The Limits of Fairness Exploring Circumstances that Restrict Natural Justice Principles

I. Introduction

Our legal system strives for fairness in decision-making, and a cornerstone of this is the concept of natural justice, or procedural fairness. These principles ensure individuals are heard, understand the allegations against them, and have their cases decided by unbiased parties. This level playing field is crucial for just outcomes. However, the legal landscape isn’t always black and white. There are situations where upholding natural justice in its entirety might conflict with other important considerations. This creates a tension – can we achieve fairness while also safeguarding other interests. This very question lies at the heart of exceptions to natural justice. By exploring these exceptions, we delve into the complexities of balancing fairness with competing priorities within the legal system.

II. Principles of natural justice

The Principles of natural justice occupy a very important place in the study of the administrative law. These rules are not embodied rules. They are not fixed in any Code². They are judge-made principles and are regarded as counterpart of the American procedural due process. These principles have been developed to secure justice and to prevent miscarriage of justice³. They require fair play in action⁴. The basic principle is that where a person or public body has the power in reaching, a decision to affect the rights of subjects, then, that person must comp with what have become known as the rules of natural justice.

The Principles of natural justice are treated as a part of the constitutional guarantee contained in Article 14⁵. The violation of the principles of natural justice by the administrative authorities is taken as the violation of Article 14. Non-compliance with the principles of natural justice results in arbitrariness which is the same as discrimination and where the discrimination is the result of State action, it is a violation of Article 14. Actually the concept of quasi-judicial, natural justice and fairness all have been developed to control the administrative action. The object has been to secure justice and prevent miscarriage of justice. The concept of rule of law would have lost its importance if the administrative authorities are not charged with the duty of discharging their functions in a fair and just manner. In Vionet v. Barrett⁶, Lord Esher, M.R. has defined it as “the natural sense of what is right and wrong”.

Subsequently, in Hopkins v. Smethwick Local Board of Health⁷, Lord Esher, M.A. instead of taking the definition of the natural justice given by him earlier chose to define it as “fundamental justice”.

In Ridge v. Baldwin⁸, Harman, L.J. equated it with ‘fair play in action’. In re H.K. (An Infant)⁹, Lord Parker has defined it as ‘duty to act fairly.

In Regina v. Secretary of State for Home Affairs¹⁰, parte Hoselaball, Lord Geoffrey Lane, L.J. has defined it as “common fairness”.

In Maneka Gandhi v. Union of India¹¹, Mr. Justice Bhagwati has taken it as fair play in action. Articles 14 and 21 have strengthened the concept of natural justice. Article 14 applies not only to discriminatory class legislation but also to discriminatory or arbitrary State action. Violation of the principles of natural justice results in arbitrariness and therefore it results in the violation of Article 14. Article 21 requires substantive and procedural due process. Article 21 provides that no person shall be deprived of his life or personal liberty except according to the procedure established by law. The procedure prescribed for deprivation.

Rules of Natural Justice

i. NEMO JUDEX IN CAUSA SUA

The legal principle “no one should be a judge in his own case” exists to prevent bias and ensure impartial decision-making. Bias refers to a prejudice that can cloud judgment and lead to unfair outcomes, whether consciously or unconsciously. This principle aims to keep judges neutral, preventing them from favouring themselves or a cause they’re invested in. Instead, judgments should be based solely on the presented evidence and the law, not on personal motivations or pre-existing views. This ensures that everyone receives a fair hearing and that the outcome reflects the facts of the case, not the judge’s personal stake.

ii. AUDI ALTERAM PARTEM

The Latin phrase “audi alteram partem” translates to “hear the other side,” encapsulating a fundamental principle of natural justice the right to a fair hearing. This vital right ensures that no one faces condemnation or punishment from a court without a proper opportunity to present their case¹². Unfortunately, not all jurisdictions consistently uphold this principle. In some instances, cases are decided without due process, denying individuals the chance to be heard. At its core, “audi alteram partem” demands a fair and impartial trial. Both parties must be given the opportunity to present their arguments and relevant evidence. This creates a level playing field and promotes just outcomes. Furthermore, this principle prohibits punishment without valid justification. Prior notice of charges is crucial, allowing individuals to prepare their defence effectively. This right to a fair hearing, also known as the rule against biased judgment, is a cornerstone of natural justice. It’s important to note that the specific elements of a fair hearing can vary depending on the situation and legal authority. However, the core principle ensuring all parties have a chance to be heard remains constant.

