Principles of Natural Justice

Doctrine of Bias/Fair Hearing

Audi Alterm Partem
Reasoned Decision
Due Process
Principles of Equality and Affirmative
Actions

Some Background on Natural Justice

It is considered as one of the important principles of the study

and application of the any law and legal study.

Principle of natural justice derived from the common law
practice.
It is not codified, but it developed on the basis of the rules
made by Judges while rendering disputes.
Originally, this principle applied to adversarial process of
courts, only later it was extended to inquisitorial system, quasijudicial bodies, administrative bodies ranging from an action of
a minister to a tribunal.
Natural Justice represents the basic irreducible procedural
standard with which administrators are required to comply.
Foulkers 1995

Some Background on Natural Justice

Natural Justice plays as much as important role in England as

does Due Process under the United States Constitution.

Wade & Forsyth say that there are two aspects of natural justice
that needs to be taken into consideration i.e. narrow and wider
aspect. In a narrow sense, rules of natural justice are
regarded as principles of ultra vires. Therefore, any decision
failing to provide justice to one of the parties while hearing a
case, would be held ultra vires. Violation of natural justice,
would held a decision invalid. In a wider sense, it covers the
elementary problem of the administrative justice i.e. how far
administrative power to rest on common principles, how far is it
right for courts of law to impart their own standards of justice to
the administration etc. Further its says that there are different
rules of natural justice, therefore, they are to be flexibly applied
depending on precise conditions. -----Wade & Forsyth
Administrative Law 9th edition

Some Background on Natural Justice

People regard natural justice as a vague concept and so many

authors agree that it lacks a precise definition. However, in

Ridge v Baldwin 1964 (a case which has a significance in
England. During World War II practice of natural justice was
halted, but this case is believed to have given birth to natural
justice in profound manner) it has been held that:
In modern times opinions have sometimes been expressed to the
effect that natural justice is so vague as to be practically
meaningless. But I would regard these as tainted by the perennial
fallacy that because something cannot be cut and dried or nicely
weighed or measured therefore it does not exist. The idea of
negligence is equally insusceptible of exact definition and
natural justice as it has been interpreted in the courts is much
more definite than that.

Some Background on Natural Justice

Dr. Bonhams case 1610: Chief Justice Coke declared an Act

of parliament void if it made a man judge in his own cause, or

was otherwise against common right and reason.
R v. Home Secretary ex p. Pierson: Where wide powers of
decision making are conferred by statute, it is presumed that
Parliament implicitly requires that decision to be made in
accordance with rules of natural justice.
Natural Justice is rest on the principle that whomever an action
has been taken should be given an opportunity to present his/
her say. It could range from an employee of TU who has been
expelled, an individuals whose land has been confiscated for
public purpose, a person who has not been given license within
stipulated time, an employee of an factory who has been taken
legal action for failing to comply with a duty.

Importance of Natural Justice

Rules of Natural Justice functions so as to restrict freedom

of administrative action, with the aim of offering protection to

the citizen, they also operate to protect officials. ---Peter
Leyland & Terry Woods, Textbook on Administrative
law
Author argues that this is possible in two ways (a): at
first, this principle provides guidelines to administrative
agencies so what they are supposed to do i.e. to follow their
legal responsibilities and, (b): secondly, such guidelines will
enhance the quality and effectiveness of a decision avoiding
the need for intervention by courts.
Principles of natural justice always plays an vital role in
determining whether a decision was made in presence or
absence of right discretionary powers. If done procedurally
fair, higher chances of being right.

Importance of Natural Justice

Principle of natural justice could help to address the omission

of legislature to hear the parties in a dispute thereby checking

the actions of administrative agencies.
In the case of Cooper v. Wandsworth Board of Works
(1863), Justice Byles expressed that , Although there are no
positive words in a statute requiring that a party shall be heard,
yet the justice of the common law will supply the omission of the
legislature.
Wade regards the development of Natural Justice have
devised a kind of code of fair administrative procedure. He
further says that, Natural Justice is one of the most active
departments of administrative law. Wade & Forsyth,
Administrative Law 9th edition

Definition of Natural Justice

Lord Esher M.R defined it as The natural sense of what is

right and wrong in Violent v. Barrett 1885. He later defined it

as fundamental justice in the case of Hopkins v. Smethwick
Local Board of Health 1890
The rules of natural justice/fairness are a set of uncodified
common law rules offering procedural safeguards that have
been developed over time by the judiciary themselves to
ensure that decision makers act according to basic standards
of the fairness.---Peter Leyland & Terry Woods,
Textbook on Administrative law
Wade and most other prominent authors regard natural
justice to include two fundamental rules: (a) that a man may
not be a judge in his own case and, (b) a mans defence must
always be fairly heard.

