This article is written by Madan, a law student from ILS, Pune and an IDIA scholar.

“Natural justice is a great humanizing principle intended to invest law with fairness and to secure justice” – Justice Bhagwati in Maneka Gandhi v. UOI

Introduction

Natural Justice can be described as ‘commonsense justice’ or ‘universal justice’. It is the sense or an implied obligation on the part of a person who is placed in a position of a judge and can pass binding decision to the prejudice of any person to act in a fair, just and reasonable manner.

It is a matter of common sense that if a person is a Judge, then there is an implied duty on him to do justice in a fair and just manner. The law may not expressly tell him that he has to act judicially but the position he is placed comes with a tag that he must act reasonably and fairly in the discharge of his duties.

This is known as natural justice and some call it as ‘fair play in action’.

Origin

The concept that a judge has to act fairly has its origin in Common Law i.e. developed by the courts in England and would be binding on lowers courts in similar cases.

Indian Constitution expressly does not recognize these principles. The positivist judges of the Supreme Court in the early years of 1950’s adopted a narrow approach and interpreted the Constitutional provisions not to include these principles.

However, the liberalist judges of the Supreme Court in the late 1970’s breathed these principles into all such judicial, quasi-judicial and administrative actions by holding that these principles are ancient and for public good and that it is ingrained in the Indian Constitution.

Since, then every person who acts in the capacity of the judge has to observe these principles, else his decision would be bad in law and would not have any effect.

What are these principles? What are the rights available under natural justice?

These principles are easy to recognize but are difficult to define with precision. The purpose we have such a law is that Justice must be rooted in confidence, and confidence is destroyed when right-minded people go away thinking, the Judge was biased.

All such things that needs to be done by a person who is acting in the place of a Judge so as to inspire public faith in the process adopted by him to judge are known as principles of Natural Justice.

These rights differ from case to case depending upon the nature of the dispute, facts and circumstances of the case and other factors. It is not possible to give an all- comprising list of these rights and tell if one of them is not observed then the decision is void. The essential element must be that at the end of the decision, any reasonable person must agree that the procedure adopted under such circumstance were fair and just to for a person to do.

However, there are two well-recognized principles of natural justice-

1. No one can be a judge in his own cause.

The rule is clear that a person having an interest in the subject matter of the proceeding shall not act in the capacity of a judge. Such an interest must be direct and not something which is remotely connected.

If a person acts a judge in a case of accident involving his son, even though the judge may render justice impartially, there would always be a presumption of bias in the eyes of the public. Hence, to be fair and inspire public confidence this rule exists.

2. Hear both the parties before arriving at a decision.

It means that before condemning a person as wrong, it would be duty of the judge to give an opportunity to that person to explain as to why he should not be punished. The accused or respondent must be given a reasonable opportunity to make his defence.

This rule has evolved over time giving rise to other principles such as-

1. A 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 opponent’s witnesses and entitled to call his own witnesses and give his own evidence before the person acting as a Judge
3. He is entitled to know the reasons for the decision rendered by the person acting as a Judge.

The other settled principles are:

1. The parties to a proceedings must have due notice of when the Judge or person in his capacity is going to decide his matter
2. The person who is making the decision must act honestly and impartially and not under the dictation of other persons to whom authority is not given by Law.

It is to be noted that these principles are not hard and fast and need to be present in all proceedings. These can be altered according to the facts and circumstances of each case. The total sum must be that the public faith in the process is not shaken.

For, example is it a part of natural justice that an accused be always present in his criminal trial. But, in a trial under Goonda Act, the accused will not be present during the deposition by the witness. This is because no witness will dare come out to speak the truth if he is made to stand in front of a Goonda. In such circumstance, there would not be any violation of natural justice.

The Sexual Harassment of Women at Workplace (Prevention, Prohibitory and Redressal) Act, 2013 and application of principles of natural justice

Sexual Harassment at workplace is a serious infringement of rights of a woman. Hence, the legislature has enacted the above legislation providing for ICC- Internal Complaints Committee and the LCC- Local Complaints Committee for redressing the loss caused to the victim.

This committee which is to be constituted from among the staff of the employer in accordance to the provisions of the act. It is vested with such powers that it can reprimand, transfer, deduct salary or increment and even terminate the services of the respondent. It also has the powers to award damages to the victims.

Hence, it becomes inevitable that such a committee observe the principles of natural justice when disposing of the matters before it. Rule7 (4) of the Sexual Harassment of Women at Workplace Rules, 2013 makes it expressly clear that the committee shall observe the principles of natural justice when inquiring into complaints of sexual harassment. The rules provides for some basic procedure to be followed and leaves out the other parts to the common sense of the committee to act fairly and do justice.

Hence, the procedure needs to be one which is specific from case to case and should be such that it should appear to have rendered justice.

Recommended procedure to be adopted by the Internal Complaint’s Committee

1. Composition: The committee must be composed of persons who are not interested in the outcome of the committee. The act clearly provides for the appointment of persons with certain qualifications as the members of the committee. However, the composition must be such that the members are not related directly or indirectly with any of the parties- both the victim as well the respondent.

2. The victim and the defendant or their witnesses should be called separately so as to ensure freedom of expression and an atmosphere free of intimidation.

3. If the victim requests then, she can be allowed to be accompanied by a representative.

4. The Committee must endeavor to arrive at decision as early as possible.

5. The Committee must on the receipt of a complaint must fix a date of hearing and give notice of that date to both the parties before such time that would enable them to make their case before the committee.

6. The defendant must be served with the true copy of the complaint along with the list of the witnesses and also a copy of the policy on Sexual Harassment of the workplace if any.

7. The defendant must be given a reasonable time to respond to the allegations against him and a reasonable opportunity to make his defense.

8. The committee may call a person as a witness or require the discovery and production of things or documents if it is of the opinion that it is necessary in the interest of justice.

9. The character of the victim in as much as it indicates is of easy virtue of otherwise is not relevant to the proceedings before the ICC.

10. If the respondent fails to appear before the committee, then the committee can proceed against him ex- However, such a decision must be made only after giving notice to the respondent.

11. The identities of the victim and all witnesses should be kept confidential by the committee.

12. The victim and the respondent shall have the right to cross-examine the witnesses. It is expedient to conduct such cross-examination in a written format and responses via committee.

13. The proceedings before the committee should be in writing.

14. A copy of any evidence taken by the committee must be given to the other party and the person must be given an opportunity to rebut it.

15. The committee must record the reasons for its findings along with the action to be taken and penalties to be imposed and submit it to the employer.

16. A copy of such a finding must be given to both victim and the defendant.

17. It would be desirable to have a higher committee whereby any aggrieved party can appeal against the findings of the lower committee. Such a higher committee must be constituted on the lines of provisions of the act and must observe the principles of natural justice.

However such principles and procedures are more complex than they seem and while many might understand the need for such policies in place they might not understand the nitty-gritty involved. For this purpose, National University of Juridical Sciences has come up with this course. One can also refer to this course which talks about how to implement sexual harassment laws in your organization.