Principle of Natural Justice Audi Alteram Partem

Written by The Peoples Chronicle By Sarungbam Lucy Principle of natural justice is based on the two legal maxims "Nemo debet essa judex in propria cause" which means no one can be judge of his own cause. Audi Alteram Partem" which means opportunity of fair hearing to the other side must be afforded. This is a rule which generally applies in disciplinary proceedings against an employee charge of misconduct or any guilt. As per the rule of principle of natural justice, an enquiry into the allegation labelled against the employee must be initiated and a fair opportunity of bearing heard must be afforded to such employee. Thus this rule requires that: (1) charged employee should be given notice of the charges he is called upon to explain and the allegations on which those are based; (2) evidence should be taken in the presence of the charged employee; (3) he should be given opportunity to cross-examine the prosecution witnesses; (4) he should have the opportunity of adducing all relevant evidence on which he relies; (5) no material should be relied on against him without giving him an opportunity of explaining such material. The first principle is that 'No man shall be a judge in his own cause' i.e. to say, the deciding authority must be impartial and without bias. It implies that no man can act as a judge for a cause in which he himself has some interest, may be pecuniary or otherwise. Pecuniary interest affords the strongest proof against impartiality. The emphasis is on the objectivity in dealing with and deciding a matter. Justice Gajendragadkar, as then he was, observed in a case reported in AIR 1965 SC 1061, M/s Builders Supply Corporation v. The Union of India and others, it is obvious that pecuniary interest, however small it may be, in a subject matter of the proceedings, would wholly disqualify a member from acting as a judge". Lord Hardwick observed in one of the cases, In a matter of so tender a nature, even the appearance of evil is to be avoided." Yet it has been laid down as principle of law that pecuniary interest would disqualify a Judge to decide the matter even though it is not proved that the decision was in any way affected. This is thus a matter of faith, which a common man must have, in the deciding authority. Status in India

As per the Constitution of India under Article 14, 19, 21 lay down the cornerstone of natural justice in India. In the case of E P Royappa v. State of Tamilnadu, the apex court held that a properly expressed and authenticated order can be challenged on the ground that condition precedent to the making of order has not been fulfilled or the principles of natural justice have not been observed. In another landmark case of Maneka Gandhi v. Union of India , the apex court held that law which allows any administrative authority to take a decision affecting the rights of the people, without assigning the reason for such action, cannot be accepted as a procedure, which is just, fair and reasonable, hence violative of Articles 14 and 21. The Rules of Priciple of Natural Justice/ Audi Alteram Partem are as follows : 1.The Hearing Rule This rule requires that a person must be allowed an adequate opportunity to present their case where certain interests and rights may be adversely affected by a decision-maker. To ensure that these rights are respected, the deciding authority must give both the opportunity to prepare and present evidence and to respond to arguments presenting by the opposite side. When conducting an investigation in relation to a complaint it is important that the person being complained against is advised of the allegations in as much detail as possible and given the opportunity to reply to the allegations. 2. The Bias Rule This second rule states that no one ought to be judge in his or her case. This is the requirement that the deciding authority must be unbiased when according chk this spelling the hearing or making the decision. Additionally, investigators and decision-makers must act without bias in all procedures connected with the making of a decision. A decision-maker must be impartial and must make a decision based on a balanced and considered assessment of the information and evidence before him or her without favouring one party over another.

Even where no actual bias exists, investigators and decision-makers should be careful to avoid the appearance of bias. Investigators should ensure that there is no conflict of interest which would make it inappropriate for them to conduct the investigation. 3. The Evidence Rule The third rule is that an administrative decision must be based upon logical proof or evidence material.

