Natural Justice: Rule of Fair hearing and Rule against bias

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Rules of natural justice

Rules of natural justice have been developed with the growth of civilisation and rule of law prevailing in the community. Since time immemorial men have appealed to a higher power, someone beyond his own creation to protect him against excesses of powers. This forms the origin of natural justice, which comes from what is called the natural law or divine law to which all actions must confirm.

Natural justice implies fairness, reasonableness, equity and equality. It is a common law concept and the common-law world counterpart of the American ‘procedural due process’. Natural justice represents great procedural principles evolved by judges which every administrative authority has to take into consideration while taking any decision adversely affecting the rights of a private individual.

In India, the doctrine of natural justice is firmly embedded in articles 14 and 21 of the Constitution. These are attracted whenever a person suffers a prejudice in any administrative or civil action. Mainly there are two principles:

  • Nemo in propria causa judex, esse debet – no one should be made a judge in his own cause, or the rule against bias.
  • Audi alteram partem – no one should be condemned without a fair hearing.

Audi alteram partem – rule of fair hearing

The omnipotent doctrine mandates that no man be condemned unheard. In administrative action this principle is applied to ensure fair play and justice. The rule of fair hearing is a code of procedure and covers every stage of administrative adjudication – beginning from notice to final determination. Rule of fair hearing contains within its ambit the following rights:

Right to notice

Derived from the Latin word notitia, which means being known, notice is the starting of any hearing. Unless a person knows the issues of the case in which he is involved, he cannot defend himself. For a notice to be adequate it must contain-

  • Time, place and nature of hearing
  • Legal authority under which hearing has to be held
  • The specific charges, grounds and proposed actions the accused has to meet.

The test of adequacy ensures that the person concerned has sufficient information to prepare an effective defence. It is not a mere technical formality but a mandatory requirement for a free and fair trial.  In Maharashtra State Financial Corporation v Suvarna Board Mill[i] the court held that a notice calling upon the party to repay dues within 15 days failing which factory would be taken over is sufficient for taking over the factory and no fresh notice is required for pulling down an unauthorised structure when notice for removing such structure has already been given. Where a statute expressly provides that a notice must be given, failure to give notice makes the act void.

Non-issue of notice or mistake in the issue of notice of defective service of notice does not affect the jurisdiction of the authority, if otherwise reasonable opportunity of being heard has been given. Issue of notice as prescribed by law constitutes a part of reasonable opportunity of being heard. If prejudice has been caused by non-issue or invalid service of notice the proceedings would be vitiated. But irregular service of notice would not render the proceedings invalid, more so if the person by his conduct has rendered service impracticable or impossible.

Right to know evidence against oneself

Every person has the right to know the evidence to be used against him. The appellant income tax tribunal didn’t disclose the information supplied to it by the department.[ii] The SC held that the assessee was not given a fair trial. A person may be allowed to take notes, inspect files, etc. Whatever the method be the fundamental principle remains the same, i.e. nothing should be used against a person that hasn’t been brought to his notice.

Right to present evidence

In Union of India v. J. P. Mitter[iii] the court refused to quash the order of the President of India in a dispute relating to the age of high Court judge on the ground that the President didn’t allow an oral hearing. The court was of the view that when the person has been given an opportunity to provide his submissions in writing, there is no abrogation of the principles of natural justice even when an oral hearing is not granted. The administrative authority too must provide full opportunity to testimonial or documentary evidence. In Dwarkeshwari Cotton Mills Ltd. v. CIT, the SC quashed the decision of the administrative authority on the ground that not allowing the assessee to produce material evidence violates the rule of fair hearing.[iv]

Right to rebut adverse evidence

This right presupposes that the person has been informed about the evidence against him. The opportunity to rebut evidence necessarily involves consideration of two factors-

  • Cross-examination- It is the most powerful weapon to elicit and establish truth.
  • Legal Representation- Normally representation through a lawyer in any administrative proceeding is not considered an indispensable part of the rule of natural justice as oral hearing is not included in the minima of fair hearing.

No evidence should be taken behind the other party’s back

The ex parte evidence taken in the absence of the other party violates the principle of fair hearing was discussed by the court in Errington v Minister of Health[v]. The ex parte statements taken in the absence of the other party, without affording an opportunity to rebut, is against the recognised principles of natural justice.