Doctrine of Bias
Nemo judex in re sua No man a judge in his own case
Justice should not only be done, but should manifestly and

undoubtedly be seen to be done

The basic understanding is that whoever is going to make a
decision, he/she must never be biased. Thus, administrative
authority as a quasi- judicial body should always be impartial,
fair and free from bias.
No tribunal can be Judge in his own cause and any person,
who sits in judgment over the rights of others, should be free
from any kind of bias and must be able to bear an impartial
and objective mind to the question in controversy.

Observation on Doctrine of Bias

Taylor v. Lawrence 2002: A judge was not disqualified despite

being a partner of a solicitors firm which was involved in the

litigation since Judge had no knowledge about its involvement.
R v. Deal Justices 1881: A justice of peace was not disqualified
despite being a member of a society for preventing cruelty to
animals from hearing a prosecution instituted by the society.
Citing these cases, Wade argues that a line must be drawn between
genuine and fanciful cases. Note that these cases could be termed as
an exception to a general rule against doctrine of bias.
Factors such as religion, ethnicity, national origin, age, class etc. as
well as, ordinarily, judges educational, social, employment or service
background, nor his political associations, professional associations,
membership of social, sporting or charitable bodies, prior judicial
opinions or articles etc. are relevant while determining bias.

Pecuniary Bias
Biasness as to certain amount of money or benefits from a case.
It could be both (a) small as well as (b) large in terms of money

or benefits
Dimes v. Grand Junction Canal 1852: no man is to be a
judge in his own case, should be sacred. And this is not be
confined to a cause in which he is a party, but applies to a cause
in which he has an interest. In this case a judge was a share
holder of a company which was one of the parties in this dispute.
The court has later elaborated that if a judge have an interest in
a dispute, this will mostly have an influence to inferior tribunals.
Having said so, it further said that, This will be a lesson to all
inferior tribunals to take care not only that in their decrees they
are not influenced by their personal interest, but to avoid the
appearance of labouring under such as influence.

Personal Bias
Decision makers are not supposed to be personally bias to

parties in disputes or even others such as witness.

It is usually perceived as the most judicially scrutinized bias
than the other ones.
With the growing interdependability of human relations,
cases of personal bias favoring one or the other party, have
grown tremendously.
Personal bias can be of two types:
1. Where the presiding officer has formed the opinion
without finally completing the proceeding.
2. Where he is interested in one of the parties either directly
as a party or indirectly as being related to one of the
parties.

Bias as to subject matter (official bias)

Sometimes even decision makers could have legal interest in the

disputes. Such decision makers should never take a part while

deciding.
A judge may have a bias in the subject matter, which means that
he is himself a party, or has some direct connection with the
litigation, so as to, constitute a legal interest. A legal interest
means that the Judge is in such a position that bias must be
assumed. The smallest legal interest will disqualify the Judge.
R v. Bow Street Magistrate ex. P. Pinochet Ugarte: In this case it
has been held that principle of automatic disqualification in fact
extends beyond pecuniary and proprietary interests. It applies
equally where the judge is himself a party or has a relevant
interest in the subject matter of the litigation, even if he has no
financial interest in its outcome.

Theories applied for disqualifying bias by

Wade & Forysth, Administrative law, 9th edi
There are theories which have been developed by courts to determine
whether bias is to be qualified or disqualified
Real Likelihood: Courts will see if there is really likelihood of
being bias or not. If there is higher probability, then bias could be
disqualified. Wade argues most judges have applied this test.
Real danger: Here, Court will see how fair-minded person or
informed observer would conclude that there was a real possibility
that the tribunal was biased.
Reasonable suspicion: It is based on the principle that Justice
must be seen to be done, and that no person should adjudicate in
any way if it might reasonably be thought that he ought not to act
because of some personal interest. It focuses on suspicion aspect.
Real possibility: Court could also see if there is real possibility of
being bias or not. If yes, then it could be qualified as being bias.

