Principles of

Natural Justice
Natural Right?

– First hearing of Human History in the garden of Eden. Even God

doesn’t punish without hearing.
– Not required to be provided in the statute. It is a natural Right in
India. Procedure established by law is synonymous to due process
of law.
– Initially PNJ was only applied to the judicial functions performed by
the administration. After Ridge v. Baldwin, the House of Lords
applied PNJ in purely administrative functions as well.
– Two Principles: 1) Audi Alteram Partem 2) Nemo Judex in Causa Sua
Application in India

– First Supreme Court case in which application of AAP was

extended to administrative actions was State of Orissa v. Dr. Bina
Pani AIR 1967 SC 1269. Later in A. K. Kraipak v. Union of India
(1969) 2 SCC 262, the principle against bias was extended to
administrative actions.
NEMO JUDEX IN CAUSA
SUA

Bias
 Bias
– It means a pre-disposition to decide for or against one party or in favor of an outcome without proper regards to the
merits of the case. There need not be actual bias to vitiate an administrative decision. But if the circumstances creates
an apprehension of a reasonable likelihood of bias, that is sufficient as a vitiating factor.
– Pecuniary Bias (J. Mohapatra v. State of Orissa AIR 1984 SC 1572)
– Official Bias (Gullapalli Nageshwar Rao v. State of Andhra Pradesh AIR 1959 SC 308, Gullapalli Nageshwar Rao v. State
of Andhra Pradesh AIR 1959 SC 1376)
– Personal Bias
– Personal relationship (D. K. Khanna v. Union of India AIR 1973 HP 30, Maneklal v. Prem Chand AIR 1957 SC 425)
– Personal hostility (Mineral Development limited v. State of Bihar AIR 1960 SC 468)
– Judge witness combination (State of Uttar Pradesh v. Mohammad Nooh AIR 1958 SC 86)
– Judge Prosecutor combination (Partha Sarathy v. State of Andhra Pradesh AIR 1973 SC 2701)
– Judge prosecutor witness combination
– Judge in his own cause.
Exceptions to application of
Nemo Judex

Doctrine of Necessity
Ashok Kumar Yadav v. State of
Haryana AIR 1987 SC 454
– Written examinations and interview held for Haryana State Civil Services by the
Haryana State commission. The rules were made by the Governor u/a 309 of
the Constitution which is the Punjab Civil Service (Executive Department) Rules,
1930.
– The Chairman and the members were appointed by the Governor u/a 316 of
the Constitution. The Chairman and some other members were there in the
interview panel. Some of their relatives got selected.
– A few disgruntled candidates complained that they scored very high marks in
the written test but got disqualified in the interview because the Chairman and
the other members of the commission reduced their interview marks and
pushed up the marks of their relatives.
Held:

– It was observed by the Court that the presence of the chairman and other members in
the selection process doesn’t necessarily vitiate the selection of candidates. It was
observed that they withdrew from the interview when their relatives appeared as
candidates. Also, the marks in written examinations of the other candidates were not
disclosed to them, which militates against the ground that they pushed the high scoring
candidates interview marks down and allowed their candidate’s marks up.
– It cannot be the principle of law that a member of a Public Service Commission must
completely withdraw himself from the selection process if their relatives are candidates.
That would make functioning of the commission impossible as there cannot be any
substitute of such members in conducting the selection process. What is required is that
they don’t take part in the interview of their relatives or take part into any discussion
w.r.t the merits or marks of the candidates.
– CAN YOU RECONCILE THIS JUDGMENT WITH THE ESTABLISHED PRINCIPLE AGAINST BIAS?
Election Commission v. Dr. Subramanian Swamy
AIR 1996 SC 1810
Contd.

