2012

IMI, New Delhi Submitted to: Prof. Shailendra Nigam Anshu Sethia 11PGDMHR06

[RULES OF NATURAL JUSTICE IN INDIAN CONTEXT]

How are the rules of natural justice interpreted in India?

Industrial Jurisprudence

Contents
Introduction .................................................................................................................................................. 3 Origin of the term natural justice ................................................................................................................. 3 Rule against bias ........................................................................................................................................... 4 Actual Bias ............................................................................................................................................. 4 Imputed Bias ......................................................................................................................................... 4 Apparent Bias ........................................................................................................................................ 5 Right to fair hearing ...................................................................................................................................... 5 Prior notice of hearing .......................................................................................................................... 6 Opportunity to be heard ....................................................................................................................... 6 Right to legal representation ................................................................................................................ 6 Natural Justice in Indian Context .................................................................................................................. 7 REFERENCES ................................................................................................................................................ 11

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Introduction
The laws of nature are designed to promote survival rather than justice. Nature is governed by principles such as the survival of the fittest and prevalence of might over right. When a herd leaves its weak members behind there is no question of the weak being supported or protected. Therefore, natural justice is not justice found in nature; it is a compendium of concepts which must be naturally associated with justice, whether these concepts are incorporated in law or not. Natural justice is a term of art that denotes specific procedural rights in the English legal system and the systems of other nations based on it. 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. Natural justice is identified with the two constituents of a fair hearing, which are the rule against bias (nemo iudex in causa sua, or "no man a judge in his own cause"), and the right to a fair hearing (audi alteram partem, or "hear the other side" or both sides should be heard). The other principles which have been stated to constitute elements of Natural Justice are: The parties to a proceedings must have due notice of when the Court / Tribunal will proceed; The Court / Tribunal must act honestly and impartially and not under the dictation of other persons to whom authority is not given by Law.

Origin of the term natural justice

The phrase is, of course, used only in a popular sense and must not be taken to mean that there is any justice natural among men. Among most savages there is no such thing as Justice in the modern sense. In ancient days a person wronged executed his own justice. Amongst our own ancestors, down to the thirteenth century, manifest felony, such as that of a manslayer taken with
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his weapon, or a thief with the stolen goods, might be punished by summary execution without any form of trial. Again, everyone has heard of compurgation and of ordeal; and it is hardly necessary to observe that a system of ordeal by water in which sinking was the sign of innocence and floating the sign of guilt, a system which lasted in this country for hundreds of years, has little to do with modern ideas of justice. It is unnecessary to give further illustrations. The truth is that justice is a very elaborate conception, the growth of many centuries of civilization; and even now the conception differs widely in countries usually described as civilized.

Rule against bias

A person is barred from deciding any case in which he or she may be, or may fairly be suspected to be, biased. This principle embodies the basic concept of impartiality, and applies to courts of law, tribunals, arbitrators and all those having the duty to act judicially. A public authority has a duty to act judicially whenever it makes decisions that affect people's rights or interests, and not only when it applies some judicial-type procedure in arriving at decisions. 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 favor. Such an interest will disqualify a Judge. 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.
Actual Bias

Actual bias is established where it is actually established that a decision-maker was prejudiced in favor of or against a party. However, in practice, the making of such an allegation is rare as it is very hard to prove.
Imputed Bias

One form of imputed bias is based on the decision-maker being a party to a suit, or having a pecuniary or proprietary interest in the outcome of the decision. Once this fact has been established, the bias is irrefutable and disqualification is automatic the decision-maker will be barred from adjudicating the matter without the need for any investigation into the likelihood or suspicion of bias.

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Apparent bias is present where a judge or other decision-maker is not a party to a matter and does not have an interest in its outcome, but through his or her conduct or behavior gives rise to a suspicion that he or she is not impartial.

Right to fair hearing

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. party to an action is prima facie entitled to be heard in his presence He is entitled to dispute his opponents case, cross examine his opponents witnesses and entitled to call his own witnesses and give his own evidence before Court. He is entitled to know the reasons for the decision rendered by a Court /Tribunal.

It was seen that he who shall decide anything without the other side having been heard, although he may have said what is right, will not have done what is right, in other words has it is now expressed, Justice should not only be done but should manifestly be seem to be done. It is fundamental to fair procedure that both sides should be heard. The right to a fair hearing requires that individuals are not penalized by decisions affecting their rights or legitimate expectations unless they have been given prior notice of the cases against them, a fair opportunity to answer them, and the opportunity to present their own cases. In natural justice cases this dictum was generally understood to mean that a duty to act judicially was not to be inferred merely from the impact of a decision on the rights of subjects; such a duty would arise only if there was a "superadded" express obligation to follow a judicial-type procedure in arriving at the decision. While considering the Audi Alteram Partem rule it was observed that A person against whom an order to his prejudice may be passed should be informed of the charges against him. Such person should be given an opportunity of submitting his explanation which also includes the right to know the oral and documentary evidence which are to be used against him. Witnesses who are to give evidence against him be examined in his persons with right to cross examine them.
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To lead his own evidence both oral and documentary, in his defense.