iii. REASONED DECISION

A reasoned decision, also known as a “speaking order,” is a crucial element of fair and transparent administrative action. This means the decision-making body explains the rationale behind their ruling¹³. Knowing the reasons for a decision allows the affected party to understand if it’s fair or arbitrary. This fosters trust in the system. The requirement to provide reasons forces the decision-makers to carefully consider the facts and legal aspects of the case, reducing the risk of arbitrary or capricious actions. Without clear reasons, appealing a decision becomes difficult. Reasoned decisions empower individuals to effectively challenge unfavorable outcomes. Courts rely on explanations to assess the decision’s legitimacy and determine if intervention is necessary. Reasoned decisions facilitate proper judicial oversight. In essence, reasoned decisions promote transparency, accountability, and fairness within the administrative process.

III. Rule of fairness – audi alterm partem

As already stated it means here the other side. This is one of the important principles of natural justice. Fair hearing contains the following main components or ingredients¹⁴.

The principle of “audi alteram partem” (hear the other side) requires a fair hearing, and the foundation of this right rests on proper notice. An affected individual cannot defend themselves effectively without knowing the case against them. Therefore, authorities are obligated to provide a notice outlining the allegations before initiating proceedings. Failure to provide notice violates the principles of natural justice. This notice must be served appropriately on the concerned party. However, exceptions exist. In situations where the affected party actively avoids receiving notice, such as absconding, the omission might not be fatal. The notice should also provide sufficient time for the individual to prepare their defence¹⁵.

The specific timeframe deemed adequate depends on the complexities of each case. For a notice to be considered fair and reasonable under natural justice principles, it must be clear and unambiguous. Ambiguous or vague notices fail to fulfil their purpose of informing the affected party. The notice should clearly state the intended action against the individual¹⁶. For example, if property acquisition is planned, details of the specific property must be outlined. The notice should explain the potential consequences or next steps envisioned by the authority. Vague references to “action being taken” are insufficient. These elements ensure the recipient understands the situation and has the opportunity to prepare an effective defence.

The adjudicatory authority should afford reasonable opportunity to the party to present their case. This can be done through writing or orally at the discretion of the authority unless the statute under which the authority is functioning directs otherwise. The requirements of natural justice are met only if opportunity to represent is given in view of the proposed action. The demands of natural justice are not met even if the very person proceeded against has been furnished information on which the action is based, if it is furnished in a casual way or for some other purposes. This does not mean that the opportunity need be a “double opportunity”, that is, one opportunity on the factual allegations and another on the proposed penalty. But both may be rolled into one.

Adjudicating authority receives all the relevant material produced by the individual. The adjudicating authority discloses to the individual concerned evidence or material which it wishes to use against him. The adjudicating authority provides the person concerned an opportunity to rebut the evidence or material which the said authority wants to use against him. The right to rebut adverse evidence presupposes that the person has been informed about the evidence against him¹⁷.

‘Cross-examination’ is the most powerful weapon to elicit and establish truth. However, the Courts do not insist on ‘cross-examination’ in administrative adjudication unless the circumstances are such that in the absence of it the person cannot put up an effective defence. Normally representation through a lawyer in any administrative proceeding is not considered an indispensable part of the rule of natural justice as oral hearing is not included in the meaning of fair hearing.

The principle of natural justice usually guarantees a hearing before a decision is made (pre-decisional hearing). However, situations arise where immediate action is deemed necessary in the public interest, making a pre-decisional hearing impractical. In such circumstances, the Supreme Court recognizes the concept of a post-decisional hearing¹⁸.This means the individual affected by the decision is given an opportunity to be heard after the initial decision has been made. Essentially, the Court acknowledges the need for urgency in certain cases but emphasizes the importance of eventual fairness. A post-decisional hearing allows the individual to present their case and potentially challenge the initial decision.

IV. Exclusion to the rule of fairness

The principles of Natural Justice are said to be not a Mantra to be applied in vacuum in all cases. It cannot be put in any strait-jacket formula. The principles, are, furthermore, not required to be complied with, when it will lead to an empty formality. The question as to when and to what extent the principles are required to be complied with, therefore, depends upon the facts of the case,” the nature of the inquiry, the rules under which the tribunal is acting, the subject-matter to be dealt with and so forth¹⁹. It is the general rule that every person whose rights are affected by the administrative actions is entitled to claim natural justice. The courts have generally read into the provisions of the relevant sections a requirement of giving a reasonable opportunity of being heard before an order is made which would have adverse civil consequences for the parties affected. However, there are certain exceptions to this general rule. In certain exceptional circumstances, the requirement of the natural justice is excluded.

