Refinement of Doctrine of Natural Justice

Natural justice is a legal philosophy used in some jurisdictions in the determination of just, or fair, processes in legal proceedings. The concept is very closely related to the principle of natural law which has been applied as a philosophical and practical principle in the law in several common law jurisdictions. Natural justice in essence could just be referred to as ‘Procedural Fairness’, with a purpose of ensuring that decision-making is fair and reasonable. Natural justice must underpin departmental decision-making as those decisions affect the interests of persons or corporations.

According to Roman law certain basic legal principles are required by nature, or are so obvious that they should be applied universally without needing to be enacted into law by a legislator. The rules or principles of natural justice are now regularly applied by the courts in both common law and Roman law jurisdictions. Natural justice operates on the principles that man is basically good, that a person of good intent should not be harmed, and one should treat others as one would like to be treated.

Natural justice includes the notion of procedural fairness and may incorporate the following guidelines:

A person accused of a crime, or at risk of some form of loss, should be given adequate notice about the proceedings (including any charges).

A person making a decision should declare any personal interest they may have in the proceedings.

A person who makes a decision should be unbiased and act in good faith. He therefore can not be one of the parties in the case, or have an interest in the outcome. This is expressed in the latin maxim, nemo judex in sua causa: “no man is permitted to be judge in his own cause”.

Proceedings should be conducted so they are fair to all the parties – expressed in the latin maxim audi alteram partem: “let the other side be heard”.

Each party to a proceeding is entitled to ask questions and contradict the evidence of the opposing party.

A decision-maker should take into account relevant considerations and extenuating circumstances, and ignore irrelevant considerations.

Justice should be seen to be done. If the community is satisfied that justice has been done, they will continue to place their faith in the courts.

Chapter II: Nemo Judex in Causa Sua

Bias means an operative prejudice, whether conscious or unconscious in relation to a party or issue. Such operative prejudice may be the result of a preconceived opinion or a predisposition. Therefore, the rule against bias strikes against those factors which may improperly influence a judge in arriving at a decision in a particular case. The requirement of this principle is that the judge must be impartial and must decide the case objectively on the basis of the evidence on record. A person cannot take an objective decision in a case in which he has an interest, for, as human psychology tells us very rarely can people take decisions against their own interests. Therefore, the maxim that a person cannot be a judge in his own cause. Moreover, “Justice should not only be done but should manifestly and undoubtedly be seen to be done”. The minimal requirement of natural justice is that the authority must not be biased.

Bias manifests itself variously and may affect decisions in a variety of ways:

(1) Personal Bias- Personal bias arises from a certain relationship equation between the deciding authorities and the parties which incline him unfavourably or otherwise on the side of one of the parties before him.

Mineral Development Corporation Ltd. v State of Bihar [1] is a typical case of personal bias. In this case the petitioners were granted mining license for 99 years in 1947. But in 1953, the secretary of the revenue board sent a notice to petitioners to show cause within 15 days why the licence should not be cancelled for violation of various sections pf mining act. The petitioners submitted a written reply denying the allegations. 2 years later, the government issued notification canceling the licence. The action of the government was challenged on the basis of personal bias. The facts highlighted by the petitioner were as follows.

(i) That Raja Kamakshya Anrain Singh, the owner of the mineral development corporation Ltd had opposed the minister in the general elections.

(ii) That the minister had filed a criminal case under section 500 IPC against the petitioner which was transferred by the High Court of the state of Bihar to Delhi on the ground of political rivalry between the parties.

The court subsequently quashed the order of the government on the basis of personal bias.

In order to challenge administrative action successfully on the ground of personal bias, it is essential to prove that there is a reasonable suspicion of bias or a real likelihood of bias. In this area of bias the real question is not whether a person was biased. It is difficult to prove the state of mind of a person. Therefore, what the courts see is whether there is reasonable ground for believing the question of bias judges have to take into consideration the human possibilities and the ordinary course of human conduct. But there must be a real likelihood of bias rather than just a probability of bias. The apprehension must be judges from a reasonable, healthy and competent point of view.

(2) Pecuniary Bias- Judicial approach is unanimous and decisive on the point that any financial interest, howsoever small it may be, would vitiate administrative action. The disqualification will not be avoided by non-participation of the biased member in the proceedings if he was present when the decision was reached. In Jeejeebhoy v Asstt Collector, Thana [2] the Chief Justice reconstituted the bench when it was found that one of the members of the bench was a member of the co-operative society for which the land had been acquired. The madras high court also quashed the decision of the collector who in his capacity as the chairman of the regional transport authority had granted a permit in favour of a co-operative society of which he was also the chairman.

(3) Subject matter Bias- Those cases fall within this category where the deciding officer is directly, or otherwise, involved in the subject matter of the case. Here again mere involvement would not vitiate the administrative action unless there is a real likelihood of bias.