The decision does not imply that administrative agencies cannot obtain information in the manner they consider best. The main thrust of Errington case is that whatever information is obtained by the administrative authority must be disclosed to the other party and the opportunity to rebut it must be provided.

One who decides must hear

The expression ‘one who decides must hear’ which is popular in common law jurisdiction is known by the term ‘institutional or anonymous decisions’ in American law. Contrary to ordinary courts, many administrative proceedings are not the decision of one man from inception to termination. More often than not, one person hears but the other person decides, this works against the principle of fair hearing.

In Gullupalli Nageshwara Rao v. Apsrtc[vi] is a case where an administrative action was challenged on the ground that the one who decides did not hear. In this case, the petitioners challenged the order of the government confirming the scheme of road nationalisation. The Secretary of the Transport Department was the one leading the hearing but the Chief Minister gave the final decision. The SC held that this divided responsibility was against the concept of fair hearing because if one who decides does not hear the party, he gets no opportunity of clearing doubts in his mind by reasoned arguments.

Rule against dictation

Any administrative authority invested with the power of decision making must exercise this power to exercise of its own judgment. The decision must be actually his, who decides. Therefore, if a decision is taken at the direction of any outside agency, there is a violation of fair hearing. In Mahadayal v CTO[vii], the SC quashed the decision of the CTO imposing tax on the petitioner on directions from his superior officer even when he himself was of the opinion that the petitioner was liable to tax.

Financial capacity to attend enquiry

The SC has ruled that if the appellant cannot deposit the amount due to financial incapacity, the failure not to summon defence witnesses at the government’s expense was a violation of the principles of natural justice unless it was decided by the authority that the evidence of such witnesses was not material.[viii]

Decision post haste

Fundamentals of ‘fair hearing’ require that the administrative authority must not haste in making decisions. In S.P. Kapoor v. State of H.P.[ix], the SC quashed the action of the government taken in haste. The SC held that the way whole thing was completed in haste gives rise to the suspicion that some high-up was interested in pushing through the matter hastilyand hence the matter requires to be considered afresh.

When should the third party to a dispute be heard

Essence of any fair adjudication is that the parties to the dispute must be heard. However, should the third party to the dispute is also entitled to hearing particularly if the decision is likely to adversely affect his interest? The SC in Antonio S.C. Pariera v. Rocardina Naronha, where the question was whether a ‘third person’ to the dispute should be heard, answered the question in affirmative, court observed that even if law does not provide for it, a third person must be heard in the same dispute if he is likely to suffer substantial injury by the decision.[x]

Reasoned decision

In India, in the absence of any particular statutory requirement, there is no general requirement for administrative agencies to give reasons for their decisions. However, if the statute under which the agency is functioning requires reasoned decisions, courts consider it mandatory for the administrative agency to give reasons which should not be merely ‘rubber-stamp’ reasons but a brief, clear statement providing the link between the material on which certain conclusions are based and the actual conclusions.[xi]

Enquiry report to be furnished

One of the cardinal principles of administrative law is that any action which ahs civil consequences for any person cannot be taken without complying with the principles of natural justice.

The next important question is ‘whether failure to supply the copy of the report of the inquiry to the delinquent employee before the final decision is taken by the competent authority would violate the principles of natural justice?’ similarly, ‘whether failure to supply a copy of the report of the inquiry to the delinquent would violate the provisions of Article 311(2) of the Constitution of India?’ a Full Bench of the Central Administrative Tribunal, speaking through K. Madhava Reddy,J., Chairman, held that failure to supply a copy of the inquiry report to the delinquent before recording a finding against him is obligatory or failure to do so vitiate the inquiry.

The Supreme Court in H.L.Trehan v. Union of India[xii] observed: “in our opinion, the post-decisional opportunity of hearing does not sub-serve the rules of natural justice. The authority which embarks upon a post-decisional hearing will normally proceed with a closed mind and there is hardly any chance of getting a proper consideration of the representation at such a post-decisional opportunity.” Thus in every case where the pre-decisional hearing is warranted post-decisional hearing will not validate the action except in every exceptional circumstances.

Nemo in propria causa judex, esse debet –Rule against bias

The principles governing the application of the rule against bias are unclear. In particular, there is no firm position on which of the two tests for apparent bias or should be used by the courts. India uses the test, whereas the United Kingdom favours a form of the test. A violation of either of the rules of natural justice renders a decision void.[xiii] They are of wide application, applying to every tribunal or body with the authority to adjudicate upon matters involving civil consequences to individuals.[xiv] They require public officials to follow a fair procedure when making decisions that affect individuals.

