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2. PRINCIPLES OF NATURAL
JUSTICE

Natural Justice is an important concept in administrative law. The principles of

natural justice are the preliminary basis of a good administrative set up of any
country. The use of the term “Natural Justice” in the judicial context is very
important and frequent. Although there is an adjective “natural” qualifying the
noun “justice”, the concept has nothing to do with laws of nature, which rather
runs counter to it. With the advancement of the civilization our lives started to be
dominated more by the rules of law, rather than law of nature. The supreme and
sovereign power of the state to make laws through the organ of legislatures is one
of the essential features of a democratic establishment and the laws enacted by
the legislatures are liable to be used arbitrarily in the absence of a well-laid down
procedure for its application and administration. The principle of natural justice
goes a long way to remedy the situation arising out of the departure from this
established procedure.

As has been explained that the natural justice is rule of law which principally
guides this concept and the rule of law ensures in arriving at decisions in a fair and
just manner. The principles are contained in the act itself. There are certain
procedural prescriptions in the Civil Procedure Code which mention various rights
of the parties in dispute viz., the right to reply , the right to cross-examine
witnesses, inspection of evidences and documents submitted by the respective
parties etc. which are all basic rights and any judgements arrived at by violating
these rights would broadly come under the purview of natural justice and may be
struck down by the appropriate judicial authorities.

The Principles of Natural Justice are easy to proclaim, but their precise extent is far
less easy to define”. It has been stated that there is no single definition of Natural
Justice and it is only possible to enumerate with some certainty the main
principles. During the earlier days the expression natural Justice was often used
interchangeably with the expression natural Law, but in the recent times a
restricted meaning has been given to describe certain rules of Judicial Procedure.
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The principles of natural justice have evolved under common law as a check on the
arbitrary exercise of power by the State. As the State powers have increased,
taking within their ambit not just the power of governance but also activities in
areas such as commerce, industry, communications and the like, it has become
increasingly necessary to ensure that these powers are exercised in a just and fair
manner. The common law, which is a body of unwritten laws which govern the
legal systems of England, USA, Canada, Australia and other commonwealth
countries including India, has responded to this need to control the exercise of
State powers through applying the principles of natural justice to the exercise of
such powers. These are principles, which are necessary for a just and fair decision-
making. These principles are often embedded in the rules of procedure, which
govern the judiciary. For example, the Civil Procedure Code prescribes a detailed
procedure under which the Defendant has the right to reply to the Plaint; both
sides have the right to inspect the documents relied upon by the other side and
both sides have the right to cross-examine one another’s witnesses. The judgment
must give reasons for the decision.

In India, there is no particular statute, laying down the minimum standard, which
the administrative bodies must follow while exercising their decision-making
powers. There is, therefore, a bewildering variety of administrative procedure. In
some cases, the administrative procedure is controlled by the statute under which
they exercise their powers2. But in some cases, the administrative agencies are
left free to device their own procedure3. But the courts have several times
reiterated that the administrative agencies must follow a minimum of fair
procedure, while exercising their powers. This fair procedure is called the
principles of natural justice. The courts have developed the principles of natural
justice, in order to secure fairness in the exercise of the powers by the
administrative agencies. The principles of natural justice are the Common Law
counterpart of the ‘due process of law’ in the Constitution of the United States.
However wide the powers of the state and however extensive discretion they
confer, the administrative agencies are always under the obligation to follow a
manner that is procedurally fair. The doctrine of natural justice seeks not only to
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secure justice but also to prevent miscarriage of justice. Natural justice implies
fairness, equity and equality. There is several decision of the Hon’ble Supreme
Court, which is sufficient to explain the essential elements of Natural Justice
namely:

1. “Audi Alteram Partem” (Both sides shall be heard)

The principle of audi alteram partem is the basic concept of principle of natural
justice. The maxim audi alteram partem accentuates the rule of fair hearing. It
lays down that no one should be condemned unheard. It is the first principle of the
civilized jurisprudence that a person facing the charges must be given an
opportunity to be heard, before any decision is taken against him. Hearing means
‘fair hearing’.

The components of fair hearing are not fixed but are variable and flexible. Their
scope and applicability differ from case to case and situation to situation. The
concept of fair hearing is elastic and not susceptible of a precise and easy
definition. The hearing procedures vary from the tribunal, authority-to-authority
and situation-to-situation. It is not necessary that the procedures of hearing must
be like that of the proceedings followed by the regular courts.

The objective of the giving the accused an opportunity of fair hearing is that an
illegal action or decision may not take place. Any wrong order may adversely
affect a person. The maxim implies that the person must be given an opportunity
to defend himself. LORD HEWART rightly observed that “ it is merely of some
importance, but is of fundamental importance that justice should not only be done,
but should manifestly and undoubtedly be seem to be done”. Even if the
legislature authorises the administrative action, without any hearing, the law
would be violative of the principles of fair hearing and thus violative of Articles 14
and 21 of the Indian Constitution. The laws of God and man both give the party an
opportunity to defend himself. Even God did not pass a sentence upon Adam
before he was called upon to make his defence.

