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THE CONCEPTUAL ANALYSIS OF THE PRINCIPLE AUDI ALTERAM PARTEM AND ITS EVOLUTION FROM THE COMMON LAW
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THE
CONCEPTUAL ANALYSIS OF THE PRINCIPLE AUDI ALTERAM PARTEM AND ITS EVOLUTION FROM
THE COMMON LAW
AUTHORED BY - ANSU EALIAS
1ST YEAR LLM
GOVERNMENT LAW COLLEGE ERNAKULAM
AUDI ALTERAM PARTEM
Introduction
"Natural
justice" is an important concept in administrative law. In the words of
Megarry J[1],
it is "justice that is simple and elementary, as distinct from justice
that is complex, sophisticated and technical". The principles of natural
justice or fundamental rules of procedure for administrative action are neither
fixed nor prescribed in any code. They are better known than described and
easier proclaimed than defined. Natural justice has meant many things to many
writers, lawyers and systems of law. It has many colors and shades and many
forms and shapes. According to De Smith[2], the
term "natural justice” expresses the close relationship between the common
law and moral principles and it has an impressive ancestry. It is also known as
"substantial justice", "fundamental justice",
"universal justice "or "fair play in action". It is a great
humanizing principle intended to invest laws with fairness, to secure justice
and to prevent miscarriage of justice. 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[3],
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. 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.
Meaning of Audi Alteram Partem
"Audi
Alteram Partem" means "hear the
other side”,or "no man should be
condemned unheard" or "both
the sides must be heard before passing any order". In other words, it
denotes that every party shall get an opportunity of hearing and no one shall
go unheard in a case. The maxim Audi Alteram Partem is derived from the Latin
phrase “audiatur et altera pars” which
means that every party shall be heard. This maxim is one of the fundamental
rules of administrative law that ensures justice to both parties. As per this
maxim, every party shall get an opportunity to plead and assert evidence to
support his case.
Doctrine Explanation
The
second fundamental principle of natural justice "Audi Alteram Partem".
This is the basic requirement of rule of law. It has been described as
"foundational and fundamental" concept. It lays down a norm which
should be implemented by all courts and tribunals at national as also at
international level.
De
Smith[4]
says: No proposition can be more
clearly established than that a man cannot incur the loss of liberty or
property of an offence by a judiciary proceeding until he has had a fair
opportunity of answering the case against him.
"A
party is not to suffer in person or in purse without an opportunity of being
heard[5]".
This is the principle of civilized jurisprudence and is accepted by laws of Men
and God.
In
short, before an order is passed against any person, reasonable opportunity of
being heard must be given to him. Generally, this maxim includes two
elements:1)notice, and 2)hearing.
Origin of the Concept of Natural Justice
Natural
justice has discovered its root in the early Greek and Roman empires, being
recognized even in Kautilya's Arthashastra. In a larger number of ways than
other the Indian concept of dharma is similar to the concept of natural
justice. All organs of the State including executive, legislative and judicial
were kept up by the king. In this way the obligation was on the king to reform
and make the Code of law to keep up peace and equality in the State. Indian
emperor Ashok set out the significant rules regarding what nature of justice
ought to be. He had extraordinary worry for reasonableness in the activity of
justice, alert and tolerance in use of sentences, and so forth. Similarly the
great Babylonian king Hammurabi ensured the obligations of officials by ruling
that “any judge who reaches an incorrect decision is to be fined and removed
from the bench permanently”.
As
it is apparent, principles of natural justice are not a new invention, but
also, it isn’t a product of man either. It originated from our core moral
conscience and has been since built upon by several philosophers, jurists,
kings and teachers. Aristotle, who is considered the biggest proponent of
Natural justice, holds that, as support for a virtuous existence that advances
lives of individuals and promotes perfect community, people should make use of
practical wisdom or active reason to be consistent with a virtuous existence.
In
this context, we must refer to para 43 of the judgment of the Hon'ble Supreme
Court in the case of Mohinder Singh Gill v. Chief Election
Commissioner[6],
which says:
“Indeed, natural justice is a pervasive
facet of secular law where a spiritual touch enlivens legislation,
administration and adjudication, to make fairness a creed of life. It has many
colours and shades, many forms and shapes and, save where valid law excludes,
it applies when people are affected by acts of authority. It is the bone of
healthy government, recognised from earliest times and not a mystic testament
of judge-made law. Indeed from the legendary days of Adam-and of Kautilya’s
Arthashastra-the rule of law has had this stamp of natural justice, which makes
it social justice. We need not go into these deeps for the present except to
indicate that the roots of natural justice and its foliage are noble and not
new-fangled. Today its application must be sustained by current legislation,
case law or other Extant principle, not the hoary chords of legend and history.
