ANALYSIS ON AUDI ALTREAM PARTEM

PARVATHI PK
B.B.A LL. B 2019-24

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ABSTRACT

Natural justice is a kind of English common law that entails a procedural requirement of fairness.
Natural justice concepts are extremely important in the study of administrative law. In action, it
is also known as substantial justice, basic justice, Universal justice, or fair play. Natural justice
concepts are not codified and are not embodied norms. They are judge-made norms that are
viewed as a parallel to procedural due process in the United States.

This article presents the principle of audi alterum partem which means the concept of the
principle of the right to be heard.

Natural justice represents higher procedural principles developed by judges which each body
agency should follow in taking any call adversely moving the rights of a non-public individual.
In India, the principles of natural justice area unit firmly grounded in Article 14 and 21 of the
Constitution. Principles of natural justice area unit attracted whenever an individual suffers a
civil consequence or a prejudice is caused to him in any body action. English law recognizes two
principles of natural justice as stated below;

1. Nemo in propria cause judex, esse debet – nobody ought to be created a choose in his
own cause, or the rule against bias.
2. Audi Alteram partem or the rule of fair hearing (hear the other side).

Keywords: Audi alteram partem, the right to be heard, human rights, procedural rights, natural
justice.

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INTRODUCTION

The fundamental premise of natural justice is the principle of audi alteram partem. Because of
the doctrine's omnipotence, no one should be convicted without a hearing. This notion has been
implemented in the sphere of administrative action to provide fairness and justice for those who
have been harmed. Its use is contingent on the factual matrix in order to promote administrative
efficiency, expediency, and fairness.

The method must be reasonable and equitable. The phrase audi alteram partem simply means
that someone must be given a chance to defend themselves. Every civilised society must adhere
to this idea. This rule has a corollary: qui aliquid statuerit, parte inaudita altera aequum licet
dixerit, haud aequum facerit, i.e. anyone who decides anything without hearing the other side
will not do what is right, even though he says what is right.

METHODOLOGY

Only secondary sources have been referred for this study. Secondary sources include books
related to Constitutional Law and research Articles on the Principles of Audi Altrem Partem and
its related cases. Ample websites, magazines and blogs have also been referred for the study.

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LITERATURE REVIEW

It comes in a variety of colors and tints, as well as various sizes and shapes, and it is legal when
it is not.1 When people are impacted by acts of power, this statement holds true. It is self-evident
that a member's financial interest, however little, in the subject matter of the proceedings would
prohibit him or her from serving as a judge.2 At the time his name was considered, a member of
the selection committee took the precaution of withdrawing himself from the selection process. 3

Even though there are no express rules for proving cause, it has been established that in a
proposed action that affects an individual's right, the authority must provide a reasonable chance
to be heard.4

The rule is this: Audi Alteram Partem does not apply just to the conduct of purely legal tribunals;
it also applies to any tribunal or body of people with authority.5 The principles of natural justice
have been found to be flexible, and the test is that the adjudicating authority must be unbiased,
and the individual affected must be given a fair hearing.

Even a post-decisional hearing is adequate conformity with the norm of natural justice in urgent
cases. It is up to the competent authority to decide whether the chance to be granted should be a
previous one in the specific circumstances.6 The general rule of course is prior opportunity.
Accurate decisions aren't just a stepping stone to respect for others; they're what they're all about.
Fair treatment is one of the most crucial aspects of justice. Respect for the individual is a crucial
component.7

When there is a right that is likely to be impacted by any act of the administration, including a
recorded expectation, the concept of natural justice is attracted.8

1
Mohinder Singh Gill & Anr vs The Chief Election on 2 December, 1977 1978 AIR 851,
1978 SCR (3) 272.

2
Mohinder Singh Gill & Anr vs The Chief Election on 2 December, 1977 1978 AIR 851, 1978 SCR (3) 272.
3
A.K. Kraipak & Ors. Etc vs Union Of India & Ors on 29 April, 1969 SC 150
4
Maneka Gandhi vs Union Of India on 25 January, 1978 AIR 597, 1978 SCR (2) 621
5
lapointe vs association 1906 AC 535 (539).
6
State Of U.P. & Ors.Etc vs Pradhan Sangh Kshettra Samiti on 24 March, 1995 AIR 1512, 1995 SCC Supl. (2) 305
7
Allan ,T (revor) R.S (1998), “procedural Fairness and the duty of respect”, Oxford Journal of Legal Studies
18(3):497-515
8
Binmore,Ken (neth George)(2005), natural Justice,New York ,Oxford University Press

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Although the authority has legislative jurisdiction to act without a hearing, doing so would be
arbitrary and a breach of natural justice.9 The necessity to record reason stemming from the
board theory of fairness in decision-making not only makes judges and decision-makers less
susceptible to errors, but it also subjects them to boarded security.10

The rule of natural justice evolved alongside the development of civilization, and its substance is
frequently used to assess the level of civilization.11 The fact is that justice is a complex idea that
has evolved through many centuries of civilization, and it still varies greatly among countries
that are considered civilized.