Law envisages that in the cases classified as ‘quasi-judicial’, the duty to follow
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completely the principles of natural law exists. But the cases, which are classified
as the ‘administrative’, the duty on the administrative authority, are to act justly
and fairly and not arbitrarily. The fine distinction between the quasi-judicial and
administrative function needs to be discarded for giving a hearing to the affected
party. The expression audi alteram partem implies that a person must be given
opportunity to defend himself. This principle is sine qua non of every civilized
society. This rule covers various stages through which administrative adjudication passes starting
from notice to final determination. ‘Hear the other side’ means (a) that a judge must hear
both sides and must not hear one side in the absence of the other. It means that
the delinquent Government servant has a notice of the charges he is called upon
to explain and the allegations on which those are based; (b) that he has access to
all relevant evidence that he wishes to adduce; (c) that he is given the opportunity
to cross-examine the prosecution witnesses and to produce witnesses in defence
and offer himself for examination; (d) that no evidence should be recorded behind
his back but all of it should be taken in his presence; and (e) that no materials
should be relied on against him without his being given an opportunity of
explaining them. Right to fair hearing thus includes: -

1. Right to notice: The term ‘Notice’ originated from the Latin word ‘Notitia’ which
means ‘being known’. Thus it connotes the sense of information, intelligence or
knowledge. Notice embodies the rule of fairness and must precede an adverse
order. It should be clear enough to give the party enough information of the case
he has to meet. There should be adequate time for the party, so that he can
prepare for his defence. It is the sine qua non of the right of hearing. If the notice
is a statutory requirement, then it must be given in a manner provided by law.
Thus notice is the starting point in the hearing. Unless a person knows about the
subjects and issues involved in the case, he cannot be in the position to defend
him. The notice must be adequate also. Its adequacy depends upon the case. But
generally, a notice, in order to be adequate must contain following elements: Time,
place and nature of hearing. Legal authority under which hearing is to be held.
Statements of specific charges, which the person has to meet. The test of the
adequacy of the notice will be whether it gives the sufficient information and
material so as to enable the person concerned to prepare for his defence. There
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should also be sufficient time to comply with the requirements of a notice. Where a
notice contains only one charge, the person cannot be punished for the charges,
which were not mentioned in the notice.

The requirement of notice can be dispensed with, where the party concerned
clearly knows the case against it and thus avails the opportunity of his defence.
Thus in the case of Keshav mills Co. Ltd. v. Union of India, the court upheld the
government order of taking over the mill for a period of 5 years. It quashed the
argument of the appellants that they were not issued notice before this action was
taken, as there was the opportunity of full-scale hearing and the appellant did not
want to know anything more.

2. Right to present case and evidence: Every person before an administrative

authority, exercising adjudicatory powers has right to know the evidence to be
used against him. The court in case of Dhakeshwari Cotton Mills Ltd. v. CIT held
that the assessee was not given a fair hearing, as the Appellate Income Tax
tribunal did not disclose the information supplied to it by the department. A person
may be allowed to inspect the file and take notes. The adjudicatory authority must
provide the party a reasonable opportunity to present his case. This can be done
either orally or in written. The requirement of natural justice is not met if the party
is not given the opportunity to represent in view of the proposed action.

Courts have unanimously held that the oral hearing is not an integral part of the
fair hearing, unless the circumstances call for the oral hearing. In Union of India v. J
P Mitter, the court refused to quash the order of the President of India in respect of
the dispute relating to the age of a High Court judge. It was held that where the
written submission is allowed, there is no violation of natural justice, if the oral
hearing is not granted.

3. Right to cross-examination: The right to rebut adverse evidence

presupposes that the person has been informed about the evidence against him.
Rebuttal can be done either orally or in written, provided that the statute does not
provide otherwise. Cross-examination is a very important weapon to bring out the
truth. Section 33 of the Indian Evidence Act, 1972, provides for the rights of the
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parties to cross-examine. The cross-examination of the witnesses is not regarded

as an obligatory part of natural justice. Whether the opportunity of cross-
examination is to be give or not depends upon the circumstances of the case and
statute under which hearing is held. State of Jammu and Kashmir v. Bakshi Ghulam
Mohd the Government of Jammu and Kashmir appointed a Commissioner of Inquiry
to inquire into the charges of corruption and maladministration against the ex-
Chief Minister of the state. He claimed the right to cross-examine the witnesses on
the ground of natural justice. The Court interpreted the statute and held that only
those witnesses who deposed orally against the chief Minister can be cross-
examined and not of those who merely filed affidavits.