The rule against bias ensures fair procedure by excluding decision-makers who are tainted by bias. Under the rule, actual bias is disqualifying even though it is prohibitively difficult to establish. Moreover, certain interests, whether financial[xv] or non-financial,[xvi] can automatically disqualify a decision-maker. In cases not involving actual bias or automatic disqualification, however, the issue revolves around apparent bias. The question then becomes: the decision interest in a certain matter sufficient to disqualify him, on the basis of apparent bias, from making a decision on that same matter?[xvii] The courts have developed two tests to decide if a decision interest in a matter is sufficient to amount to apparent bias.

The tests for apparent bias:

The first is the test. This asks whether the facts, as seen from the perspective of the court, would give rise to a real likelihood of bias.[xviii] It focuses on the assessment of the situation rather than the perception of it. Moreover, it requires a probability, rather than a possibility, of bias. In the words of Lord Bingham – despite the appearance of bias the court is able to examine all the relevant material and satisfy itself that there was no danger of the alleged bias having in fact caused injustice; the impugned decision will be allowed to stand[xix].

The second test is one of “reasonable suspicion”. This is founded on the famous dictum by Lord Hewart CJ that should not only be done but manifestly and undoubtedly be seen to be done…[xx] The test looks for the mere possibility of bias and focuses on appearances whether the facts give rise to a reasonable suspicion of the possibility of bias.[xxi] Unlike the real likelihood test, it takes the perspective of the reasonable observer. This change in perspective is grounded in a desire to ensure public confidence in the administration of justice.[xxii] In India, the courts have come down in favour of the first test.[xxiii] The United obligations under the European Convention on Human Rights have led it to adopt a form of the test the fair-minded test.[xxiv] That is, courts ask whether fair-minded and informed observer, having considered the facts, would conclude that there was a real possibility of bias[xxv]. Or, in the words of Lord Bingham in Lawal, perception of the possibility of unconscious bias is the key[xxvi].

There are two key differences between these tests.[xxvii] The first is with regard to the burden of proof for establishing apparent bias. The real likelihood test is concerned with whether there was a probability of bias. The reasonable danger test has a lower burden it only asks if there was a possibility of bias. The second difference is with regards to perspective. The real likelihood test assesses the probability of bias from the perspective, armed with the knowledge of procedure and statutory context. Public perception of bias is irrelevant. By contrast, the reasonable suspicion test assesses the possibility of bias from the perspective of the public.[xxviii]

Since the real likelihood test has a higher burden of proof and uses the perspective of a more informed body, it is harder to establish bias under this than under the test of reasonable suspicion. The latter test rules out any decision-making procedure that raises the possibility of bias from the perspective of the public. The use of this test, then, ensures that only decisions and decision-makers that are – from the perspective will stand. As a result, public confidence in the administration of justice will be higher under this test than under the test of real likelihood.[xxix]

The advantage of the real likelihood test, however, is that it improves the efficiency of administrative procedures. Since it requires a probability of bias and that from the perspective, informal means of investigation and inquiry, which may appear biased to a reasonable member of the public even if they were in fact fair, would be acceptable under this test. This reduces inhibitions to decision-making processes. However, it could leave the public feeling that the system of administrative justice is unfair and appearances, while not everything, certainly count for something in a legal system.[xxx]

The rule against bias also involves two competing values efficiency and public confidence in the administration of justice. Each of the two tests for apparent bias favours a different value. The real likelihood test requires a probability rather than a possibility of bias, and looks to the assessment of the court. This will allow for decision-making processes which are fair to stand, even if they might appear biased to members of the public. Thus, it allows for efficient decision-making that is uninhibited by public misconceptions. The reasonable suspicion test, by looking at possibilities, and the assessment of the public results in a stricter approach to bias an approach which might inhibit decision-making, but would at the same time, promote public confidence in the administration of justice.

Exceptions to the Principles of Natural Justice

No rule is absolute, not even the rules of natural justice. Even these rules can be excluded either expressly or by necessary implication, subject to the provisions of Articles 14 and 21 of the constitution.