(4) Departmental Bias- The problem of departmental bias is something which is inherent in the administrative process and if it is not effectively checked, it may negate the very concept of fairness in the administrative proceeding. In Gullapalli Nageswar Rao v APSRTC [3] the petitioners challenged the order of the government nationalizing road transport. One of the grounds for challenge was that the secretary of transport department who gave hearing was biased being the person who initiated the scheme and also being the head of the department whose responsibility it was to execute it. The court quashed the order on the ground that, under the circumstances, the secretary was biased, and hence no fair hearing could be expected. Thereafter, the Act was amended and the function of hearing the objection was given over to the minister concerned.

(5) Preconceived notion Bias- Bias arising out of perceived notions is a very delicate problem of administrative law. On the one hand, no judge as a human being is expected to sit as a blank sheet of paper, on the other, preconceived notions would vitiate a fair trial. In Stevenage [4] case the appellant challenged the stevenage new town designation order, 1946 on the ground that no fair hearing was given because the minister had entertained bias in his determination. Though the court did not accept the challenge on the technical grounds that the minister confirming the report was not any quasi-judicial function, but the problem still remains that the bias arising from strong convictions as to policy may operate as a more serious threat to fair action than any other single factor.

Chapter III: Audi Alteram Partem

One of the objectives of giving a hearing in application of the principles of natural justice is to see that an illegal action or decision does not take place. The principle of audi altarem partem is the basic principle of natural justice. The omni potency inherent in the doctrine is that no one should be condemned unheard. In the field of administrative action, this principle has been applied to ensure fair play and justice to affected persons. The expression audi altarem partem simply implies that a person must be given an opportunity to defend himself. This principle is sine qua non of civilized society. Administrative difficulty in giving notice and hearing to a person cannot provide any justification for depriving the person of an opportunity of being heard. The whole course of decisions beginning with Dr Bentley’s Case [5] in which the Court of King’s Bench held that the university of Cambridge could not cancel the degree of a great but rebellious scholar without giving him an opportunity to defend himself, firmly establishes that although there may not be a statutory requirement that both parties shall be heard, yet the justice of common law will supplant the omission of the legislature.

Administrative agencies in India are not bound by the technical rules procedure of law courts; this accentuates the need to follow the minimum procedure of fair hearing.

Law is clear on the point that in cases classified as “quasi-judicial” there is a “duty to act judicially” i.e. to follow the principles of natural justice in, nut in cases which are classified as “administrative” there is only a “duty to act fairly” which simply means that the administrative authority must act justly and fairly and not arbitrarily or capriciously.

In the case of Keshav Mills Co. Ltd v Union of India the government, on the basis of a report of the enquiry committee had taken over the management of the mill-company, which had been closed down without supplying the copy of the report to the management and without affording an opportunity of hearing. The takeover was challenged on the ground of violation of the principles of natural justice. The Honorable Supreme Court though did not interfere with the order on the ground that no prejudice was caused to the mill-company, yet observed:

“The only essential point that has to be kept in mind in all cases…that the administrative authority concerned should act fairly, impartially and reasonably.”

The basic purpose behind developing the fairness doctrine within the area of ‘administrative or executive’ functions of the administration where principles of natural justice are not attracted is to reconcile “fairness to the individual” with the “flexibility of the administrative action”. It is an attempt of over-judicialization of administrative process. Therefore, where an administrative authority is not exercising quasi-judicial powers and as such there is no duty to act judicially because the principles of natural justice are not attracted in such cases, Court may still insist on a “duty to act fairly”. As both doctrines operate in different areas of administrative action, so there is no chance of any conflict.

The right to fair hearing is a code of procedure and hence covers every stage through which an administrative adjudication passes, starting from notice to final determination. Detailed requirement of audi alteram partem range is a continuum from notice to the final determination.

(1) Right to Notice- Notice means knowledge of circumstances that ought to induce suspicion or belief, as well as direct information of that fact. Generally a notice in order to be adequate must contain the following:

(a) Time, Place and nature of hearing.

(b) Legal authority under which hearing is to be held.

(c) Statement of specific charges which the person has to meet.

Consequences of non-issue of notice:

It has no effect on the jurisdiction of the authority.

If prejudice has been cause by non issue of notice then it would vitiate the entire proceeding.

However, if the party itself is responsible for non-delivery of notice to it then there would be no effect on the overall proceedings.

Right to know the evidence against him and rebutt it- Every peron has a right to inspect the evidence against himslf as and when a case is filed against him. Thus, nothing can be used against a person which has not been brought to his notice.