Investigators and decision makers should not base their decisions on mere speculation or suspicion. Rather, an investigator or decision maker should be able to clearly point to the evidence on which the inference or determination is based. Evidence (arguments, allegations, documents, photos, etc...) presented by one party must be disclosed to the other party, who may then subject it to scrunity. 4. Audi Alteram Partem or Rule of Fair Hearing The principle of audi alteram partem is the basic concept of principle of natural justice. The expression audi alteram partem implies that a person must be given opportunity to defend himself. This principle is sine qua non of every civilized society. This rule covers various stages through which administrative adjudication passes starting from notice to final determination. Right to fair hearing thus includes:1. Right to notice 2. Right to present case and evidence 3. Right to rebut adverse evidence (i) Right to cross examination (ii) Right to legal representation 4. Disclosure of evidence to party 5. Report of enquiry to be shown to the other party 6. Reasoned decisions or speaking orders 5.Post Decisional Hearing Post decisional hearing means hearing after the decision is reached. The idea of post decisional hearing has been developed by the SC in Maneka Gandhi Vs. UOI to maintain the balance between administrative efficiency and fairness to the individual. Maneka Gandhi Vs. Union of India Facts : In this case the passport dated 01.06.1976 of the petitioner, a journalist, was impounded Rsin the public interest' by an order dated 02.07.1977. The Govt. declined to furnish her the reasons for its decision. She filed a petition before the SC under article 32 challenging the validity of the impoundment order. She was also not given any pre-decisional notice and hearing.

Argument by the Govt. The Govt. argued that the rule of audi alteram partem must be held to be excluded because otherwise it would have frustrated the very purpose of impounding the passport. However the Supreme Court held that though the impoundment of the passport was an administrative action yet the rule of fair hearing is attracted by the necessary implication and it would not be fair to exclude the application of this cardinal rule on the ground of administrative convenience. The court did not outright quash the order and allowed the return of the passport because of the special socio-political factors attending the case. The technique of post decisional hearing was developed in order to balance these factors against the requirements of law, justice and fairness. The court stressed that a fair opportunity of being heard following immediately the order impounding the passport would satisfy the mandate of natural justice. The court validated the order of the govt. which had been passed in violation of the rule of audi alteram partem because the govt. had agreed to give post-decisional hearing. The ratio of the majority decision was as follows: 1. Pre-decisional hearing may be dispensed with in an emergent situation where immediate action is required to prevent some imminent danger or injury or hazard to paramount public interest. 2. Mere urgency is, however, no reason for exclusion of audi alteram partem rule. The decision to exclude pre-decisional hearing would be justiciable. 3. Where pre-decisional hearing is dispensed with, there must be a provision for post-decisional remedial hearing. . In H.L.Trehan Vs. UOI, a circular was issued by the Govt. on taking over the company prejudicially altering the terms and conditions of its employees w/o affording an opportunity of hearing to them. The SC observed that "In our opinion, the post decisional opportunity of hearing does not subserve the rules of natural justice. The authority who embarks upon a post-decisional hearing will normally proceed with a closed mind and there is hardly any chance of getting proper consideration of the representation at such a post decisional hearing." Thus in every case where pre-decisional hearing is warranted, post-decisional hearing will not validate the action except in very exceptional circumstances. Pre-decisional hearing is the standard norm of rule of audi alteram partem. But post-decisional hearing atleast affords an opportunity to the aggrieved person and is better than no hearing at all. However, post-decisional hearing should be an exception rather than rule. It is acceptable in the following situations:_ 1. where the original decision does not cause any prejudice or detriment to the person affected; 2. where there is urgent need for prompt action;

3. where it is impracticable to afford pre-decisional hearing. The decision of excluding pre-decisional hearing is justiciable.

6. Requirement of Cross Examination Cross-examination is used to rebut evidence or elicit and establish truth. In administrative adjudication, as a general rule, the courts do not insist on cross-examination unless the circumstances are such that in the absence of it, an effective defence cannot be put up. The SC disallowed cross-examination in State of J&K vs. Bakshi Gulam Mohammedon the ground that the evidence of witness was in the form of affidavits and the copies had been made available to the party. Where, however, witnesses depose orally before the authority, the refusal to allow cross examination would certainly amount to violation of principles of natural justice. It can thus be concluded that right to cross-examine is an important part of the principle of fair hearing but whether the same should be allowed in administrative matters mainly depends on the facts and circumstances of the case. The author is BSc, LLM with Specialisation in Environmental Law and Legal Order