PRINCIPLES OF NATURAL JUSTICE *

 Vijay GaikwadH

Much speculated and less understood subject is the

Principles of Natural Justice. One is simply amazed at the number
of times the phrase comes up in conversations of the entry level
Personnel and Administrative Executives. The Principles of
Natural Justice assume added significance in the wake of the ruling
by the Supreme Court in the Sawal Singh V/s State of Rajsthan,
1986 case that there must be fair play in action, since in
Departmental Inquiries entailing consequences like loss of job, loss
of livelihood are likely and possible. Generally such principles are
provided in the various statutes specifically. But even if they are
not provided, they are read into the statute just to set aside the
blame of arbitrariness, unilateral ness, unfairness, bad conscience
and inequality. In the Kraipak v/s Union of India (AIR 1970 S.C.
150) case, the Hon'ble Supreme Court has observed, " The aim of
rules of natural justice is to secure justice or to put it negatively to
prevent miscarriage of justice. These rules can operate only in
areas not covered by any law validly made in accordance with any
of the Principles of Natural Justice or not depends upon the express
words of the provision, that confers the powers the purpose for
which the specific power is conferred, the nature of the power
conferred and the effect of the exercise of that power." Yet in
the Vijay Hemant Finance & Estates Ltd. V/s I.T.O. ( 238 ITR
282 ), 1999 case, the Madras High Court has observed, " Unless
the provision of the statute warrant or there is a necessary
implication on reading of the section that the Principles of Natural
Justice are excluded, the provision of the section should be
construed in a manner incorporating the Principles of Natural
Justice. Courts should generally read into the provision of the
relevant sections a requirement of giving a reasonable opportunity
of being heard before an order is made which could have adverse
civil consequences for the parties concerned”.
PNJ … The Historical Perspective

The Principles of Natural Justice are as old as the mankind

itself. The Bible recites the story of Adam, who ate the forbidden
(knowledge) fruit apple, at the instigation of Eve. God had
forbidden the first man and first woman to eat it. However when
He came to know of the event, He did not straightway punish
Adam and Eve. Instead He called both of them and gave an
opportunity to explain their stand. God asked them, " Hast thou
eaten the fruit of the tree where I commanded thee that thou shall
not eat? " Moral of the story is that God, the almighty, adhered to
the Principles of Natural Justice and did not think it proper to
condemn them without being heard.

The phrase Natural Justice comes from the old Latin term Jus
naturale and means justice that is part of nature. In ordinary
parlance, it means such principles, which govern the justice, to be
done in a natural way or principles, which are adhered to when
justice is done by nature. The mythological Vikramaditya and his
justice have been made immortal in the Indian Fables. These
stories revolve around the same concept. There are also the stories
of ‘Jahangir Insaf’. Both these kings heard the complainant and
then the one against whom complaint was made in that sequence,
before administering their judgement.

The principles of British justice were based on fair play and

justice. During the 17th century, it was an accepted school of
thought in Britain that the Principles of Natural Justice reigned
supreme over the Statutory Law. The guiding philosophy for this
belief was the understanding that the Almighty God had induced
these principles in the heart of men before his prophet (Moses)
codified the law. It essentially meant that any law passed in
contravention of the Principles of Natural Justice was rendered null
and void. During the 19th century, radical changes occurred in the
thinking process and the general consensus was that laws passed
by the Parliament get an upper hand and the courts cannot set them
aside on the mere premise that they contravene the Principles of
Natural Justice and that courts cannot set themselves above the
Legislature. However, when the particular law is silent about any
aspects, the Principles of Natural Justice must take a driver’s seat.
As far as the America is concerned, the constitution has a provision
for ‘Due Process’, under article 21 that has more or less the status
like our Fundamental Rights. The provision of ' Due Process '
stipulates following provisions: -

Notice; Opportunity to be heard; An impartial Tribunal; and

An orderly course of procedure.