Audi Alteram Partem

It means hear the other side. It is one of the fundamental

procedural requirements before any decision or action is taken, no

matter whatever its type and purpose is.
Based on an elementary principle that both sides should be given
opportunity to speak before making a decision
Note: Wage & Forysth have described Audi Alteram Partem under
the heading of The right to a fair hearing
Wage & Forysth argues that Audi Alteram Partem is also broad
enough to include the rule against bias, since a fair hearing must be
an unbiased hearing
It rests on the principle that a body making a decision should hear
the person who is going to be affected by that decision.
Even with the advent of many administrative agencies, this
principle is as applicable to administrative bodies as it is applicable
to ordinary courts.

Audi Alteram Partem

Wood v. Wood 1874: This rule is not confined to the conduct of

strictly legal tribunals, but is applicable to every tribunal or body of

persons with authority to adjudicate upon matters involving civil
consequences to individuals.
Audi Alteram Partem as Procedural fairness:
Beatson, Administrative Law, Text and Materials 3rd edition:
Although it is self-evident that the decision-maker must be
impartial-meaning free from bias-the overall goals of procedural
fairness can be secured only if it goes on to apply a decisionmaking process which is itself fair. This aspect of procedural
fairness is sometimes referred to as the right to a fair hearing, and
is said to be summed up by the latin maxim audi alteram partemliterally meaning hear the other side.
Note: This is consistent with what Wade says about audi alteram
partem and right to a fair hearing

Elements of Fair Hearing

Elements of Fair Hearing:
1. Adjudicating authority receives all the relevant material produced
by the individual
2. The adjudicating authority discloses the individual concerned
evidence or material which it wishes to use against him.
3. The adjudicating authority provides the person concerned an
opportunity to rebut the evidence or material which the said
authority issues to use against him
Additionally, it should also include following things:
Notice: Notice is the primary stage of the hearing. Imagine if a
person can or cannot defend him/herself without knowing case?
Notice should be proper, should have adequate time etc.
Hearing: This is the fundamental aspect of administrative law.
Hearing could be claimed under constitution, Parent Act, Rules

Importance of Audi Alteram Partem

Cooper v. Wandsworth Board of Works 1863 (Case from
England) Fact: Law required notifying public authorities to construct
a house prior to 7 days. A person sent notice, but was never delivered.
House was demolished as mentioned in the law. Chief Justice Erle
held that I cannot conceive any harm that could happen to the
district board from hearing the party before they subjected him to a
loss so serious as the demolition of his house; but I can conceive a
great many advantages which might arise in the way of public order,
in the way of doing substantial justice, and in the way of fulfilling the
purposes of the statute, by the restriction which we put upon them,
that they should hear the party before they inflict upon him such a
heavy loss.
In this case, Justice Will also held that this rule is of universal
application and founded on the plainest principles of justice. Justice
Byles expressed even if statute is silent, this principle is applicable.

Reasoned Decision
Administrative tribunals are supposed to make decisions with

reasons. However, introduction of reasoned decision to

administrative law is not that old subject.
Phillips and Jackson, in Constitutional and Administrative law,
8th edition argues that the administrative tribunal should furnish
a written or oral statement of the reasons for the decision.
Definitions, Websters Third New International Dictionary 1986
an expression or statement offered as an explanation of a belief
or assertion or as a justification of an act or procedure. Further
it defines as the power of comprehending, inferring, or thinking
esp. in orderly, sensible, rational ways.
Thus, it could be argued that a decision made by an administrative
tribunal in a rational manner following procedures as prescribed by
the authorizing laws is a reasoned decision.

Reasoned Decision
In cases like Iveagh (Earl) v. Minister of Housing and Local

Government 1964 and Elliot v. Southwark L.B.C. 1976, it has

been held that the reasons given must be proper, adequate
reasons which are intelligible and deal with the substantial
points which had been raised.
Sunil Batra v. Delhi administration 1979: Through this case,
the Supreme Court of India has made a decision requiring
administrative agencies to give reasons while making
decisions i.e. requiring them to substantiate their decisions
with reasons.
Reasoned decision is sometimes referred as a drawing line
between proper and excess use of administrative discretionary
power. Thus, it aims at minimizing administrative
arbitrariness and ensuring good administration.

Reasoned Decision
Reasoned decision is an integral part of the study of

administrative law as a party is entitled to know the reason for

the decision apart from the decision itself.
Reasoned decision usually involves weighting of evidences of
both parties, applying and interpreting the applicable law and
facts, making a decision based on them and informing both
parties about the decision as well as reasons for such decision.
In absence of a reasoned decision, administrative decisions are
mostly questionable on the basis of judicial review.
Reasoned decision is often synonymously used as Speaking
Orders which means decisions or orders that speak to itself.
If the order passed by administrative agencies are not supported
by reasons, that would amount to violation of natural justice.

