In this blog post, Sakshi Jain, student, Amity Law School, Lucknow Campus writes about the emerging need of audi alteram partem in the court of law.

IMG_Sakshi Jain

 

Introduction

The rule of natural justice has evolved with the growth of civilization. Natural justice is the concept of common law which implies fairness, reasonableness, equality and equity.  In India, the principles of natural justice are the grounds of Article 14 and 21 of the Constitution. Article  14 enshrines that every person should be treated equally. Article 21 in its judgment of Maneka Gandhi vs. The Union of India[1], it has been held that the law and procedure must be of a fair, just and reasonable kind. The principle of natural justice comes into force when no prejudice is caused to anyone in any administrative action. Master-Social-Justice-Advocacy-Project

There is two main principle of natural justice:

  1. Nemo in propria causa judex, esse debet
  2. Audi Alteram Partem

 

Audi Alteram Partem

The principle of Audi Alteram Partem is the basic concept of the principle of natural justice. This doctrine states the no one shall be condemned unheard. This ensures a fair hearing and fair justice to both the parties. Under this doctrine, both the parties have the right to speak. No decision can be declared without hearing both the parties. The aim of this principle is to give an opportunity to both the parties to defend themselves.

 

Stages or Steps of Audi Alteram Partem

Code of Civil Procedure governs this principle, and various steps are given before taking a proper decision:

  • Right to notice: Before taking any action, it is the right of the person to know the facts. Without knowing the facts of the case, no one can defend himself. The right to notice means the right of being known. The right to know the facts of the suit or case happens at the start of any hearing. Therefore, notice is a must to start a hearing. A notice must contain the time, place and date of hearing, jurisdiction under with the case is filed, the charges, and proposed action against the person. All these things should be included in a notice to make it proper and adequate. Whenever a statute makes it clear that a notice must be issued to the party and if no compliance or failure to give notice occurs, this makes the act void. The article should contain all the essentials to it. If it only contains the charges but not the ground or time or date, then the notice must be held invalid and vague. Non-issue of the notice or any defective service of the notice do not affect the jurisdiction of the authority but violates the principle of natural justice.images
  • Right to know the evidence against him: In Dhakeshwari Cotton Mills Ltd vs. Commissioner of Income Tax [2], it was held that every person has right to know the evidence to be used against him. In the following case, the appellate income tax tribunal did not disclose the information supplied to it by their department. Hence, the apex court held that it is against the principle of natural justice. Therefore, the evidence to be used against the party should be disclosed to him.
  • Right to present case and evidence: It is the right guaranteed to both the parties to represent their case. This can be done orally or in writing. Many courts do not accept the oral process as it does not constitute any evidence to it. Therefore, the case should be presented in written before the court for further hearing. In the case of Union of India vs. J.P.Mitter[3], it has been held that if a person is granted to present his case in writing, there is no violation of the principle of natural justice.
  • Right to rebut evidence: It is the right of the opposite party to rebut the issue raised against him. It is the duty of the court to grant permission for a rebuttal to the party so that he can express his views and defend himself. It includes cross-examination on the part of the defendant. Cross-examination is the most effective tool to cross-check the evidence. Therefore, the court must allow the party to cross-examine the evidence presented against him.
  • No evidence should be taken at the back of the other party: No evidence should take place at the back of the other party. Means no ex parte evidence should be taken by the court. The presence of both the parties is necessary while the court is examining the evidence and taking a decision over it. But under certain cases, this right is not guaranteed to the opposite party. This may be due to fear of humiliation or harassment of that person.  In the case of Hira Nath Mishra vs. Rajendra Medical College[4], 36 girls of a medical college filed a complaint against few boys for creating nuisance inside the girl’s hostel. They also provided the picture where the boys were misbehaving as the evidence. The court examined the evidence without informing the other party and held the expulsion of boys from the University. The opposite party after this challenged the expulsion before SC and one of the grounds challenged was that the evidence was taken behind their back.  Later on, the Hon’ble Supreme Court held that whatever evidence was taken behind their back should be brought to their notice, and they should be given the opportunity to rebut the evidence.scale2
  • Report of the inquiry to be shown to the other party: It is the right of the party to check the report of the inquiry. Article 311(2) of the Constitution states that failure to supply a copy of the report of the inquiry to the charged government employees before the final decision would amount to a failure to provide a reasonable opportunity. It was held by the Central Administrative Tribunal that supplying a copy of the inquiry report to the opposite party is an obligatory function before proving a judgment to it and failure to it will vitiate the inquiry.