9
Gaig,paul(p)(2005) natural Justice hearing ;natural justice; Bais and independence (ch3.12- 13),administration law
(6th edition).,
10
David Shapiro in defence of judicial condor (1987) 100 Harvard law review 731-737
11
K.I. Shephard & Ors. Etc. Etc vs Union Of India & Ors on 18 September, 1987

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ESSENTIAL ELEMENTS OF AUDI ALTREM PARTEM

1) RIGHT TO NOTICE

The word 'notice' comes from the Latin word 'notitia,' which literally means 'to be known.' Any
hearing begins with a notice. He cannot defend himself unless he understands the subject and
problems involved in the case. It is an essential component of all court processes, and any order
issued without the issuing of the notice is null and void from the start.

Furthermore, if a legislation requires service of the notice, failing to do so will result in the
dismissal of the whole complaint or case. A detainee must be provided with the reason for
custody, according to Article 22 of the Indian Constitution. The order of detention might be
invalidated by the court if this notice is not served if the grounds are ambiguous. A notification
must be adequate and contain the following information:

 Time, place and nature of hearing

 Legal authority under which hearing is to be held
 Statement of specific charges (or grounds) and proposed action (or grounds) which the
person has to meet.

Once the interested person is well informed of the case against him, and is not consequently
biassed in any way in golf put up a good defense, the requirement of notice will not be imposed
upon as a mere technical formality.

In Keshav Mills Co. V Union of India 12, On the technical ground that the appellants were not
served with notice before this action was taken, the court failed to quash the order of the go
taking on the mill for a period of five years on the technical ground that the appellants were not
served with notice before this action was taken because, at an earlier phase, a complete hearing
had already been given and there was nothing extra that the appellant needed to understand. 13

Likewise, in Maharashtra State Financial corporation. V Suvarna Board Mill 14, A notice
business served on the party to repay dues within fifteen days, failing which the manufactory
would be appropriated, is sufficient for taking over the manufactory, according to the court, and
12
The Keshav Mills Company Ltd. & Anr vs Union Of India And Ors on 8 December, 1972
13
Peter Cane (2004), "Making Decisions and Rules", Administrative Law(4th ed.), Oxford: Oxford University Press,
pp. 192–220 at 192, ISBN 978-0-19-926898-6
14
Maharashtra State Financial corporation. V Suvarna Board Mill (1994) 5 SCC 566

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no additional notice is required for the demolition of an unauthorized structure once notice for its
removal has been given. When a legislation specifically requires that a notice be given, failing to
do so renders the conduct invalid.

Outcomes of non-issue of notice:

 If the authority has been given a reasonable chance to be heard, the failure to issue notice
or a mistake in the giving of notice or poor delivery of notice has no bearing on the
authority's jurisdiction.
 A part of a reasonable chance to be heard is the provision of notice as required by law.
 The proceedings would be vitiated if prejudice was induced by the non-issuance or
invalid serving of notice. However, improper notice service does not render the
proceedings illegal, especially if the person's actions make service impractical or
impossible.

 An administrative authority may resolve the matter de novo with adequate notice in the
case of non-issuance of notice or poor service, which breaches natural justice principles.
 If the show-cause notice contains imprecise, ambiguous, or incomprehensible claims, it
will infer a denial of due process if the case is heard.

2) RIGHT TO KNOW THE EVIDENCE AGINST HIM

In the case of Dhakeshwari Cotton Mills Ltd V. Cit 15 this principle was established. Here, the
information provided to the appellate income tax tribunal by the agency was not made public.
The assessee was not given a fair hearing, according to the Supreme Court. However, unless the
legislation expressly states otherwise, providing unfavorable material in its original form is not
required. It is sufficient if a summary of the material's contents is provided, as long as it is not
misleading. A person may be permitted to examine and take notes on a file. Whatever method is
employed, the underlying principle remains the same: nothing should be used against a person
that has not been made known to him. Hence everyone who is in front of an administrative
authority with adjudicatory powers has the right to know what evidence will be used against
them.