– Art. 191(1) A person Shall be disqualified for being chosen as, and for being, a
member of the Legislative Assembly or Legislative Council of a State- [….] (e) if
he is so disqualified by or under any law made by Parliament.
– S. 9A of the Representation of People’s Act:. Disqualification of Government
contracts, etc. - A person shall be disqualified if, and for so long as, there
subsists a contract entered into by him in the course of his trade or business
with the appropriate Government for the supply of goods to, or for the
execution of any works undertaken by, that Government.
– Dr. Swamy complained to the governor that Ms. Jayalalithaa is disqualified u/s
9A of the RP Act, as she has an outstanding contract with the Government of
TN. U/A 192(2) the governor must decide according to the opinion of the
Election Commission.
 Contd.

– Chief Election Commissioner was T. N. Seshan who was a classmate of Dr. Swamy and Swamy’s wife was the lawyer
of Mr. Seshan. Ms. Jayalalithaa approaches the Madras High Court seeking prohibition, directing Seshan from not
giving opinion. Both single bench and division bench of the High Court allowed her petition on the ground of
personal bias. EC approached the Supreme Court. The Argument of the Election Commission was that u/a 324 of
the Indian Constitution, the election commission must comprise of the Chief Election Commissioner and two other
commissioners. Therefore it is a multi-member body with the CEC’s presence being mandatory in its decision
making and hence the doctrine of necessity must apply in this case. The bench comprised of Singh, J., Kirpal, J. and
Ahmadi, C. J.
– Ahmadi, C.J.:-
– It is clear from the use of the wards shall obtain' the opinion of the Election Commission, that it is obligatory to
obtain the opinion of the Election Commission and the further stipulation that the Governor "shall act"
according to such opinion leaves no room for doubt that the Governor is bound to act according to that
opinion…... Thus the opinion of the election Commission is decisive since the final order would be based solely
 Contd.

– The next question then is if the Chief Election Commissioner, for reason of possible bias, is disqualified from
expressing an opinion, how should the Election Commission conduct itself? …..if the Court comes to the
conclusion that a decision can be reached without the Chief Election Commissioner participating in
decision-making in the special circumstances of the case, the latter is not at all keen or anxious to hear and
adjudicate upon the matter at issue before the Election Commission.…..Ordinarily we would be loath to
uphold the submission of bias but having regard to the wide ramification the opinion of the Election
Commissioner would have on the future of Ms. Jayalalithaa, we think that the opinion, whatever it be,
should not be vulnerable. The participation of the Chief Election Commissioner in the backdrop of the
findings recorded by the learned Single Judge as well as the Division Bench of the High Court would certainly
permit an argument of prejudice, should the opinion be adverse to Ms. Jayalalithaa. Therefore, apart from
the legal aspect, even prudence demands that the Chief Election Commissioner should recuse himself from
expressing any opinion in the matter.
 Contd.

– However, the situation is not so simple, it is indeed complex, in that, what would happen if the two Election
Commissioners do not agree and there is a conflict of opinion between them? That would lead to a stalemate
situation and the Governor would find it difficult to take a decision based on any such opinion. In such a situation,
can the doctrine of necessity be invoked in favor of the Chief Election Commissioner? It is well settled that the
law permits certain things to be done as a matter of necessity which it would otherwise not countenance on the
touchstone of judicial propriety. Stated differently, the doctrine of necessity makes it imperative for the
authority to decide and considerations of judicial propriety must yield. It is often invoked in cases of bias where
there is no other authority or Judge to decide the issue. If the doctrine of necessity is not allowed full play in
certain unavoidable situations, it would impede the course of justice itself and the defaulting party would benefit
therefrom…..If the choice is between allowing biased person to act or to stifle the action altogether, the choice
must fall in favor of the former as it is the only way to promote decision-making. In the present case also if the two
Election Commissioners are able to reach a unanimous decision, there is no need for the Chief Election
Commissioner to participate, if not the doctrine of necessity may have to be he invoked.
Tata Cellular v. Union of India AIR
1996 SC 30
– Tenders were invited from various private parties for cellular phone services in
four metros. Son of a member of the tender evaluation committee also
submitted tender. His tender got selected. That member of the tender
evaluation committee was the Director General, Telecom whose presence was
statutorily required, the Court applied Doctrine of Necessity.