Right to present case and evidence- The party shall be allowed to present his case either orally or in writing at the discretion of the authority. Oral hearing is not a requisite. In Union of India v J.P. Mitter [6] the court refused to quash the order of the president of India in a dispute realting to the age of a high court judge on the ground that the president did not grant oral hearing even on request. The court was of the view that when aperson has been given an oppurtunity to represent himself by way of writing then there is no infringement of his rights guarabteed by natural justice.

Courts are of the view that any decision given in contravention to natural rights is mereley voidable and not void. [7]

Conclusion

Principles of natural justice which include an oppurtunity to the person against whom a decision is sought to be taken and an obligation of the authority to give reasons for its decisions are also necssary for ensuring openness of government which is paramount in a democracy. These principles have been integrated into our system of administration of justice and the courts are required to follow them through the formal laws of procedure and evidnce. Where formal laws of procedure or evidence are not applicable as in case of tribunals or administrative authorities, rules of natural justice serve as minimum norms of proceduaral fairness. It is now fairly settled that principles of natural justice form part of the legal and judicial procedure.

Principles of natural justice ensure that decisions are taken

(1) Objectively

(2) Impartially

(3) With knowledge on the part of those who ae likely to be affected.

However, I must stress on the point that rules of natural justice are intended to inject justice into law and they cannot be used to defeat the ends of justice. Natural Law, like ultra vires and Public Policy, is a branch of public law and is formidable weapon which can be weilded to secure justice to the citizen. Thus a court must be careful while applying the principles of natural justice as it may be used by vested interests to defeat the very ends of justice it serves to protect.

Annexure

Hira Nath Mishra and Ors.

V

The Principal, Rajendra Medical College, Ranchi and Anr. [8]

FACTS OF THE CASE

This is an appeal by special leave by three students of Rajendra Medical College, Ranchi from an order of the Patna High Court. The appellants were Second Year students of the college and lived in a Hostel attached to the college. There was another Hostel for girl students. On the night between 10th and 11th June, 1972 some male students of the college were found sitting on the compound wall of the girls Hostel. Later they entered into the compound and were seen walking without clothes of them. They went near the windows of the rooms of some of the girls and tried to pull the hand of one of the girls. Some five of these boys then climbed up along the drain pipes to the terrace of the girls Hostel where a few girls were doing their studies. On seeing them the girls raised an alarm following which the students ran away, The girls recognized four out of these male students-three of them being the present appellants and the fourth being one Upendra Prasad Singh.

On 14-6-1972 a complaint was received by the Principal from 38 girl students residing in the Girls Hostel alleging the above facts. The Principal decided to hold an enquiry and entrusted the enquiry to three members of the staff. The four students were directed to present themselves in the Principal’s room in connection with the enquiry. Accordingly, they attended at the time of enquiry which was conducted by the Enquiry Committee in the room itself – the Principal having left the place. The students were called one after other in the room and to each one of them the contents of the complaint were explained, due care being taken not to disclose the names of the girls who had made the complaint. The Enquiry Committee also found that though there were many more students the girls could identify only these four students by name. The girls belonged to the same college and hence they had known these students. The statements of the girls had not been recorded in the presence of the appellants as it was thought it was unwise to do so.

The enquiry committee decided that since the students have not produced any evidence to the contrary and the girls have identified them by name thus they must be given a strong deterrent punishment. Thus, they were expelled from the college for 2 calendar years.

PROCEEDINGS BEFORE TRIAL COURT

The contention before the Patna High Court was that since the enquiry, if any, was conducted behind their backs and also that since they were not even knowing the names of the complainants thus the basic tenets of natural law are being transgressed. The Court however decided that the circumstances of the situation warranted such a decision and thus it rejected the petition.

QUESTION BEFORE THE COURT:-

1. Whether or not the rules of natural justice have been transgressed in the present case?

The court decided that no rules of natural justice have been transgressed in the present case and thus dismissed the appeals.

REASONING:-The Court observed that:-

The girl students had been entrusted under the guardianship of the college authorities and if that authority was undermined in such a ghastly manner, the parents of girls may remove them from college or even stop their further education. The girls would thus lose out without any fault of theirs.

The court also observed that since the college authorities were ready to disclose the information to the court or even to the counsels of the students, it is reasonable to assume that they had no evil intentions.

The court also said that the rules of natural justice are not a straight jacket formula and that the application of the same depends upon various external factors and circumstances.

A.K. Kraipak and Ors.

v

Union of India and Ors [9]

FACTS OF THE CASE

This petition was filed in the Supreme Court of India by some of the Gazetted Officers serving in the forest department of the State of Jammu and Kashmir. All of them feel aggrieved by the selections made from among the officers serving in the forest department of the State of Jammu and Kashmir to the Indian Forest Service, a service constituted in 1966 under Section 3(1) of the All India Services Act, 1951 and the rules framed there under. According to them the selections notified in the said notification are violative of Articles 14 and 16 of the Constitution and on the further ground that the selections in question are vitiated by the contravention of the principles of natural justice.