15
Dhakeswar1 Cotton Mills Ltd vs Commissioner Of Income Tax,West 1955 AIR 65, 1955 SCR (1) 941

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 3) THE RIGHT TO PRESENT CASE AND EVIDENCE

This can be accomplished either in writing or vocally. The courts have always agreed that an
oral/personal hearing isn't an essential aspect of a hearing unless the circumstances are so
unusual that an individual would be unable to provide a good defence without one. As a result,
oral hearing will become a location of hearing if complicated legal and technical questions are
involved, or when the stakes are extremely high. In the absence of a legislative need for an oral
hearing, courts can make decisions based on the facts and circumstances of each case.16

In Union of India v J.P Mitter17, the court declined to overturn the President of India's ruling in a
disagreement about the age of a high court judge, claiming that the President refused to provide
an oral hearing even though one was requested. The court held that if a person is given the
chance to make his argument in writing, there is no breach of natural justice principles if an oral
hearing is not granted.

Furthermore, the administrative body must allow enough opportunity for testimony or
documented proof to be presented. The Supreme Court invalidated the administrative authority's
judgement in Dwarkeshwari Cotton Mills Ltd. V. Cit, holding that not allowing the assessee to
submit significant evidence violated the norm of fair hearing.

4) THE RIGHT TO REBUT ADVERSE EVIDENCE

This right assumes that the individual has been informed of the evidence against him. The
possibility of rebutting proof is based on two criteria;

Cross examination - Every individual has the right to question or object to the evidence produced
by the other party under this right. The procedure of cross-examination is a crucial stage in
determining the truth. However, in some situations, due to impracticability or need, this rule may
be eased.

16
WADE,H W R, 1982: Administrative law. fifth edition, Oxford Clarence press
17
Union Of India vs Jyoti Prakash Mitter on 21 January, 1971 AIR 1093, 1971 SCR (3) 483

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The trial court only issued the order in Town Area Committee V. Jagdish Prasad 18 after receiving
the charge sheet and evidence from the appellant side. The order was overturned by the Supreme
Court, which stated that a fair trial includes the ability to cross-examine witnesses and evidence.

Legal Representation - Every person is unable to assertively convey his or her argument. As a
result, he will require the help of a specialised legal counsel to state his argument. The Indian
Constitution also guarantees that everyone has the right to legal representation.

The Hon'ble Supreme Court declared in J.J Mody v State of Bombay 19 that the right to a "fair
procedure" inherent in Article 21 of the Constitution also includes the right to free legal services
for those who cannot pay it. Furthermore, it was emphasised in Khatri V. State of Bihar 20 that the
State is legally bound to offer free legal help to the poor not only at trial but also during
detention. A convict's right to vote cannot be denied on administrative or financial grounds.

5) NO PROOF OUGHT TO BE TAKEN AT THE REAR OF THE OPPOSITE PARTY

The court stated in Errington V. Minister of Health 21 that ex parte evidence gathered in the
absence of the opposing party breaches the concept of hearing. The circumstances were that in
1933 Jarrow Corporation issued a clearing order for the destruction of bound structures that were
deemed unsuitable for human occupancy and presented it to the ministry of health for approval.
A inquiry was ordered, and the building's owners were given a hearing. Following that, some
ministry officers returned to the location and collected evidence, although the house owners were
unaware of the visit. The clearance order was confirmed by the minister after taking into account
the information gathered.22

The court invalidated the clearing ruling after a challenge, and one of the reasons given was that
the ex-party remarks made in the absence of the other party, without giving the other party an
opportunity to respond, violated recognised norms of natural justice.

The judgement does not rule out the possibility of body agencies obtaining data in the way they
see fit. The main focus of the Errington case is that any facts the executive authority obtains
should be communicated to the opposing party, together with the opportunity to contradict it. In
18
Town Area Committee, Jalalabad vs Jagdish Prasad And Ors. on 7 April, 1978 AIR 1978 SC 60,
19
Jagmohandas Jagjivandas Mody vs State Of Bombay on 20 July, 1961 AIR 1962 Guj 197
20
Khatri And Others vs State Of Bihar & Ors on 19 December, 1981 SCR (2) 408, 1981 SCC (1) 627
21
Errington v. Minister of Health, (1935) 1 KB 249 case
22
WIECHERS, M 1990: Administrative law.Pretoria.Butterworths

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Hira Nath Mishra V. Principle, Rajendra Medical Faculty, 23 the Supreme Court reaffirmed this
stance. In this case, 36 women from a medical school filed a complaint with the Principle about
misbehaviour by the lads in the girl's dormitory.

