. The Supreme Court emphasized that an
externment order passed in violation of the rules of natural justice is of no effect, and its
violation is no offense because such a determination is a jurisdictional error going to the very
roots of a determination.

However, the Supreme Court held in Maneka Gandhi's case and later reiterated in the Swadeshi
Cotton Mills case that an order passed in violation of the rules of natural justice is not such a
nullity, non est and stillborn which cannot be revived by post-decisional hearing.

Later, in the case of A.R. Antulay v. R.S. Nayak36, the Supreme Court favored the proposition
that any action in violation of the principles of natural justice is a nullity. The Court held that
an action taken in violation of the principles of natural justice is a nullity and the trial ‘Coram
non judice’ However, even when the action is void, it is valid until it is declared void by a court
and cannot be ignored.37

CONCLUSION

This research work suggests that the principles of natural justice were not new to India, though
they were not systematized or expressly proclaimed in the ancient past. It is evident that judicial
dynamism both in India and elsewhere is the reason d'etre for the multidimensional growth of
this concept. Lastly it is also evident that International Conventions has had profound impact
on the growth of Principles of Natural Justice.

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.

35
Nawabkhan Abbaskhan v. State of Gujarat [(1974) 2 SCC 121]
36
A.R. Antulay v. R.S. Nayak [(1988) 2 SCC 602]
37
Krishnadevi Malchand Kamathia v. Bombay Environmental Action Group [(2011) 3 SCC 363]
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