Reasoned Decision
S.N. Mukherjee vs Union Of India 1990: "We are convinced that if

tribunal proceedings are to be fair to the citizenreasonsshould be

given to the fullest practicable extent. Adecisionis apt to be better
if thereasonsfor it have to be set out in writing because
thereasonsare then more likely to have been properly thought out.
Further, a reasoneddecisionis essential in order that, where there
is a right of appeal, the applicant can assess whether he has good
grounds of appeal and know the case he will have to meet if he
decides to appeal.
Menka Gandhi v. Union of India 1978: This case held that giving
reasons is a healthy check against abuse and misuse of power.
Nepal Government v. RaghuNath Agrawal 2062: A decision should
state on the basis of what facts and evidence that decision was
made. Such decision should never be made on arbitrariness and
should be based on reasoned decision.

Due Process
Due Process refers to those practices and processes which

must be followed while making an order or a decision.

It could also be understood as a proper way of making a
decision applying process what is required under a law.
Due Process is further divided into procedural due process
and substantive due process. In a general understanding,
procedural due process relates with the process of
exercising a right; whereas, substantive due process relates
with rights protected under a law.
In administrative law, procedural due process is mostly
studied than substantive due process.
In the study of administrative law, the term due process is
often used as administrative due process

Due Process in US
Due process in the US context is as similar to the natural justice

in the UK and other countries. For e.g in a US case of Goldberg

v. Kelley 1970 applying the due process clause under the 14th
amendment of the US constitution it has been held that the
hearing must include:
1. be at a meaningful time and in a meaningful manner
2. must get timely & adequate notice detailing reasons for
proposed termination
3. must have effective opportunity to defend by confronting
adverse witnesses and presenting own arguments and evidence
orally
4. right to bring counsel
5. impartial decision maker, who must state reasons for
determination and indicate evidence relied upon.

Due Process in US
5th and 14th amendment of the US constitution has a provision on

due process mentioning that deprivation of life, liberty, or

property, without due process of law is prohibited.
Note: Although it seems that due process is followed in cases relating
to the life, liberty and property, both 5th and 14th have been
interpreted broadly by the US courts to guarantee due process of an
aggrieved individual from administrative decision making process.
Cleveland Board of Education v. Loudermill 1985: Public
Employees were terminated without being afforded a
pretermination hearing. The court applying due process clause held
that certain public employees could have property interest in their
employment. Court also said that some kind of hearing is required
before termination and such hearing should be an initial check
against mistaken decisions

Due Process in US
Londoner v. Denver 1908: A Denver ordinance allowed city

counsel to establish a special assessment district for paving

streets. The total cost of the job would be collected among the
individual property owners in the district. It was binding.
Owners were allowed to file complaints, but no opportunity for
an oral hearing. Court held that the process violated due
process.
This decision further held that due process right, i.e. right to
natural justice in general understanding, are applied against
administrative adjudication, but not against administrative law
making. (Note that the issue of due process questioned that act
of law making, but only question the act of decision making.
Therefore, in administrative adjudication due process or natural
justice is applied, while may not be such with administrative law
making.

Due Process
Although Interim Constitution does not directly mention the term

due process, Article 24 does provide some procedural safeguards to

individuals to defend themselves. For e.g. 24(8) says that every
person shall have the right to be informed of any proceedings taken
against him or her.
In addition to this, there are many relevant Statutes that have
protected not only due process, but also principles of natural
justice.
Wade & Forsyth, Administrative Law, 9th edition: The right to fair
hearing has been used by the courts as base on which to build a
kind of code of fair administrative procedure, comparable to due
process of law under the Constitution of the United States.
Justice Frankfurter in McNab v. United States 1943: The history of
liberty has largely been the history of the observance of procedural
safeguards.