The statements of the ladies were recorded by the Principle’s inquiry committee, but the
appellants were not present. The women were also familiar with the appellants because of the
photos. 24

The appellants were judged guilty by the committee, and an expulsion order was issued against
them. The order of expulsion was appealed to the Supreme Court, and one of the grounds for
appeal was that the proof was seized behind their backs. The court dismissed the complaint,
stating that the ladies would not have made the remarks in the presence of the appellants unless
they were willing to incur retaliation and harassment. During this case, no matter what material
was gathered behind the appellants' backs, it was brought to their attention and they were given
an opportunity to refute it.

6) REASONED CALL

In India, there is no widespread requirement for body authorities to administer explanations for
their selections in the absence of any express statutory demand. However, if the statute under
which the agency is operating requires reasoned decisions, courts consider it mandatory for the
executive agency to provide reasons that aren't just "rubber-stamp" reasons but a quick, clear
statement that establishes a link between the material on which bound conclusions are based and
the actual conclusions.

The Court emphasised in M.J.Sivani V. State of Province that once the principles command the
recording of reasons, it is a circular function qua non and a condition precedent for a lawful
order. Although not a decision, suitable transitory grounds are required for a legal order.
Typically, they must be informed to the affected person in order for him to have an opportunity
to have them examined in the appropriate forum. The associate degree body order itself may
incorporate reasons, or the file may provide causes for hitting the decision, demonstrating
application of mind to the facts at hand.

23
AIR 1973 SC 1260
24
Audi Alteram Partem –Exclusion in Special Circumstances , R.L . Narasimhan

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 7) CONCEPT OF POST DECISIONAL HEARING

The concept of post-decisional hearing was devised to maintain a balance between bodily
potency and individual justice.

The court emphasised that a substantial possibility of being caught following the order
impounding the passport would meet the natural justice obligation. Swadeshi Cotton Mills V.
Union of Asian Countries25 used the same method of substantiating void body calls through post-
decisional hearing.

The Supreme Court created the harmonising mechanism in Maneka Gandhi v. Union of Asian
Countries. In this case, the petitioner, a journalist, had his passport impounded "in the general
public interest" by an order dated July two, 1977, and because the government refused to provide
her with the explanations for its decision, she filed a petition before the SC under Article thirty
two challenging the validity of the impoundment order. The government additionally didn't
provide her with any pre-decisional information.

In Maneka Gandhi v. Union of Asian Countries, the Supreme Court devised the harmonising
procedure. The petitioner, a journalist, had his passport seized "in the great public interest" by an
order dated July 2, 1977, and because the government failed to explain its reasons, she filed a
petition with the SC under Article 32 contesting the legitimacy of the impoundment order.
Furthermore, she received no pre-decisional information from the administration.

25
Swadeshi Cotton Mills vs Union Of India on 13 January, 1981 AIR 818, 1981 SCR (2) 533

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EXCEPTIONS

The term "exception" in the context of natural justice is a misnomer, because the norm of audi
alteram partem is deemed inapplicable non these exclusionary instances not as an exception to
"fair play in action," but because nothing wrong can be inferred by denying a chance to present
or meet a case. In every civilised culture, such cases where no injustice can be inferred by
denying a fair hearing must be rare and extraordinary. The use of natural justice principles might
be openly or impliedly prohibited, subject to the requirements of Articles 14 and 21 of the
constitution.

1) Exclusion Emergency

The need of notice and hearing may be waived in such rare circumstances of urgency when quick
preventative or corrective action is required. As a result, if the right to be heard would stymie the
process, the law would prohibit it. Even in an emergency scenario involving people's vital rights,
post-decisional hearings are important for administrative and judicial gentlemanliness.
Otherwise, depending on the facts of each case, some type of pre-decisional hearing, no matter
how rudimentary, must be provided.

The administrative conclusion of an emergency circumstance requiring the suspension of natural

justice standards is not final. The resolution of such a case may be appealed to the courts. The
court concluded in Swadeshi Cotton Mills V. Union of India that the word "immediate" in
section 18-A of the Industries (Development and Regulation) Act cannot prevent the application
of natural justice principles.