Prior notice of hearing

Natural justice allows a person to claim the right to adequate notification of the date, time, and place of the hearing as well as detailed notification of the case to be met. It has been suggested that the requirement of prior notice serves three important purposes:

The interest in good outcomes giving prior notice increases the value of the proceedings as it is only when the interested person knows the issues and the relevant information that he or she can make a useful contribution.

The duty of respect the affected person has the right to know what is at stake, and it is not enough to simply inform him or her that there will be a hearing. The rule of law notice of issues and disclosure of information opens up the operations of the public authority to public scrutiny.

Opportunity to be heard

Every person has the right to have a hearing and be allowed to present his or her own case.
Right to legal representation

There is no inherent common law right to legal representation before a domestic tribunal. A tribunal has the discretion to admit either a legally qualified or unqualified counsel to assist the person appearing before it, based on the facts of the case. When assessing whether a party should be offered legal assistance, the adjudicator should first ask whether the right to be heard applies, and, secondly, whether counsel's assistance is needed for an effective hearing given the subject matter, bearing in mind the consequences of such a denial. In R. v. Secretary of State for Home Department, ex parte Tarrant (1983), Webster J. set out six factors to be considered when deciding whether to allow representation by counsel, namely:

the seriousness of the charge and the potential penalty; Whether any points of law are likely to arise; whether the prisoner is capable of presenting his own case; whether they are any procedural difficulties faced by prisoners in conducting their own defense;
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whether there is reasonable speed in making the adjudication; and Whether there is a need for fairness between prisoners or between prisoners and prison officers.

Natural Justice in Indian Context

Natural justice can be said to contribute a moral dimension to positive law. Since the Supreme Court of Indias 1978 decision in Maneka Gandhi, Indian courts have read aspects of natural justice into articles 14 and 19 (reasonableness), and article 22 (fairness) of the Constitution of India. The Honble Supreme Court in Canara Bank and others vs. Sri Debasis Das and others reported in AIR 2003 Supreme Court 2041 while considering the scope and ambit of the Canara Bank Officers Employees (conduct) Regulations 1976 had analyzed in depth Natural Justice and Audi Alteram Partem. The observation in the said Judgment could be summarized as follows: Natural Justice is another name of commonsense Justice. Rules of Natural Justice are not codified canons. But they are principles ingrained into the conscience of man. Natural Justice is the administration of Justice in a commonsense liberal way. Justice is based substantially on natural ideals and human values. The administration of Justice is to be freed from the narrow and restricted considerations which are usually associated with a formulated law involving linguistic technicalities and grammatical niceties. It is the substance of Justice which has to determine its form. The expressions Natural Justice and Legal Justice do not present a water tight classification. It is the substance of Justice which is to be secured by both and when ever legal Justice fails to achieve this solemn purpose, natural Justice is called in aid of legal Justice. Natural Justice relieves legal Justice from unnecessary technicality, grammatical pedantry or logical prevarication. It supplies the omissions of a formulated law.

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As Lord Buckmaster said, no form or procedure should ever be permitted to exclude the presentation of a litigants defence. The adherence to principles of Natural Justice as recognized by all civilized States is of Supreme importance when a quasi judicial body embarks on determining disputes between the parties, or any administrative action involving civil consequences is in issue.

Notice it is the first limb of the principle of Audi Alteram Partem. Notice should apprise the party the case he has to meet. Adequate time should be given to make his representation.