Such exceptional circumstances are as follows:

1. Exclusion by Statutory provisions

Natural justice principles, like the right to a fair hearing, are generally assumed to apply in legal decisions. However, statutes, or written laws, can override these principles. If a statute clearly says natural justice principles must be followed, that’s the law. If the statute is silent, courts typically still consider these principles. But, statutes can also exclude natural justice. In such cases, courts have to follow the law, even if it means a less fair process. In short, natural justice is important but can be overridden by clear and specific laws. Thus, if a statutory provision either expressly or by necessary implication excludes the application of any or all the principles of natural justice, then the Court cannot ignore the mandate of the legislature or the statutory authority and cannot read into the concerned provisions of the principles of natural justice.

In Gullapalli Nageshwar Rao v. A.P. State Road Transport Corporation²⁰, the court held that the statutory provisions excluding the application of the principles of natural justice must not be violative of the constitutional provisions.

In Delhi Transport Corporation v. D.T.C. (Mazdoor Congress)²¹, the validity of Regulation 9(b) of the Delhi Road Transport Authority (Conditions of Appointment and Service) Regulations was challenged. This Regulation empowered the authority to terminate the services of a permanent and confirmed employee by issuing a notice without assigning any reason in the order and without giving any opportunity of hearing to the employee before passing the order for termination of services.

2. Exclusion by the constitutional provisions

The Indian Constitution includes some interesting interplay between express provisions and implied principles. While principles of natural justice, ensuring fairness in decision-making, are generally considered implicit in fundamental rights like Articles 14 (equality) and 21 (life and liberty), the Constitution itself can override them in specific situations.

Article 311(2) serves as a prime example. This provision offers protection to civil servants, but it does so within the framework set by Article 310. Article 310 incorporates the British concept of “pleasure,” meaning civil servants hold their positions at the pleasure of the President or Governor. This effectively bypasses the need for reasons or compensation upon termination, aligning with the idea that civil service is a duty, not a contractual right. However, Article 311(2) steps in to limit this power. It ensures that certain safeguards are followed before dismissal of civil servants (except for defence personnel). In essence, the Constitution allows for the exclusion of natural justice principles in specific circumstances, like termination of government employees, through provisions like Article 310. However, these exclusions come with their own limitations, as seen with the safeguards provided by Article 311(2).

In State of Haryana v. Piara Singh²², the Supreme Court has held that in service matter, the role of the court is to ensure rule of law and to see that the executive acts fairly and gives fair deal to its employees consistent with the requirement of Articles 14 and 16. For example, if a Municipal Corporation is established, the Government is not required to hear the residents of the Municipal area before taking decision for its establishment because the establishment of a Municipal Corporation is a legislative act and the rules of natural justice are not applicable to the legislative act.

In the case of Tulsi Ram Patel v. Union of India²³, the Supreme Court has held that in these three conditions, there is no need to hold any inquiry and to give a reasonable opportunity of hearing and even the service rule cannot confer on the servant the right of hearing in the aforesaid three conditions because the rule-making power under Article 309 is subject to Article 311 and hence any rule contravening Article 311 would be invalid. In this case, the Supreme Court has made it clear that Article 14 cannot be invoked to imply natural justice in the three clauses stated above, however, if any of them is applied on extraneous grounds or on a ground having no relation to the vitiation envisaged in that clause, the action taken against the servant would be taken as mala fide and, therefore, invalid and in such condition, invalidating factor may be referable to Article 14.

3. Exclusion in case of legislative act

The principles of natural justice may not be brought into operation where the action of the Administration in question is legislative and not administrative in character. As to what constitutes a legislation action, the test ordinarily applied is an order of general nature and not one applying to one or a few specified persons, is regarded as legislative in nature. “A legislative act”, says De Smith, “is the creation and promulgation of a general rule of conduct without reference to particular cases”. Legislation, it is said, is the process of formulating a general rule of conduct without reference to particular cases and usually operates in future. The Legislature, thus, is not expected to give a notice and afford a hearing while laying down a general rule.²⁴

In Charan Lal Sahu v. Union of India²⁵, famously known as Bhopal Gas Disaster case, wherein the constitutional validity of the Bhopal Gas Leak Disaster (Processing of Claims) Act, 1985 was involved, the Supreme Court ruled that “For legislation by Parliament no principle of natural justice is attracted provided such legislation is within the competence of the legislature.”

In Union of India v. Cynamide India Ltd.²⁶ Where the Supreme Court held that no principles of natural justice had been violated when the government issued a notification fixing prices of certain drugs. The court reasoned that since the notification flowed from a legislative act and not an administrative one, so the principles of natural justice would not apply.