2) Exclusion in Cases of Confidentiality

The Supreme Court ruled in Malak Singh V. State Of Punjab And Haryana that the police
surveillance record is a secret document. The individual whose name is recorded in the register,
as well as any other member of the public, are not permitted to view it. Furthermore, the court
stated that applying natural justice principles in such a case may negate the whole objective of
monitoring, and there is a strong probability that the goals of justice may be destroyed rather
than fulfilled.

3) Exclusion in Case of Purely Administrative Matters

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For inadequate academic performance, a university student was dropped from the rolls without a
pre-decisional hearing. In Jawahar Lal Nehru University v. B.S. Narwal 26, the Supreme Court
declared that the mere nature of academic adjudication appears to exclude any right to a hearing.
As a result, if competent academic authorities review and evaluate a student's work over time and
pronounce it inadequate, the standards of natural justice may be disregarded. This exception,
however, does not apply to disciplinary issues or when the academic body undertakes non-
academic tasks.

4) Exclusion Based on Impracticability

The court decided in R. Radhakrishnan V. Osmania University, where the university cancelled
the whole MBA admission examination because to mass coping, that providing notice and
hearing to all candidates is not practicable in such a scenario that has reached national
dimensions. As a result, the court recognised the administrative impracticability of excluding
natural justice requirements.

5) Exclusion in Cases of Legislative Action

Natural justice norms do not apply to legislative action, whether plenary or subordinate, because
these laws establish a policy without regard to a specific individual. Natural justice principles
can likewise be excluded by a provision of the Constitution, based on the same rationale. Articles
22, 31(A), (B), (C), and 311(2) of the Indian Constitution expressly exclude the principles of
natural justice. However, under Articles 14 and 21 of the Constitution, courts may strike down a
legislative exclusion if it is arbitrary, unjustified, or unfair.

The Supreme Court ruled in Union of India v. Cynamide India Ltd 27. that no natural justice
principles were breached when the government issued a notification setting the cost of certain
pharmaceuticals. The Court reasoned that because the notice was based on a legislative act rather
than an administrative act, natural justice standards did not apply.

6) Exclusion In Case of Statutory Exception or Necessity

If he is the only person competent or empowered to determine that case or take that action, he
will not be disqualified on the basis of bias against him. If this exemption is not granted, there
26
Jawaharlal Nehru University vs B. S. Narwal on 4 September, 1980 AIR 1666, 1981 SCR (1) 618
27
Union Of India & Anr vs Cynamide India Ltd. & Anr on 10 April, 1987 AIR 1802, 1987 SCR (2) 841

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will be no other way to resolve the situation, and the entire administration would grind to a
standstill. However, the need must be sincere and genuine. The case of Charan Lal Sahu v.
Union of India (Bhopal Gas Disaster) is a notable illustration of this exception in action. The
constitutional validity of the Bhopal Gas Disaster (Processing of Claims) Act, 1985, which
authorised the Central government to represent all victims in matters of compensation award,
was challenged on the grounds that the Central government owned a 22 percent stake in the
Union Carbide Company and thus was a joint tortfeasor, resulting in a conflict between the
government's and victims' interests.28

28
Charan Lal Sahu Etc. Etc vs Union Of India And Ors on 22 December, 1989 SCR Supl. (2) 597

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CONCLUSION

Natural justice is a concept that has evolved throughout history. It is the result of mankind's
evolution, not the constitution. When charges are levelled against someone, they have the right to
speak out and be heard. Audi alteram partam is a broader idea than it appears. It is one of the
essential principles of natural justice; therefore, thinking about natural justice without
considering the idea of audi alteram partam would be wrong. It refers to the right to a fair trial.
This sentence may appear simple, yet it encompasses the entire tale of justice, from notification
through post-decisional hearing.

However, there are several instances where this rule is not observed. These exclusions, however,
must be justified. There has to be a rationale for ignoring this concept, which is the foundation of
justice. Then there's the issue of deciding where to skip and where not to. There is no method for
calculating this in a straight jacket. It is rather contingent on the facts and circumstances of the
situation. The presiding judge should strike a balance between the seriousness of both parties'
facts and circumstances.

But, based on the preceding examples, we may conclude that audi alteram partam, or the right to
a fair hearing, is a universal idea, and that ignoring this is an exception.

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