The central government has powers under Section 3 of the All India services Act, 1951 to make rules for appointment of officers in consultation with the state governments.

The only rule relevant for our present purpose is Rule 4(1) which reads:

As soon as may be, after the commencement of these rules, the Central Government may recruit to the service any person from amongst the members of the State Forest Service adjudged suitable in accordance with such Regulations as the Central Government may make in consultation with the State Governments and the Commission.

Regulation 3 of the India Forest Services Regulation, 1966 provides for the Constitution of a special selection board. It says that the purpose of making selection to State cadre, the Central Government shall constitute a special selection board consisting of the Chairman of the Union Public Service Commission or his nominee, the Inspector General of Forests of the Government of India, an officer of the Government of India not below the rank of Joint Secretary, the Chief Secretary to the State Government concerned or the Secretary of that Government dealing with the forests and the Chief Conservator of Forests of the State Government concerned. Regulation 4 prescribes the conditions of eligibility. That Regulation contemplates the formation of a service in the senior, scale and a service in the junior scale. Regulation 5 is important for our present purpose. It deals with the preparation of the list of suitable candidates. It reads :

(1) The Board shall prepare, in the order of preference, a list of such officers of State Forest Service who satisfy the conditions specified in Regulation 4 and who are adjudged by the Board suitable for appointment to posts in the senior and junior scales of the Service.

(2) The list prepared in accordance with Sub-regulation (1) shall then be referred to the Commission for advice, by the Central Government along with :-

(a) the records of all officers of State Forest Service included in the list;

(b) the records of all other eligible officers of the State Forest Service who are not adjudged suitable for inclusion in the list, together with the reasons as recorded by the Board for their non-inclusion in the list; and

(c) the observations, if any, of the Ministry of Home Affairs on the recommendations of the Board.

On receipt of the list, along with the other documents received from the Central Government the Commission shall forward its recommendations to that Government.

In pursuance of these regulations a service board was constituted which was to adjudge the candidates for IFS from the state of J & K.

Naquishband, the chief conservator of forests at that point of time was also on the board. It must be noted that a petition had been filed by one of his seniors alleging that he had been overlooked for the post.

Subsequently, some of the officers were selected. However, no test or interview of theirs was taken and they were selected solely on the basis of their official records. Officers who were not selected argued that they were not even knowing as to what was there in their official records nor were they given a chance to represent themselves before the board.

Naqishband was also one of the contenders for a post in the IFS. The court, however confided with the view that he did not sit in the meeting when his name was discussed.

QUESTION BEFORE THE COURT:-

Was the appointment of Naquishband to the board of selection valid?

Whether the principles of natural justice apply to the present administrative proceedings?

JUDGMENT:-

Supreme Court in its ruling decided that he appointment of Naquishband in the selection board was inappropriate.

Moreover, the court emphasized the point that the rules of natural justice apply to the present proceedings.

REASONING

The court said that the appointment of Naqishband in the present case as a member of the board was unfortunate. The court further observed that it was true that ordinarily the Chief Conservator of Forests in a State should be considered as the most appropriate person to be in the selection board. He must be expected to know his officers thoroughly, their weaknesses as well as their strength. His opinion as regards their suitability for selection to the All India Service is entitled to great weight. But then under the circumstances it was improper to have included Naquishbund as a member of the selection board. He was one of the persons to be considered for selection. It is against all canons of justice to make a man judge in his own cause. The court observed that though it has been stressed by other members of the board by way of affidavit that Naqishband never tried to influence their decision making in a negative sense. The court observed that his mere presence in the board casts a doubt in the minds of other candidates and thus it cannot be allowed as justice must not only be done but seen to be done as well.

The court said that the aim of the rules of natural justice is to secure justice or to put it negatively to prevent miscarriage of justice. These rules can operate only in areas not covered by any law validly made. In other words they do not supplant the law of the land but supplement it. The concept of natural justice has undergone a great deal of change in recent years. In the past it was thought that it included just two rules namely (1) no one shall be a judge in his own case (Nemo debet esse judex propria causa) and (2) no decision shall be given against a party without affording him a reasonable hearing (audi alterant partem). Very soon thereafter a third rule was envisaged and that is that quasi-judicial enquiries must be held in good faith, without bias and not arbitrarily or unreasonably. 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 enquiries. Often times it is not easy to draw the line that demarcates administrative enquiries from quasi-judicial enquiries. Enquiries which were considered administrative at one time are now being considered as quasi-judicial in character. Arriving at a just decision is the aim of both quasi-judicial enquiries as well as administrative enquiries. An unjust decision in an administrative enquiry may have more far reaching effect than a decision in a quasi-judicial enquiry.