natural justice and fair hearing by: - e.hariharan...

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Volume 1 Issue 3 March 2018 ISSN: 2456-9666 JUS IMPERATOR www.jusimperator.org Page 1 NATURAL JUSTICE AND FAIR HEARING By: - E.Hariharan ABSTRACT Whenever a person does a mistake or a crime, a reasonable opportunity has to be given to him so that he could show his intent or situation or any other reason that caused him to do. This opportunity may give positive or negative effect to the decision of the decider. An accused, who may be right to his name or wrong, will be struggling to prove his stand. The need for reasonable opportunity is upheld by the rule of fair hearing. The right of fair hearing all includes the right to notice, know the evidence against him, present case and evidence, cross examination, counsel. The essence of fair hearing comes from the principle of Natural Justice, which has been developed and followed by the judiciary in order to curb arbitrariness of the administrative authorities. Natural Justice implies fairness, reasonableness, equity and equality. Natural Justice, a common law concept, similar to the concept of “procedural due process”. In Roman law, Natural Justice consists of two essential concepts namely 1. AUDI ALTERAM PARTEM the person who has to be effected by the decision, has a right to be heard. 2. NEMO JUDEX IN CAUSA SUA the authority deciding the matter should be free from bias. The concept of fair hearing is completely based on the maxim “audi alteram partem”. It is the principle of the civilized jurisprudence that spoke about giving opportunity to the person accused, before any decision is taken against him. A person’s right to be heard is upheld by the Art 21 of the constitution that speaks about right to life and personal liberty. Based on various provisions of the constitution, fair hearing has sustained in India to provide justice to the people which is the main purpose of Judiciary.

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Page 1: NATURAL JUSTICE AND FAIR HEARING By: - E.Hariharan …journal.jusimperator.org/wp-content/uploads/2018/03/E.hariharan.pdf · Audi alteram partem The concept of audi alteram partem

Volume 1 Issue 3 March 2018 ISSN: 2456-9666

JUS IMPERATOR www.jusimperator.org Page 1

NATURAL JUSTICE AND FAIR HEARING

By: - E.Hariharan

ABSTRACT

Whenever a person does a mistake or a crime, a reasonable opportunity has to be given to him so

that he could show his intent or situation or any other reason that caused him to do. This

opportunity may give positive or negative effect to the decision of the decider. An accused, who

may be right to his name or wrong, will be struggling to prove his stand. The need for reasonable

opportunity is upheld by the rule of fair hearing. The right of fair hearing all includes the right

to notice, know the evidence against him, present case and evidence, cross examination, counsel.

The essence of fair hearing comes from the principle of Natural Justice, which has been

developed and followed by the judiciary in order to curb arbitrariness of the administrative

authorities. Natural Justice implies fairness, reasonableness, equity and equality. Natural Justice,

a common law concept, similar to the concept of “procedural due process”.

In Roman law, Natural Justice consists of two essential concepts namely

1. AUDI ALTERAM PARTEM – the person who has to be effected by the decision, has a

right to be heard.

2. NEMO JUDEX IN CAUSA SUA – the authority deciding the matter should be free from

bias.

The concept of fair hearing is completely based on the maxim “audi alteram partem”. It is the

principle of the civilized jurisprudence that spoke about giving opportunity to the person

accused, before any decision is taken against him. A person’s right to be heard is upheld by the

Art 21 of the constitution that speaks about right to life and personal liberty. Based on various

provisions of the constitution, fair hearing has sustained in India to provide justice to the people

which is the main purpose of Judiciary.

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What is natural justice?

To look into the concept of fair hearing, it is necessary to know what is “Natural Justice”?

Rules of Natural Justice have developed with the growth of society and civilization. It is not

codified, that is, it does not trace its origin from any constitution. The principles of Natural

Justice can also be called as principle of fair play. It is not possible to give an absolute or precise

definition for Natural Justice.

It is said that the concept of Natural Justice is of very old origin and it was very well known to

the Greeks and Romans. Even the great emperor Ashoka showed great concern to the

administration of justice , and pardoned prisoners saying:

“It is my desire that there should be uniformity in law and uniformity in sentencing. I even go

this far, to grant a three-day stay for those in prison who have been tried and sentenced to death.

During this time their relatives can make appeals to have the prisoners' lives spared. If there is

none to appeal on their behalf, the prisoners can give gifts in order to make merit for the next

world, or observe fasts.”1

Similarly the Babylonian king Hammurabi wrote that, “A judge who reaches an incorrect

decision is to be fined and removed from the bench permanently.”2

Later the concept was furnished by Aristotle. His idea was to reasonable talk about the principles

of justice. Even though he was not against the monarch, he spoke for the inclusion of political

philosophy to reform the mode of justice.