Emergency

In such exceptional cases of emergency where prompt action, preventive or remedial, is needed, the requirement of notice and hearing may be obviated. If the rule of audi alteram partem will paralyse the process, law will exclude it. Even in a situation of emergency where precious rights of people are involved, post-decisional hearing has relevance to administrative and judicial gentlemanliness.

Otherwise some pre-decisional hearing, no matter in a rudimentary form must be given depending on the fact situation of every case. However, the administrative determination calling for the exclusion of rules of hearing or rule against bias is not final. Courts may review the determination of such a situation. In Swadeshi Cotton Mills v. Union of India[xxxi] the court held that the word “immediate” in section 18-A of the Industries (Development and Regulation) Act cannot stand in the way of the application of the rules of natural justice.

Confidentiality

In Malak Singh v. State of Punjab & Haryana[xxxii] the Supreme Court held that the maintenance of surveillance register by the police is a confidential document. No public member or otherwise can have access to it. Moreover, adherence to the rules of natural justice in such a situation may defeat the very purpose of surveillance and there is every possibility of the ends of justice being defeated instead of being served.

Purely administrative matters

A student of the university was removed from the rolls for unsatisfactory academic performance without being given any pre-decisional hearing. The Supreme Court in Jawahar Lal Nehru University v. B.S. Narwal[xxxiii] held that the very nature of academic adjudication appears to negative any right of an opportunity to be heard. Therefore if the competent academic authorities examine and assess the work of a student over a period of time and declare his work unsatisfactory, the rules of natural justice may be excluded. However, this exclusion would not apply in case of disciplinary matters or where the academic body performs non-academic functions.

Impracticability

In R. Radhakrishnan v. Osmania University, where the entire MBA entrance examination was cancelled by the university because of mass coping, the court held that notice and hearing of all candidates is impossible in such a situation, which had assumed national proportions. Thus the court sanctified the exclusion of the rules of natural justice on the ground of administrative impracticability.[xxxiv]

Interim Preventive Action

If the action of the administrative authority is a suspension order in the nature of a preventive action and not a final order, the application of the principles of natural justice may be excluded. The Delhi High Court has held that such an order could be compared to an order of suspension of pending enquiry which is helps in maintaining campus peace – hence the principles of natural justice shall not apply.[xxxv]

Legislative Action

Legislative actions, plenary or subordinate, aren’t subject to the principle of natural justice because it lays down a policy without reference to a particular individual. On the same logic these principles can also be excluded by a Constitutional provision. The Constitution of India excludes the principles of natural justice in Articles 22, 31(A), (B), (C) and 311(2) as a matter of policy.

No person’s right is infringed

Where no right has been conferred on a person by any statute nor any such right arises from common law the principles of natural justice are not applicable. Therefore, where an order of extension was cancelled before it became operational or the order of stepping up salary was withdrawn before the person was actually paid or the services of the probationer terminated without charge the principles of natural justice are not attracted.

Statutory exception or necessity

Disqualification on the ground of bias against a person will not be applicable if he is the only person competent or authorised to decide that matter or take that action. If this exclusion is prohibited there would be no other method for deciding that issue and the whole administration would come to a grinding halt.

Contractual Agreement

In State of Gujarat v. M.P. Shah Charitable Trust[xxxvi], the Supreme Court held the principles of natural justice are not attracted in case of termination of an arrangement in any contractual field. Termination of an arrangement/agreement is neither a quasi-judicial nor an administrative act so that the duty to act judicially is not attracted.

Government Policy Decision

Apex Court is of the view that in taking of a policy decision in economic matters at length, the principles of natural justice have no role to play. In this case employees had challenged the government’s policy decision regarding disinvestment in Public sector undertakings. The Court held that even though workers may have interest in the decision, but unless the policy decision to disinvest is capricious, arbitrary, illegal or uninformed , and is not contrary to law, the decision cannot be challenged on the grounds of violation of the principles of natural justice. Therefore, if in exercise of executive powers the government takes any policy decision, principles of natural justice can be excluded because it will be against public interest to do so.[xxxvii]

Conclusion

Administrative law has always developed in response to the growth of the modern State. The rule against bias is one of the safeguards against abuse of the complex administrative apparatus by decision-makers. The two tests for apparent bias embody two important values. The real likelihood test, by requiring a probability of bias from the perspective, favours efficiency. The reasonable suspicion test, by requiring a mere possibility of bias from the perspective, favours public confidence in the administration of justice.