 

Exceptions to the Principle of Natural Justice

Under these certain expectations, the principle of Audi Altreram Partem is held inapplicable to the fair play in action. The principle of natural justice can be excluded either expressly or by necessary implication, subject to the provisions of Article 14 and 21 of the Constitution.

  • Exclusion Emergency: During an emergency, the doctrine of Audi Alteram Partem is not applicable. No one can claim the right to be heard during the time of an emergency. This right will be paralyzed by the process of law. The Emergency Power Act, 1934 authorized the Government to make a regulation under the Act through which a person can be detained without any reason for the safety and security of the country. In Mohinder Singh Gill vs. CEC[5], the Hon’ble Supreme Court held that in the case of emergency, Audi Alteram Partem could be excluded.
  • Statutory Exclusion: When a statute itself makes it clear that the doctrine of Audi Alteram Partem is not in the purview of the Act, then there will be no hard and fast rule.
  • Public interest: Any act or thing done against the interest of the general public will be held void ab initio. As being a democratic country, the laws are made for the benefit of the public. Hence, if there is a hidden interest of the public in any issue, then the principle of Audi Alterma Partem will be excluded.cropped-cropped-unique_prsn1
  • Legislative actions: When the law making body itself propounds that this principle will not be applicable in the said statute, then this principle is not applicable in the cases which will come under the particular statute. In Charan Lal Sahu vs. UOI [6], the constitutional validity of the Bhopal Gas Disaster (Processing of Claims) Act, 1985 was involved. This legislation provides for details of how to determine claims and pay them. The affected parties approached the SC and contended that no hearing was provided to them, and it was violative of Audi Alteram Partem. The SC held, “For legislation by Parliament no principle of natural justice is attracted, provided such legislation is within the competence of the Legislature.” [7]
  • Academic Evaluation: Where the nature of authority is purely academic, then no right of hearing can be claimed.[8] The academic administration can take any action towards the students or the staff members if they feel that the things are not working properly inside the institution. And it cannot be challenged until and unless the contrary is proved. In Jawaharlal Nehru University vs. B.S.Narwal  [9], B.S. Narwal, a student of JNU was suspended from the College for unsatisfactory performance in the academic year without giving prior notice to him. The Supreme Court held the suspension valid.

 

 

Conclusion

The principle of natural justice has evolved through civilization. It has not evolved from the constitution but from mankind itself. Every person has the right to speak and be heard when allegations are being put towards him or her. The Latin maxim, ‘Audi Alteram Partem’ is the principle of natural justice where every person gets a chance of being heard. The meaning of the maxim itself says no person shall be condemned unheard. Hence, no case or judgment can be decided without listening to the point of another party. There are many cases where this principle of natural justice is excluded, and no option is given to the party to speak. Natural justice means that justice should be given to both the parties in a just, fair and reasonable manner. Before the court, both the parties are equal and have an equal opportunity to represent them.

 

 

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Footnotes:

[1] 1978 AIR 597, 1978 SCR (2) 621

[2] 1955 AIR 65, 1955 SCR (1) 941

[3] 1971 AIR 1093, 1971 SCR (3) 483

[4] AIR 1973 SC 1260, (1973) IILLJ 111 SC, (1973) 1 SCC 805

[5] 1978 AIR 851, 1978 SCR (3) 272

[6] [1990] 1 SCC 613 1480 (SC)

[7] I.P MASSEY, ADMINISTRATIVE LAW 251 (Eastern Book Company, 8th ed. 2012)

[8] http://journal.lawmantra.co.in/wp-content/uploads/2015/05/22-new.pdf

[9] [1980] 4 SCC 480 1666 (SC)

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