4. Exclusion in Public Interest

Many-a-time, hearing may cause delay in taking appropriate administrative action, defeating the very purpose for which it is taken in such a case. Summary action in such circumstances, without observance of the principles of natural justice would be upheld to be taken in public interest²⁷. The observance of the principles of natural justice may be excluded in case such observance would cause injury to the public interest.

In Union of India v. Tulsi Ram Patel, the Supreme Court has made it clear that the rules of natural justice can be avoided if its observance will paralyse the administrative process. The cases of public interest include the defence of the country and maintenance of State secret. Thus, the rules of natural justice may be excluded or avoided in the interest of the defence of the country or keeping of State secret. Thus, the authorities are not required to disclose the information relating to the defence policy or defence matters because such disclosure may seriously jeopardise the defence planning of the Government.

In Satyavir Singh v. Union of India, the Supreme Court has expressed the view that natural justice must be confined within their proper limits and must not be allowed to run wild. The determination of the authority that the exclusion of the rule of natural justice is in public interest is not final and the court may examine whether the exclusion is necessary for the protection of the public interest. The Court can determine whether the exclusion is in public interest or not²⁸.

In the case of Maneka Gandhi v. Union of India, the Court has also held that in a situation where prior hearing is dispensed with on the ground of public interest, opportunity of post-decisional hearing must be given to the person concerned. Post-decisional hearing means hearing after the decision or order. If the public interest demands immediate action and it is not found practicable to afford hearing before the decision or order, the Supreme Court insists on the hearing after the decision or order²⁹.

5. Exclusion in case of the need of prompt action or in emergency or necessity

The rules of natural justice may be excluded where prompt action is required to be taken in the interest of public safety or public morality or public health³⁰. Thus, the pre-decisional hearing may be excluded where the prompt action is required to be taken in the interest of the public safety or public morality, etc. For example, where a person who is dangerous to peace in the society is required to be detained or externed, or where a building which is dangerous to the human lives is required to be demolished, or a trade which is dangerous to the society is required to be prohibited, a prompt action is required to be taken in the interest of public and hearing before the action may delay the administrative action and thereby cause injury to the public interest and public safety, etc.

In Swadeshi Cotton Mills v. Union of India³¹, the Supreme Court has held that the audi alteram partem rule is very flexible and adaptable concept of natural justice. It can be modified to adjust and harmonise the need for speed and obligation to act fairly and thus the measure of its application may be cut short in reasonable proportion to the exigencies of the situation. The extent and measures of the application of fair hearing at the pre-decisional stage depends upon the degree of urgency (if any) evident from the facts and circumstances of the particular case.

6. Exclusion in the cases of interim preventive action

If the action of the administrative authority is a suspension order in the nature of a preventive action and not a final order, the application of the principles of natural justice may be excluded. In Abhay Kumar v. K. Srinivasan³², an order was passed by the college authority debarring the student from entering the premises of the college and attending the classes till the pendency of a criminal case against him for stabbing a student. The court held that the order was interim and not final. It was preventive in nature. It was passed with the object to maintain peace in the campus. The rules of natural justice were not applicable in the case of such order.

The Supreme Court in Maneka Gandhi v. Union of India³³ explained that, where an obligation to give notice and opportunity to be heard would obstruct the taking of prompt action, especially action of a preventive or remedial nature, right of prior notice and opportunity to be heard may be excluded by implication.

7. Exclusion on the ground of impracticability

The judicial approach as to the observation of the requirements of natural justice has not been theoretical but pragmatic in view of the fact-situations. Thus, where the number of affected persons is so large that it is not practicable to give all of them the opportunity of hearing, the Court dispenses with the observance of natural justice. In R. Radhakrishen v. Osmania University³⁴, where the entire MBA entrance examination was cancelled by the university because of mass copying, the court held that notice and hearing to all candidates is not possible in such a situation, which had assumed national proportions. Thus, the court sanctified the exclusion of the rules of natural justice on the ground of administrative impracticability.

8. Exclusion in case of fraud

In the U.P. Junior Doctors’ Action Committee case³⁵, the Supreme Court ruled that students who gained admission to medical school through fraud weren’t entitled to a hearing before their admission was revoked. The court reasoned that the concept of fair procedure (natural justice) didn’t apply in this situation. The reason is that the students obtained their admissions through a fake court order. Because their admissions were based on cheating, the court held that they didn’t deserve the protection of natural justice. The court emphasized that following the rules wouldn’t be fair in this case, as it would reward deceitful behaviour. This case clarifies that the right to a hearing isn’t absolute. When admissions are obtained fraudulently, universities can revoke them without going through a formal hearing process.

