natural justice and fair hearing by: - e.hariharan...
TRANSCRIPT
Volume 1 Issue 3 March 2018 ISSN: 2456-9666
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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.