Similarly, in Hira Nath Mishra v. Rajendra medical College, Ranchi, some male
students of medical college entered the girls hostel and misbehaved with the girls.
An enquiry committee was set up against whom the complaints were made. The
complainants were examined but not in presence of the boys. On the report of the
committee, four students were expelled from the college. They challenged the
decision of the committee on the ground of violation of the natural justice. The
court rejected the plea and held that in presence of the boys, the girls cannot be
cross-examined that that may expose them to the harassment.

4. Right to counsel: For sometime the thinking had been that the lawyers should
be kept away from the administrative adjudication, as it saves time and expense.
But the right to be heard would be of little avail if the counsel were not allowed to
appear, as everyone is not articulate enough to present his case. In India few
statutes like the Industrial Disputes Act, 1947, specifically bar the legal
practitioners from appearing before the administrative bodies. Till recently the
view was that the right to counsel was not inevitable part of the natural justice.
But this view has been almost done away with.

2. “Nemo debet essa judex in propria cause” (No man shall be Judge in
his own cause):

The principle, ‘No one can be a judge in his own cause’ implies that the accuser
must not sit in judgment on the accused. The judge can under no circumstances
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combine in himself the roles of judge and jury, of judge and witness or judge and
prosecutor. “Nemo judex in causa sua” the maxim means that a person will not
judge a matter in which he is interested. In recent times another principle has
come into existence and followed by the judiciary is that a judgements should be a
speaking one, which means it should state the reasons behind arriving at a
particular decision. He must be totally free from any bias. Bias can be of three
types: (a) a pecuniary interest, (b) a personal interest, and (c) a general interest, in
the subject matter brought before him for decision. Bias is relevant not only in the
disciplinary authority but also in the inquiry officer even where the inquiry officer is
a different person from the disciplinary authority. The Principle is not confined
merely to the case where the Judge is an actual party to a cause, but applies to a
cause in which he has an interest. An “Interest”, has been defined as a legal
interest or a pecuniary interest and is to be distinguished from “favour”. Such an
interest will disqualify a Judge. The interest (or bias) that disqualifies must be one
in the matter to be litigated. A mere general interest in the general object to be
pursued will not disqualify a magistrate. The interest or bias, which disqualifies is
an interest in the particular case, something reasonably likely to bias or influence
the minds of the magistrates in the particular case. The Law in laying down this
strict rule has regard, not to the motive, which might bias the Judge, but it is to
promote the feeling of confidence in the administration of Justice. As the famous
saying goes – Justice should not only be done but should manifestly and
undoubtedly be seem to be done.The second principle - Audi Alteram Partem – as
the maxim denotes that no one should be condemned unheard. This principle
could be broadly classified as under.
1. Party to an action is prima facie entitled to be heard in his presence
2. He is entitled to dispute his opponent’s case, cross examine his opponents
witnesses and entitled to call his own witnesses and give his own evidence before
Court.
3. He is entitled to know the reasons for the decision rendered by a Court /
Tribunal.

The following further principles emerge from a consideration of what is stated

above:
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(i) That the decision must be made in good faith and

(ii) an order must be a speaking order.

The principle that the decision must be made in good faith implies that the judge
has bestowed due consideration to the facts and evidence adduced during the
inquiry and has not taken into account any extraneous matter not adduced during
the inquiry and that he has arrived at the decision without favour to any of the
parties.

The principle that the order must be a speaking order is based on the premise
that whether the judge has considered all the aspects of a matter before him can
be ascertained only if the order, which he makes, is a speaking order. The
requirement of making a speaking order will minimize the possibility of arbitrary
exercise of power, as the necessary search for reasons will ensure reasonableness.
Reasons are the links between the materials on which certain conclusions are
based and the actual conclusions. They disclose how the mind is applied to the
subject matter while arriving at a decision.

The rules of natural justice are violated:

(a) Where the inquiry is confidential and is held ex parte (without valid reasons) or
the witnesses are examined in the absence of the charged officer;
(b) Where the charged officer is denied the right to call material defence witnesses
or to cross-examine the prosecution witnesses, or he is not given sufficient time to
answer the charges, or the Inquiry Officer acts upon documents not disclosed to
the charged officer;
(c) Where the Inquiry Officer has a personal bias against the person charged.

CONCLUSION.

The natural justice forms the cornerstone of every civilized legal system. It is not
found in the codified statutes. But it is inherent in the nature. Being uncodified, the
natural justice does not have a uniform definition. However, it lays down the
minimum standard that an administrative agency has to follow in its procedure.
Where the legal justice fails, the role of natural justice becomes evident in
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preventing the miscarriage of justice. Even God never denied the natural justice to
the human beings. So the human laws also need to be in conformity with the rules
of natural justice. The rule of fair hearing must be followed to prevent the
miscarriage of justice. If an accused is punished unheard, the purpose of law is
defeated. The adjudicatory authority does not know whether the accused is
innocent or not. What if the accused is punished unheard and later he turns out to
be an innocent? Before taking any action the adjudicatory authority has to keep in
mind the several considerations.