This article is written by Raunak Sood, pursuing Diploma in Advanced Contract Drafting, Negotiation, and Dispute Resolution from LawSikho. The article has been edited by Prashant Baviskar (Associate, LawSikho) and Smriti Katiyar (Associate, LawSikho).
Background and purpose
There are mainly two roles of natural justice namely, the right to be heard, and the rule against bias, even though there are some other principles. For example, an executive authority adjudicating upon a matter shall give a well-reasoned decision, especially in those matters wherein the said decision has an impact on the accrued rights and liabilities of the citizens. This chapter attempts to discuss the effect of fairness and the interaction of this concept with natural justice principles whenever proceedings are taking place before an administrative authority. In this chapter, the focus shall be upon the irregularity, deviation and departure from natural justice rules.
Concept of fairness and illustrative cases in which rules of natural justice have to be applied
If an order is enforceable under the law having an administrative nature that has a civil effect, such an order should be made consistent with the principles of natural justice. The Principles of Natural Justice (“Natural Justice”) act as an addition to the enacted law wherein the administrative body whose actions are having civil consequences have to follow a “fair procedure” in which a fair opportunity to be heard has to be granted (procedural fairness) and there is a need to meet the ends of justice. The following cases are those in which principles of natural justice have to be strictly applied.
Illustrative Case 1 – If an administrative order affects the rights and liabilities of a person, and the provision of the statute under which the said order is passed does not expressly bar the opportunity to be heard, in that case, Natural Justice has to be applied to act as a check on the arbitrary administrative power. It is pertinent to note that a show-cause notice from the side of an adjudicating administrative authority is sufficient to cover the ambit of Natural Justice provided that the order is passed on the reply given to the show-cause notice without even giving a personal hearing.
Illustrative Case 2 – “No man should be a judge in his own cause” is a part of the Natural Justice Principle which has to be followed almost throughout all administrative proceedings but in such cases, the burden of proof (“onus”) regarding the proving of bias is very heavy, hence it is pertinent to note that onus and delivery of Natural Justice are connected.
Pursuant to hereinabove discussed Illustrative Case 1 and Illustrative Case 2 it is important to note that there are matters of policy, law and order in which, if the Natural Justice principles are not followed, then such adjudication shall not be justiciable by any court of the Republic of India.
Elements include but are not limited to the following principles whenever administrative proceedings take place
Application of the rule of audi alteram partem (opportunity of fair hearing) – This rule is applicable to the cases pending adjudication before a court of law, tribunal and any other authority having a legal discretionary power to handle cases subject to the limitations given in the parent statute.
Issuing a notice
A notice is a document that notifies the opposite party about some facts, information or circumstances. It is to be noted that in order for a notice to be effective it should contain the timing of the hearing, place of hearing, grounds on which the hearing is taking place and name of the adjudicating authority and if the statute does not contain a specific provision of issuance of notice then an order to the prejudice of such person cannot be without issuing such notice wherein an equitable chance to be heard has to be given. A notice should explicitly lay down the grounds on which a person is being called by the said adjudicating authority.
Adducing evidence followed by laying down of facts, issues and legal grounds and divulgence of all material evidence
For the hearing to be impartial an equitable opportunity should be given after the notice has been served for the adduction of evidence and demonstration of the case by the person who received the notice. In the case of Ambala Central Cooperative Bank v. State of Haryana & Ors it was held by the Supreme Court that when the notice is received, it is the responsibility of the body that sent the notice to give feasible time and a chance to produce evidence for the purpose of adjudication whereas if the said chance or hearing is not given the court shall deem such a notice to be illegitimate, arbitrary, unauthorized and prohibited in the eyes of the law.
Freedom to produce witnesses and cross-examine them
An opportunity should be given to the person who is before an adjudicating court, tribunal or legal authority to ask pointed questions to those witnesses who are giving testimony against any party present before an administrative authority. In the case of Hira Nath Mishra and Ors. v. The Principal, Rajendra Medical College, Ranchi and Anr, the court laid down that a trial will get frustrated if the opportunity to cross-examine is not given but if the subject of such examination is a sensitive subject then this right may be denied. However, it was iterated in a recent case of Central Bureau of Investigation & Ors v. Mohd. Parveez Abdul Kayuum, wherein it was laid down if the right to cross-examination of a critical witness is not given it violates the principles of natural justice and thereby frustrates the trial and the proceedings which took place before the trial court. Hence to wind up the legal position on this issue it is important for the purpose of a fair hearing to give a chance of cross-examination.
Right to get represented by an attorney
The proceedings which are taking place before the adjudicating body should give the opportunity to a person to get adequate representation for the proceedings, but not every person can afford a lawyer. Hence it is the duty of the State that they should arrange for legal help for such a person who cannot afford the services of a lawyer. That is why in India, we have the Legal Services Authority in charge of providing lawyers for people who are not able to afford an attorney. In the case of M.H. Hoskot v. State of Maharashtra, it was decided that for a fair and equitable hearing the concept of free legal aid is extremely important as implied under Article 21 of the Constitution of India.
Obtaining a decision with reasons recorded – Article 14 of the Constitution of India is against getting decisions that are arbitrary, irrational and capricious in nature, therefore a decision tendered should be a decision in which the reasons for passing the said decisions are well-stated in the record because justice must appear to be done. A recording of reasons shows that there has been the application of judicial principles by the adjudicating authority.
Post decision hearing
In its landmark case of Navratnna Rao v. Municipal Corporation, Bombay, in the year 2021 SC has clarified that the post-decision hearing has an extra onus that a sufficient amount of written reasoning should be present in the written order hence passed.
Suggestions for people who are adjudicating on being biased in a particular matter
In certain situations, a person who is adjudicating can be biased, and he or she may not realise it themselves. Hence enumerated below is a checklist of suggestions which an adjudicating person should peruse before delving into the case at hand.
Firstly, ensure that the person making the decision does not have a political rivalry with any person before him Secondly, that the judge should not have any financial interest in any of the parties present before him Thirdly, the presiding officer should not be a person of interest as per the subject matter of the case. Fourthly, that the decision making person should be of the same working department whose matter has been prostrated before him. Lastly, there should not be any kind of preconceived notion of bias.
Administrative law is a developing branch of law, so it brings a number of grey areas with it. One of such grey areas is regarding the application of the principles of natural justice in matters of administrative proceedings. Whether the principles of natural justice will be applicable or not depends on what type of function is being performed by the administrative body. So, the first step is to identify the nature of that particular administrative function, which also does not have any definitive parameters. The extent of the applicability of the three major principles of natural justice, as elaborated upon at the beginning of this article, depends on the classification of the administrative function. In this paper, the author has attempted to classify the various types of administrative functions and identify a set of parameters that can be used to differentiate between them. After this classification, the paper goes on to discuss the pros and cons of applying the principles of natural justice to administrative actions.
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