In “Nicomachean Ethics”, Aristotle argued that law supports a virtuous existence, advances the

lives of individuals and promotes the “perfect community‟. He proposed people should employ

practical wisdom or active reason in order to behave in a way that is consistent with a virtuous

existence. Aristotle defined justice as a state of mind that encourages man to perform just

actions.3

1 https://en.wikipedia.org/wiki/Edicts_of_Ashoka last seen on 06.12.2017.

2 Prince, J. Dyneley (July 1904). "Review: The Code of Hammurabi". The American Journal of Theology. The

University of Chicago Press. 8 (3): 601–609. JSTOR 3153895. 3 Subhankar kundu, “ the concept of Natural Justice and its growth in India”, Academia research papers.

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In days bygone the Greeks had accepted the principle that “no man should be condemned

unheard”. The historical and philosophical foundation of the English concept of Natural Justice

may be insecure, nevertheless they are worthy of preservation. Indeed, from the legendary days

of kautilya’s Arthashastra, the rule of law has had this stamp of Natural Justice which makes it

social justice.4 the rules of Natural Justice has been given a higher status that “no human laws are

of validity, if contrary to this” and that a court could disregard an Act of parliament if it is

contrary to natural law.

As we all know there is no specific provision to mention Natural Justice. a question arises as to

whether the adjudicating authority is bound by Natural Justice. The answer of this question is

said by the Supreme Court of India, in Manohar S/o. Manikrao Anchal v. State of

Maharashtra and others5, as follows, -

The adjudicatory process essentially has to be in consonance with the principle of natural

justice, including the doctrine of audi alteram partem, i.e., no one should be condemned unheard

and the another doctrine of nemo debet esse judex in propria causa sua, i.e., no one should be a

judge in his own cause, and recording the reasoned decision are the basic elements of natural

justice.

Natural Justice being not codified doesnot have any rigid mould, felexible in nature. Justice

Chinnappa Reddy in Swadeshi cotton mills v India6, stated that,

Natural Justice, like ultra vires and public policy, is a branch of the public law and is a

formidable weapon, which can be wielded to secure justice to the citizen… while it may be used

to protect certain fundamental liberties – civil and political rights – it may be used, as indeed it

is used more often than not, to protect vested interests and to obstruct the path of progressive

change.

Looking on to a much deeper study, the Concept of Natural Justice consists of two elements

4 C.K Takwani, Lectures on Administrative law,pg.180(5

th edition,2014)

5 AIR 2012 13 SCC 14

6 (1981) 1 SCC 664,711, AIR 1981 SC 818

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Nemo Judex In Causa Sua

No man should be judge in his own cause, or the deciding authority must be impartial and

free from bias.7 Any court decision taken against this maxim is void and cannot be

implemented. An exclusion of this principle occurs only when there is necessity, which

applies only in extraordinary and rare situations where the judge is allowed to hear the

case, even though some conflict of interest is found.

Audi alteram partem

The concept of audi alteram partem signifies the fact that no man shoulD be condemned

unheard. The maxim is the base for the concept of Fair Hearing and will be discussed in

detail later in this article.

FAIR HEARING

According to the Black’s Law Dictionary (5th Edition), fair hearing is defined as; “One in which

authority is fairly exercised, that is consistently with the fundamental principles of justice

embraced within the conception of due process of law. Hearing means giving an opportunity to a

person against whom an adverse action is proposed to be taken to say why it should not be taken.

The concept of Fair Hearing is substantiated by the maxim Audi Alteram Partem that says no

one should be condemned unheard. Both sides of a case should be heard so that they can justfy

or prove their stand. A reasonable opportunity is an important constituent of a fair play. In Union

of India v. T.R. Verma8, Justice Venkataraman Aiyar also observed:

“Rules of natural justice require that a party should have the opportunity of adducing all relevant

evidence on which he relies, that the evidence of the opponent should be taken in his presence

and that he should be given the opportunity of cross-examining the witnesses, examined by the

party and that no materials should be relied on against him without his being given an

opportunity of examining them”.

