The Doctrine of Audi Alterem Partem

INTRODUCTION

One of the most prominent principles of Common Law is Natural Justice.  It has evolved alongside of civilization.  The words 'Natural Justice' were derived from the Roman words 'JUS NATURALE'. The principle is the outcome of the years of work of judicial mind in order to evolve the concept of fair play. The principles of natural justice are flexible and not rigid. They depend on the facts of the case, nature of the right infringed and other circumstances, like, principles of Natural Justice cannot be applied during emergency or where the procedural defect would have made no difference in the outcome.

With the evolution of the legal system, two rules have been a part of this principle, first being 'nemo debet esse judex in propriacausa', which means that no man can be a Judge in his cause for e.g. a Judge is precluded from presiding over a case in which he/she is a partyand the second being "audi alterem partem" which means that No Man Should Be Condemned Unheard, or that the other side should be heard. Both the parties have a right to speak and keep their side of the case forward and without giving the opportunity to both of them, no decision can be made.

This principle of audi alterem partem promotes fairness in the procedure, prevents biasness, as a hearing should be an unbiased hearing. It is considered as the rudimentary and fundamental concept for establishing the Rule of Law which should be implemented by Courts at international as well as national level, and it marks the civilization of the system of jurisprudence.

It is not just a maxim anymore, it is slowly turning into a powerful methodology.

THE ANCIENT CONNECTION

In the case of R. v. University of Cambridge where a scholar was deprived of his degrees on the ground of insulting the Vice-Chancellor's court but he was reinstated as this step was considered very harsh and it was realized that the scholar had the right to get a noticebefore hand as it is the appropriate step as per the laws of both God and Man. Justice Fortesque mentioned that before passing any sentence against Adam even he was called to make his defense.

Decisions earlier were mainly concerned with restoring positions at offices. However later in the 19th Century it became clear that Courts would apply this principle in cases of administrative nature.

Gradually this Doctrine started to be applied in cases involving protecting members and officers of Trade Unions.

FEATURES OF AUDI ALTEREM PARTEM

Notice:

Before any proceeding is commenced a Notice is sent to the concerned party to show the cause of action and give that party a fair chance to prepare and present an explanation. An order passed without furnishing any Notice is considered void ab initio and against the rules of natural justice.

In the Bagg case the Chief Burgess who was disfranchised was reinstated as no notice was given.

Certain features of a Notice are:

1. Should mention the time, place and nature of hearing
2. Should mention the authority under which the hearing is to be held.
3. Statements of specific charges which the person has to meet.
4. The Notice must give a reasonable chance to fulfill the requirements specified in it.

In the case of Ravi S. Naik v. Union of India there was provision to provide notice for seven days but the notice was provided for just 3 days. It was stated by Justice S.C. Agrawal that if there has been a breach of natural justice, the then relief may be denied, but where the individual has been deprived of the right of a fair hearing by the breach, it was held as valid because the principles of natural justice are flexible.

In the case of Olga Tellis v Bombay Municipal Corporation the provision for removal of unauthorized construction, without giving any notice was not considered a final command.   

Hearing: 

Before any action is taken against the person he should be given a fair chance of being heard.

In the case of Cooper v Wandsworth Board of Works, the Corporation had the power to demolish any building without giving the opportunity of any hearing to the other party. It was held by the Court that the actions of the Corporation were subject to the rule that the property of a person cannot be taken away from him without giving him a fair chance of hearing.

In the case of Maneka Gandhi v. Union of India the Petitioner was not given any opportunity to be heard and her passport was taken from her. This was considered against the principles of natural justice.

However in the case of Maharashtra State Board of Secondary and Higher Secondary Education v. Paritosh Bhupeshkumar Sheth, the Supreme Court defined the boundaries for the application of the principle of natural justice, like evaluating students behind their backs without giving them any chance of hearing was not considered against the principles.

In the case of A.K. Kraipak v. Union of India, the Supreme Court stated that no distinction should be made between the quasi-judicial and administrative functions in giving a fair chance of hearing to the other person. Before this case, the principle was applied only to quasi-judicial decisions but after this case it was extended to administrative decisions as well. Justice Hegde had observed that- “if the purpose of the rules of natural justice is to prevent miscarriage of justice one fails to see why those rules should be made inapplicable to administrative inquiries.”

In England and US in the absence of any statutory requirement, an oral hearing is not considered necessary. The opportunity of fair hearing should be provided which can be written as well but not necessarily oral. The same principle is followed in India as well. Whether a person is entitled to oral hearing or not depends upon the provisions of the statute and the facts and circumstances of the case as held in the case of M.P. Industries Ltd. v Union of India.

Disclosure of Evidence:

Every person before the adjudicating authority has the right to know about all the evidence and material submitted against him/her. This is to give the person an opportunity to prepare for his defense.

In the case of Dhakeshwari Cotton Mills Ltd. v. CIT the tribunal did not disclose the information supplied to it and hence it was held that a fair chance was not given.

Cross-examination:

Cross-examination is considered as very important for bringing out the truth but it is not an obligatory part of natural justice. Whether this opportunity should be given or not depends upon the facts and circumstances of each case. Like in the case of Khem Chand v. Union of India the Supreme Court held that cross-examination isan important right whereas in the case of Gurbachan Singh v State of Bombay, which dealt with the issue of externment under the Bombay Police Act the Supreme Court held that cross-examination was not a part of natural justice.

He who hears must decide:

As per this rule the deciding authority must hear the party as only then this rule of fair hearing will be utilized in the right sense.

Like in the case of Gullapalli Nageswara Rao v. State of A.P. the order was held valid as the Minister who had heard the parties decided the case.

However, when in the case of Ossein and Gelatine Manufacturers' Assn. v. Modi Alkalies and Chemicals Ltd. the order was passed by the Officer, other than the one who heard the matter, the order was upheld as he had taken into consideration all the objections put forward by the Petitioner and the positives and negatives of the case.

Right to Counsel:

There were views that counsels should be kept away from the administrative decisions for the sake of brevity, but with time it has been realized that this right should be given to parties as everyone is not skilled enough to present their case.

CONCLUSION

The importance of natural justice is being realized with time. It marks the civilization of the adjudication system. It is not codified but still it establishes certain basic standards of procedure that should be followed by an Administrative Authority while adjudicating. It is important to mention here the fact that even God could not deny this right of audi alterem partem to Humans then how can Humans deny this right to each other.

Miscarriage of Justice, biased decisions, partiality can be avoided by the rule of audi alterem partem. Not only this, it would also result in a better and more balanced decision making process.

Every Judge, Lawyer or any other Adjudicating Authority should imbibe this principle within themselves so as to give out better and more just decisions.