Some Nepali Cases

Saili Giri v. Kathmandu Guthi Tahasil Karyalaya and

others 2055: An investigating officer should provide opportunity for

hearing to parties when his/her decision will affect parties in dispute. It
also held that a decision made without giving opportunity of hearing
and the defense of such would be inconsistent with the principles of
natural justice.
Ruk Kamal Shrestha v. Land Reform Office
KavrePalanchowk and others 2059: A decision made by land
reform officer on the basis of report that lacked procedural
requirements of notifying parties is against the law. Further it also held
that the decision lacked judicial mind and proper evaluation of fact and
evidence.
Chandra Shekhar Nayak v. Home Ministry and others: A
decision to remove from citizenship could be appealed as per
Citizenship Act 2020; however, it was not provided applying a different
law i.e. Muluki Ain. Therefore, government was issued mandamus.

Some Nepali Cases

Bisan Prasad Tharu v. Regional education directorate

Central divison and others: There should be (a) reasoning as to

removal and, (b) opportunity of hearing while removing from the
position of president of school management committee.
Surendra Kumar Mor v. Labor Court Kathmandu and
others 2056: Writ of certiorari could be issued to void a decision
made by any agency or official that is inconsistent with principles
of natural justice.
Mithu Rana v. Laxmi Narayan Maharjan 2062: If a decision
maker has not provided any grounds and reasons while giving a
different opinion in two similar issues, then such would be
inconsistent with principles of natural justice and fair hearing.
See: Mithu Rana v. LaxmiNarayan Maharjan and others NKP
2068, DN 8651, P 1177 Kartik and Piyush Bahadur Amatya v. Nepal
Rastra Bank and others NKP 2064, DN 7872, P 1034

Some Nepali Cases:

Yagya Murti Banjade v. Bagmati Special

Court and others NKP 2027, Decision

Number 547, Pg. 157: It this case, Supreme Court
held that no one can be judge in his/her own issue
and the government cannot be a judge in its own
issue.

Principles of Equality and Affirmative

Actions
Administrative agencies working under the Executive branch are

required to follow government plans and policies and are also

required to implement laws. While making decisions, their
decisions should comply with such laws, plans and policies. For
e.g. administrative agency should always maintain equality
while making a decision and it should not discriminate between
individuals or parties in a dispute
Imagine whether a legal provision on equality and affirmative
action would fulfill its purpose in absence of administrative
agencies? For e.g. Art. 13 of the Interim Constitution and its
provision on equality and affirmative action. Less likeliness of
equality if the power is exercised arbitrarily.
Article 13(1) of the Interim Constitution strikes balance between
arbitrariness of administrative action and fairness and equal
treatment.

Principles of Equality and

Affirmative Actions
The principle of equality before the law requires that before

making a decision, administrative authorities i.e. tribunals and

courts are required to guarantee that both parties in a dispute
will have adequate and equal rights and opportunities.
When the law has mentioned about affirmative actions, a
decision made or a procedure followed while hearing a dispute
on the basis of such provision may not be questionable in court.
Adv. Basundhara Thapa v. Cabinet Ministry Nepal
Government 2059: While the members of the Foundation for
Development of Indigenous Nationalities are in equal footing,
proviso of the Sec 7(3) of the Act relating to Foundation for
Development of Indigenous Nationalities 2058 providing less
tenure of women members and prohibition of re-appointment to
women is against the Art. 11 of the 1990 constitution.

Principles of Equality and Affirmative

Actions
Article 13 (3) of the Interim Constitution of Nepal:

The State shall not discriminate against citizens among citizens on

grounds of religion, race, caste, tribe, sex, origin, language or
ideological conviction or any of these.
Provided that nothing shall be deemed to prevent the making of
special provisions by law for the protection, empowerment or
advancement of women, Dalits, indigenous peoples (Adibasi,
Janajati), Madhesi or farmers, workers, economically, socially or
culturally backward classes or children, the aged and the disabled
or those who are physically or mentally incapacitated.
This provision provides administrative agencies both to ensure
equal treatment while following procedures as well as privileges
to follow some discriminatory procedures while making a
decision.

Principles of Equality and Affirmative

Actions
Devendra Mani Khanal v. Prime Minister and Cabinet

Ministry 2065: Discrimination done between security officials

of a Minister and a Judge in terms of salary and benefits goes
against the norm of equality since Judge also has a similar
power to that of a Minister.
Iman Singh Gurung v. Army Court 2049: Any act done by
legislature or executive could not acquire constitutionality if
such act directly contravened right to equality.
Radheshyam Prajuli v. Nepal Government 2056:
Affirmative action cannot be taken as discrimination. Fact:
Female could directly go to district court for divorce; whereas,
male were required to go to VDC or metropolitan office first and
only after having recommendation letter, they could go to
district court.