In reason time the concept of Natural Justice has undergone a great deal of change. In the sense that what particular rule of Natural Justice to be applied depends upon the facts of that case, the statute governing the issue etc. The old distinction between an Administrative Act and Judicial Act does not survive any longer. Every Administrative order which involves civil consequences must follow the rules of Natural Justice. The recording of reasons in an order passed by a Court or a Tribunal is also one of the principles of the Audi Alteram Partem Rule. The Honble Supreme Court in Sri Jain Swetambar Terapanthi Vid (s) vs. Phundan Singh reported in AIR 1999 SC 2322 was considering the validity of an Appellate Court against and grant of injunction. In the said case the Trial Court granted an order of injunction and the Appellate Court upset the order of injunction granted by the Trial Court on the ground that the Trial Court has gone wrong in recording prima facie satisfaction. The Honble Supreme Court set aside the order of the Appellate Court on the ground that the Appellate Court did not discuss the materials on record nor recorded contrary finding. In the famous Meneka Gandhi vs. Union of India reported in AIR 1978 Supreme Court 597 the Honble Supreme Court discussed the increasing importance of Natural Justice and observed that Natural Justice is a great humanizing principle intended to invest law with fairness and to secure Justice and over the years it has grown in to a widely pervasive rule. The Supreme Court extracted a speech of Lord Morris in the House of Lords which is a very interesting speech, That the conception of natural justice should at all stage guide those who discharge judicial functions is not merely an acceptable but is an essential part of the philosophy of the law. We often speak of the rules of natural justice. But there is nothing rigid or mechanical about them. What they comprehend has been analyzed and described in many authorities. But any analysis must bring into relief rather their spirit and their inspiration than any neither precision of
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definition nor precision as to application. We do not search for prescriptions which will lay down exactly what must, in various divergent situations, be done. The principle and procedures are to be applied which, in any particular situation or set of circumstances, are right and just and fair. Natural justice, it has been said, is only fair play in action. Nor do we wait for directions from Parliament. The common law has abundant riches; there may we find what Byles, J., called the justice of the common law. Thus, the soul of natural justice is fair play in action and that is why it has received the widest recognition throughout the democratic world. In the United States, the right to an administrative hearing is regarded as essential requirement of fundamental fairness. And in England too it has been held that fair play in action demands that before any prejudicial or adverse action is taken against a person, he must be given an opportunity to be heard. The rule was stated by Lord Denning, M.R. in these terms in Schmidt v.Secy. of State for Home Affairs: - (1969) 2 Ch. D 149 Where a public officer has power to deprive a person of his liberty or his property, the general principle is that it has not to be done without his being given an opportunity of being heard and of making representations on his own behalf. A key flaw in the Indian judiciarys interpretation of natural justice is the claim that courts cannot import more expansive notions of natural justice, against which to measure the sufficiency of statutory procedural safeguards or executive action, into the Constitution. This position is reminiscent of a disturbing, emergency-era judgment, Additional District Magistrate, Jabalbur vs. S.S. Shukla(Jabalpur), in which the Supreme Court exclaimed: The principles of natural justice must always hang, if one may so put it on pegs of statutory provisions or necessarily flow from them and have no independent existence. Fundamental Rights are basic aspects of rights selected from what may previously have been natural or common law rights. These basic aspects of rights are elevated to a new level of importance by the Constitution. Any other coextensive rights, outside the Constitution, are necessarily excluded by their recognition as or merger with Fundamental Rights. The Supreme Court of India has since recognized that the majority decision in Jabalpur violated the fundamental rights of a large number of people in this country. However, Indian courts continue to defer to statutory formulations of procedural rules, which seem to inherently satisfy constitutional requirements of natural justice, in a manner consistent with the Supreme Courts reading of article 21 of the Constitution in Jabalpur.
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Indian jurisprudence on preventive detention under the NSA11provides a stark example of how courts, notwithstanding the discrediting of Jabalpur, continue to privilege statutory procedures over greater notions of natural justice, and thereby deprive petitioners of a full and meaningful enforcement of their fundamental right to life and liberty. Notwithstanding the Supreme Court of Indias apparent turn away from its decision in Jabalpur, the emergency-era ethos regarding natural justice persists. The problem is not that courts are unwilling to read natural justice into the Constitution. The problem is that the judiciarys perception of what constitutes natural justice is equivalent to that which is statutorily pronounced. Natural justice in the Indian context is thus stripped of its larger sense of procedural fairness and reasonableness, in favor of legal positivism and judicial deference to legislators and the executive. As a result, courts offer limited recourse for persons detained under preventive detention legislation. Detunes are deprived of any basis upon which to claim access to such procedural mechanisms as the right to a lawyer, or other fundamental manifestations of natural justice. These measures are particularly necessary in the context of preventive detention, which entails dire consequences that resemble those foreseen by criminal law, but exceed them in severity. Specifically, preventive detention entails the complete deprivation of an individuals right to liberty, on the basis of a hypothetical threat, for an indefinite period of time, without the right to an automatic judicial hearing. Indian courts must engage all facets of Indian law and adopt an expansive and meaningful reading of natural justice. Only this can safeguard the rights of Indian citizens against the states oftentimes illegitimate resort to preventive detention.

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REFERENCES
About natural justice o http://en.wikipedia.org/wiki/Natural_justice o http://www.hcmadras.tn.nic.in/jacademy/articles/Principles%20of%20Natural%2 0Justice%20T.S.%20Sivagnanam%20.pdf Rules of natural justice in Indian context o http://www.itatonline.org/articles_new/index.php/principles-of-natural-justice/ o http://www.hrdc.net/sahrdc/hrfeatures/HRF216.pdf

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