Audi alteram partam is a concept wider than what it seems to be. It is one of the cardinal principles of the rules of natural justice rather it would be unjustified to think about natural justice without taking into account the concept of audi alteram partam. It mean right to fair hearing. This phrase though sounds simple but it embraces in itself the whole story of justice right from sending notice to post decisional hearing. Though, there are certain exceptions where this principle is not followed. But then these exceptions also have to be justified. There has to be a rational behind skipping this very concept which forms the very basis of the justice.

Frequently Asked Questions

1. Are principles of natural justice specifically enshrined in the constitution?

No, there is no separate provision for principles of natural justice or their application under the Constitution or under any other statute. This is owing to the universal natural and fundamental applicability that no express provisions are required. However in case any exceptions to the principles have to be laid down then the same can only be done in exceptional circumstances or when it has been specifically provided via a statutory provisions.

Edited by Shikhar Shrivastava

Approved & Published – Sakshi Raje 

Reference

[i] 1994 AIR 2657

[ii] Dhakeshwari Cotton Mills Ltd v CIT (1955) 027 ITR 0126

[iii] 1971 AIR 1093

[iv] Dhakeshwari Cotton Mills Ltd v CIT (1955) 027 ITR 0126

[v] AIR 1959 SC 107

[vi] 1959 AIR 308

[vii] Appeal (civil)  344 of 1957

[viii] Mumtaz Hussain Ansari v. State of UP Civil Appeal No. 1234 of 1977

[ix] 1981 AIR 2181

[x] (2006) 7 SCC 740

[xi] M.J.Sivani v. State of Karnataka Appeal (civil)  4564 of 1995

[xii] 1989 AIR 568

[xiii] Anisminic Ltd v. Foreign Compensation Commission, [1969] 2 AC 147 (United Kingdom).

[xiv] Gullapalli Nageswara Rao v. APSRTC, AIR 1959 SC 308 (India).

[xv] Dimes v. The Proprietors, Grand Junction Canal, (1852) 3 HLC 759 (United Kingdom).

[xvi] R v. Bow Street Magistrate ex. p. Pinochet Ugarte, (No. 2) [2000] 1 AC 119 (HL) (United Kingdom).

[xvii]HWR WADE AND CF FORSYTH, ADMINISTRATIVE LAW 382 (10th ed. Oxford University Press 2009)

[xviii]HWR WADE AND CF FORSYTH, ADMINISTRATIVE LAW 382 (10th ed. Oxford University Press 2009)

[xix] R v. Inner West London Coroner ex. p. Dallagio, [1994] 4 AER 139, 162 (United Kingdom).

[xx] R v. Sussex Justices ex. p. McCarthy, 1 (1924) 1 KB 259 (United Kingdom).

[xxi] HWR WADE AND CF FORSYTH, ADMINISTRATIVE LAW 382 (10th ed. Oxford University Press 2009)

[xxii]HWR WADE AND CF FORSYTH, ADMINISTRATIVE LAW 384 (10th ed. Oxford University Press 2009)

[xxiii] Jiwan K. Lohia v. Durga Dutt Lohia, AIR 1992 SC 188 (India)

[xxiv] European Convention for the Protection of Human Rights and Fundamental Freedoms, Council of Europe, art.6(1), Nov. 4, 1950, 1950 ETS 5

[xxv] Porter v. Magill, [2001] UKHL 67 (United Kingdom)

[xxvi] Lawal v. Northern Spirit Ltd, [2003] UKHL 35 (United Kingdom).

[xxvii] PAUL JACKSON, NATURAL JUSTICE 48 (2nd ed. 2006).

[xxviii] HWR WADE AND CF FORSYTH, ADMINISTRATIVE LAW 383 (10th ed. Oxford University Press 2009

[xxix] TIMOTHY ENDICOTT, ADMINISTRATIVE LAW 157 (Oxford University Press 2009).

[xxx] John McMillan, Natural justice: too much, too little or just right?, 58 AIAL Forum 33 (2008).

[xxxi] 1981 AIR 818

[xxxii] 1981 AIR 760

[xxxiii] 1980 AIR 1666

[xxxiv] Appeal (civil) 4874 of 2007

[xxxv] Abhay Kumar v K. Srinivasan  AIR 1981 Delhi 381

[xxxvi] 1994 SCC (3) 552

[xxxvii] Balco Employees Union V. Union of India Transfer Case (civil) 8  of  2001