In India, however, the Principles of Natural Justice are not

treated as Fundamental Rights and hence as such, no constitutional
protection has been provided. And yet it may not be entirely out of
context to stress here that Article 14 of the Constitution of India
guarantees equality before law and protection against any
discrimination by any law. Any act of arbitrariness is discursively
a form of discrimination and as such this would tantamount to
transgression of Article 14. Since the Principles of Natural Justice
also forbid arbitrariness, in a way violation of Principles of Natural
Justice would also mean violation of Article 14 of the Constitution.

However, the Principles of Natural Justice are not vague.

They are well understood and established and they are meant to be
minimum protection of the rights of individuals against arbitrary
procedures, may it be judicial or quasi-judicial and as such they are
meant to supplement the laws. There are four basic principles,
which are held to be Principles of Natural Justice.

• Audi Alteram Partem

• Nemo Debat Esse Judex in Propria Causa
• Final Speaking Order
 • Decision in Good Faith
Audi Alteram Partem

‘Audi Alteram Partem’ means hear the other party or conversely,

no one should be condemned unheard. In other words the
delinquent or charged party should be given reasonable
opportunity to defend itself. This has two aspects namely Notice
and hearing. Before any action is proceeded against a person, a
reasonable notice should be given to him and the concerned person
should be given an opportunity to reasonably defend himself,his
actions and his conduct that have come under disciplinary
microscope. Reasonableness may be matter of interpretation from
case to case, but it is expressly essential that the person concerned
must not only be made known of not only the allegations but also
evidence on which such allegations, and charges are made. Not
only this but he should also be given opportunity to meet the
challenge of such evidence or refute the evidence by cross-
examining the oral witnesses. Another restriction provided is that
nothing should be recorded at the back of the charged party. In one
of the case, the Supreme Court has specified three conditions as
follows:

*The adjudicator should receive all the relevant material, which a

party wishes to submit in his support.

*All the evidence may it be oral or documentary of the opponent

party should be taken in the party’s presence.
*Each party should be afforded opportunity for evidence of other
party by cross-examination or by explanation.

If these conditions are satisfied then the Principles of Natural

Justice related to reasonable opportunity are satisfied
.Nemo Debat Esse Judex in Propria Causa
 ‘Nemo debat esse judex in propria causa’ means, no one shall
be a judge in his own cause. The ancient Roman civilisation,
history and its customs tell us that the ‘Caesar’s wife should be
above suspicion’. In the same way the judges should also be above
suspicion. They should be impartial and must be free from bias of
any kind. It also means that a person who is complainant or
witness or prosecutor should not act as a judge. There is nothing in
rules that bars the disciplinary authority from holding the inquiry.
However, he should refrain from doing so unless it is absolutely
necessary. The inquiry is also vitiated if some one who has pre-
judged the issue or expressed opinion about it conducts it. Even the
Supreme Court has ruled in favour of this position, in the State
Bank of Patiala and others v/s S.K. Sharma, 1996 case. In the
Arjun Chowbey v/s Union of India, 1984 case, it was held that
anyone who has personal stake in an inquiry must keep himself
from the conduct of inquiry and order of dismissal passed by the
disciplinary authority against whom the misconduct related, was
set aside by the court.

Generally three types of bias are recognised: -

Pecuniary bias ; Personal bias; and Official bias

Even the slightest pecuniary bias will disqualify the person

in becoming judge. While ownership or share holding qualifies for
pecuniary bias, mere trusteeship of society does not.

Personal bias can be out of friendly or hostile relationship.

In case of allegation of such bias, it should be examined whether
there is reasonable likelihood of apprehension of not getting fair
trial. The test of reasonable likelihood as defined by Supreme
Court in R. Parthasarathy v/s State of Andhra pradesh, 1973 case is
as seen by a reasonable person.
 The official bias is also called as the subject matter bias.
The subject matter bias should be specific. Someone who has
examined himself as witness should not be the inquiry officer.