9. Exclusion in case of confidentiality

It is well settled that the right to a fair hearing may have to yield to overriding considerations of national security. Likewise, in cases which require maintenance of confidentiality, the observance of the requirements of natural justice may be excluded.

In Malik Singh v. State of Punjab³⁶, the Supreme Court held that maintenance of surveillance register by the police, in respect of suspicions or dangerous characters, required confidentiality. Neither the person whose name was entered in the register nor any other member of the public could have access to it. Observance of the principles of natural justice in such a matter, the Court held, would defeat the very purpose of surveillance. There might be every possibility of the ends of justice being defeated instead of being served, the Court said, if natural justice was insisted. Likewise, in matters of making appointments to public offices, requiring confidentiality, the requirements of natural justice may be excluded.

10. Exclusion in cases of Academic Adjudication

The Supreme Court’s decision in Jawaharlal Nehru University v. B.S. Narwal³⁷ suggests that students might not always have the right to be heard in academic matters. In this case, a student was removed for poor academic performance without a hearing, and the court upheld the university’s action. The court clarified that when a qualified academic body evaluates a student’s work over time and deems it unsatisfactory, the principle of natural justice, which guarantees fair procedures, might not apply. However, it’s important to note that this exception only applies to academic performance judgments, not disciplinary actions.

11. Exclusion when no right of the person is infringed

If the right of a person is not prejudicially affected, the application of the rules of natural justice is not attracted. For example, under the Delhi Rent Control Act, limited tenancy can be created and it can be terminated on the expiry of its term. If the term of the limited tenancy expires and warrant of possession is issued to the tenant without any notice of hearing to him, the warrant of possession cannot be held to be invalid on the ground that no hearing has been given to the tenant before the issue of the said warrant. Its reason is that after the expiry of the period of limited tenancy, a person has no right to retain the possession and therefore by the issue of the said warrant, no right has been violated and as a result, the application of the rules of natural justice is not attracted.³⁸

12. Doctrine of Waiver

According to the rule of waiver, a party to a biased adjudication may waive his objections. A party to adjudication must take objections as soon as he comes to know the facts which entitle him to object. Having come to know of the disqualification arising out of bias in the adjudicator, if the party has acquiesced in the proceeding by failing to take objections, at the earliest opportunity, objection is regarded as having been waived. Or, by appearing and keeping silent, knowing all the facts, he may abandon his right to object.³⁹

In Tata Cellular v. Union of India⁴⁰, the official in discharge of his statutory duties recommended acceptance of tender submitted by a company in which his son was employed. The official concerned was not a decision-maker at all but his involvement was necessary in view of Section 3(6) of the Telegraph Act, 1885. The acceptance of the tender submitted by the said company in which the officer’s son was employed was not taken to be vitiated on the ground of bias.

13. “Useless formality” theory

At times, it has been considered as to whether it is essential to observe natural justice when non-observance would make no difference, the admitted or undisputed facts, speaking for themselves. The question of whether the rules of natural justice should be followed even when there are undisputed facts that speak for them arose in the seminal case of S.L. Kapoor v. Jagmohan & Ors.⁴¹ Since the outcome would ultimately be the same, there would be no benefit to following the formal notice process. The Supreme Court came to the conclusion that “natural justice need not be observed simply because facts are admitted or are indisputable.”

The Supreme Court hinted in its advisory opinion that there might be a rare exception. This exception applies when the facts are absolutely clear and undisputed, leading to only one possible conclusion and penalty. In such a clear-cut case, the court might not force compliance with natural justice principles through a writ. However, the court stressed that this doesn’t mean natural justice isn’t important. The court simply wouldn’t waste its time with a pointless order. The court went on to say that this exception shouldn’t be applied in situations where there’s even a hint of disagreement about the facts or the penalty is flexible. The court concluded that the absence of harm to the affected party isn’t enough reason to skip following the rules of natural justice.

V. Conclusion

Although fundamental for fair decisions, principles of natural justice can be exceptionally excluded. Clear legislation explicitly overriding the right to be heard is a strong argument. However, courts tread carefully, interpreting such laws restrictively. Alternatively, for purely policy-based decisions with minimal individual impact, or for initial applications (like licenses), natural justice might not be crucial. Finally, exclusion may be considered in rare cases where following these principles would be impractical or pointless. Ultimately, excluding natural justice is a high hurdle, requiring a strong justification to override these fairness protections.

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