7 MS.MOUSHUMI SARMAH, EXCEPTIONS TO THE PRINCIPLES OF NATURAL

JUSTICE, Volume 2, Issue 5, page 2(2015) 8 AIR 1957 SC 882

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Hearing must be fair and free from arbitrariness. Article 21 of the constitution says that no

person shall be deprived of his life and personal liberty, except according to the procedure

established by law. The Supreme Court has held that “procedure established by law means fair

and just procedure. The right of equality before the law and equal protection of law guaranteed

by Art 14, forbids arbitrariness. Six freedoms, freedom of speech and expression, freedom of

assembly, freedom of association, freedom of movement, freedom to reside and settle in any part

of India and freedom to practice any profession or to carry on any occupation, trade or business

are subject to reasonable restrictions. The reasonable restriction applied after a fair hearing is an

important touchstone.

Ashbacker doctrine

In UK, the right to participate in agency proceedings is explained by the Ashbacker doctrine so

called because it was laid down in a case of that name.9 The case involved two applications to

operate radio stations on the same frequency in two cities in Michigan. (the statute provided that

before rejection of the application they have a right of hearing) after finding that simultaneous

operation would result in intolerable interference to both applicants, the Federal Communications

Commission granted the first application without hearing and then designated the second

application for hearing. The court held that the commission has acted improperly: “For if the

grant of one {application} effectively precludes the , the statutory right to a hearing which

congress has accorded applicants before denial of their applications becomes an empty thing”.10

This doctrine is the rule of fair hearing in UK.

Fair Trials may be arbitrary and subjective in nature but a fair trial includes a trial before an

impartial judge, a fair prosecutor and atmosphere of judicial calm.11

It also has been

acknowledged as an implicit right under Article 21 of the Constitution as well as recognized in

the Universal Declaration of Human Rights.12

The concept of fair hearing all includes few rights like:

9 Bernard Schwentz, administrative law, 2

nd edition,1976,pg. 299

10 Ashbacker Radio Corp. v. FCC, 326 U.S 327 (1946).

11 Zahira Habibullah Sheikh & Anr v. State of Gujarat (2006) 3 SCC 374

12 Articles 10 and 11 of the Universal Declaration of Human Rights – “full equality to fair and public hearing by

independent and impartial tribunal” (Art.10) and “innocent until proven guilty.”

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NOTICE: Natural Justice demands that the person, who is to be directly affected by the

administrative action, should be given prior and adequate notice of what is proposed, so as to

enable her to make a representation on her behalf, appear at the hearing or inquiry. If a person is

prima facie found guilty of something, she must be told clearly she must be told clearly what the

charges against her are, where a statute expressly provides that a notice be givenS, failure to give

notice makes the act void.13

In the case of Keshav mills co.ltd v. union of india14

the court upheld the government order of

taking over the mill for a period of 5 yrs. The argument of the appellants was quashed which was

regarding the issue of prior notice. The reason stated was that the appellants were not interested

to anything even when opportunity was given.

RIGHT TO KNOW THE EVIDENCE AGAINST HIM: Both side parties of a case has the right

to know about the evidence produced before the court against him by the other side.

RIGHT TO PRESENT THE CASE AGAINST HIM AND PRESENT EVIDENCE: When an

allegation is placed against a person, the person has the right to present the case and to place

evidence before the adjudicating authority.

RIGHT TO CROSS EXAMINE: The right to cross-examine is given under sec 33 of Indian

Evidence Act, 1972. This is not a obligatory right and it can or cannot be given based on the

circumstances of the case

In Hira Nath Mishra v. Rajendra Medical College 15

, some male students of the college entered

the girls hostel and misbehaved with them. A committee was constituted for investigation and

four students were expelled from the college. The girls who complained were examined in the

absence of the boys. The four boys filed a case on the ground of violation of natural justice. The

court rejected their argument and stated that the girls cannot be enquired in the presence of those

boys as it may expose them to harassment.

13

Gokak patel volkart ltd v. collector, Central Excise, Belgaum AIR 1987 sc 1161. 14

1973 AIR 389, 1973 SCR (3) 22 15

(1973) 1 SCC 805

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RIGHT TO COUNSEL: Everyone has a right to represent his/her case through a counsel. It is

very hard for laymen to present his case himself before court of law. To upheld this right there

are free legal aid provided so that even a person who is not equipped with money can even get a

legal assistance.

Taking look on what is fair hearing and the rights covered by the concept of fair hearing, only a

rigid statute or rule alone won’t provide a clear level of justice to the society. Searching for a

remedy to this issue the solution is Natural Justice. It is clear that a fair trial can be constituted

only when some rights and obligations are adopted to provide a balance between the victim and

the accused. An accused alleged of committing a crime cannot be left without giving a

reasonable opportunity as he may even have some truth to express before. I want to conclude

saying that a balance between both the parties can be maintained only in the presence of a fair

trial.