In case of bias, the cardinal principle is that the

question/doubt of bias should be raised at the first instance.
Objections raised later are likely to be overruled

Speaking Final Order

The third principle of Natural Justice states that the final orders
passed should be a speaking order. It embodies the same spirit
when on number of occasions, we tend to say the file should speak
and the person need not. It is applicable both to the inquiry officer
as well as the disciplinary authority – while giving the inquiry
report for the former and for passing the penalty order or otherwise
for the latter. A speaking order is one, which specifies the reasons
for reaching the conclusions. In the cases of Bhagat Raja v/s Union
of India, 1967 and M.P. Industries v/s Union of India 1966, the
court has held that, if the order does not provide the reasons, then
the fundamental requirements of quasi-judicial proceedings have
not been observed. It was held that giving reasons amounts to
minimising arbitrariness, indicates application of mind and in
general gives satisfaction to the one against whom orders are
passed. This is the only indicator in the proceedings that assures
that the evidence before the authority has been considered by him.
In the S.N. Mukherjee v/s UOI case (AIR 1990 sc) 1984, the
hon'ble Supreme Court has commented, " ---------- what is
necessary is that the reasons are clear and explicit so as to indicate
that the authority has given due consideration to the points in
controversy. The need for recording of reasons is greater in a case
where the order is passed at the original stage. The appellate or
revisional authority, if it affirms such an order, need not give
separate reasons if the appellate or revisional authority agrees with
the reasons contained in the order under challenge. --------.one
should follow this practice even if the administrative procedures
may not demand the Principles of Natural Justice.

Decision in good faith

This principle is actually a derivative of the ‘nemo debat esse

judex in propria causa’, which essentially implies that judge
should be unbiased, impartial and without any interest in the matter
and also to a certain extent from the third principle of Principles of
Natural Justice. This principle says that the decision must be made
in good faith, i.e. It implies that the judge is impartial and without
any interest. It further says that justice should not only be done but
should manifestly appear to have been done. It implies that the
judge has accorded due consideration to the evidence before him
by not just counting the evidence but by weighing it and that he
has arrived at decisions without indication of any favour to either
of the parties during trial or inquiry. In the International Airport
Authority v/s KD. Bali case (AIR 1988 S.C. 1099 ), the hon'ble
Supreme Court has observed, " ----- . The purity of administration
requires that the party to the proceedings should not have
apprehension that the authority is biased and is likely to decide
against the party. But it is not every suspicion that felt by a party
which must lead to the conclusion that the authority hearing the
proceedings is biased. The apprehension must be judged from a
healthy, reasonable and average point of view and not on mere
apprehension of any whimsical person ". In Ashok Kumar v/sState
of Haryana 1987 (AIR S.C. 454 ) case, the hon'ble Supreme Court
has observed ," ------- . The question is not whether the judge is
actually biased or in fact decides partially, but whether there is a
real likelihood of bias. What is objectionable in such a case is not
that the decision is actually tainted with bias but the circumstances
are such as to create a reasonable apprehension in the mind of
others that there is a likelihood of bias affecting the decision. The
basic principle underlying this rule is that justice must not only be
done but must also appear to be done. It is also important to note
that this rule is not confined to cases where judicial power stricto
sensu is exercised. It is appropriately extended to all cases where
an independent mind has to be applied to arrive at a fair and just
decision between the rival claims of the parties. Justice is not the
function of courts alone; it is also the duty of all those who are
expected to decide fairly between contending parties"

Principles of Natural Justice in a nutshell

*Hear the alternate party also

*No one should be judge in his own cause

*The final order should be a speaking order

*The decision should be made in good faith

Though these Principles of Natural Justice are not expressly

applicable to the purely administrative decisions, any order made
in violation of Principles of Natural Justice is void ab initio and is
likely to be annulled and cancelled and hence one is advised to
practice these routinely not only to avert the allegation of any bias
or arbitrariness but also to keep one’s slate clean.