Our jurisprudence has sanctioned its prevalence even like the Anglo-American
system.”
In
Swadeshi
Cotton Mills V. Union of India[7]
, It was observed that Natural justice is a branch of public law and is a
formidable weapon which can be wielded to secure justice to the citizen.
Also
in Canara
Bank V. V K Awasthi[8],
the supreme court observed that principles of natural justice are those rules
which have been laid down by courts as being the minimum protection of the
rights of the individual against the arbitrary procedure that may be adopted by
a judicial, Quasi–judicial and administrative authority while making an order
affecting those rights. These rules are intended to prevent such authority from
doing injustice.
Even
God did not pass sentence upon Adam before he was called upon to make his
defense. Adam, says God, „Where art thou? has thou not eaten out of the tree
whereof I commanded thee that thou should not eat?
Accordingly
even though person has committed a wrongful act he must be heard before
sentenced, specially where decision affecting liberty or property is to be made
fair opportunity of hearing must be provided, for this reason whatever the
meaning of natural justice may have been, and still is to other people, the
common law lawyers have used the term in a technical manner to mean that in
certain circumstances decisions affecting the rights of citizens must only be
reached after a fair hearing has been given to the individual concerned. And in
this context fair hearing requires two things, namely, AUDI ALTERAM PARTEM and
NEMO DEBET ESSE JUDEX IN PROPRIA SUA CAUSA.
Audi Alterm
Partem –A Historical Prescriptive
The rules
of procedural fairness, as rules of natural justice were derived from natural
law as is demonstrated by English cases of the seventeenth and eighteenth
centuries. The first limb to be considered in this connection is the so-called
hearing rule.
The
evolutions of hearing rule come into view in many cases in the Year Books.
Chief Justice Coke, who played a leading role in its exposition and the
development of the remedy of mandamus where it had been breached, inferred it
from the provision of the Magna Carta that: No free man shall be taken or
imprisoned ruined or disseised or outlawed or exiled or in any way ruined, nor will
we go or send against him, except by the lawful judgmentof his peers or by the
law of the land It was in Bagg's Case[9] (1615)
audi alterm partem was considered in length the case concerned municipal
misbehavior. The Mayor and Chief Burgesses of the Borough of Plymouth had
removed one of their members, James Bagg, from the office of Chief Burgess on
the grounds of his misconduct. They made a number of allegations against him.
They said that he had called the previous Mayor, Mr. Trelawney, a 'cozening
knave' and 'an insolent fellow'. They said that he had threatened to crack the
neck of the current Mayor, Thomas Fowens. Worst of all they said that
In
the presence and hearing of … Thomas Fowens, … and very many others of the
burgesses and inhabitants of the borough … and in contempt and distain of the
said Thomas Fowens, then mayor, turning the hinder part of his body in an
inhuman and uncivil manner towards the aforesaid Thomas Fowens, scoffingly,
contemptuously and uncivilly, with a loud voice, said to the aforesaid Thomas
Fowens, these words following that is to say, ('Come and kiss').
Mr
Bagg commenced proceedings in the Court of Kings Bench challenging his removal
from office by the Mayor and other Burgesses. The Court ordered the Mayor and
the Burgesses to either restore Mr Bagg to office or to show cause why he was
removed. An answer was given referring to Mr Bagg's very bad behavior. However,
the Court was not satisfied that the reasons given in the return to the writ
justified his removal. On the question of how and by whom and in what manner a
citizen or burgess should be disenfranchised, Coke CJ said: … although they
have lawful authority either by charter or prescription to remove any one from
the freedom, and that they have just cause to remove him; yet it appears by the
return, that they have proceeded against him without … hearing him answer to
what was objected, or that he was not reasonably warned, such removal is void,
and shall not bind the party.
Bagg's
Case was an early judicial expression of the hearing rule, although by no means
the first. It was probably most notable as one of the first occasions on which
mandamus was used as a tool for judicial review of administrative action. In
justifying the issue of the writ, Coke asserted the jurisdiction of the Court
of King's Bench in sweeping terms as:
not
only to correct errors in judicial proceedings, but other errors, and
misdemeanors [sic] extra-judicial, tending to the breach of peace, or
oppression of the subjects, or to the raising of faction, controversy, debate,
or to any manner of misgovernment; so that no wrong or injury, either public or
private, can be done but that it shall be (here) reformed or punished by due
course of law In 1723, the Court of King's Bench issued mandamus to the
University of Cambridge requiring the restoration to one Dr Bentley of the
degrees of Bachelor of Arts and Bachelor and Doctor of Divinity of which he had
been deprived by the University without a hearing. Dr Bentley had been served
with a summons to appear before a University court in an action for debt. He
said the process was illegal, that he would not obey it and that the
Vice-Chancellor was not his judge. He was then accused of contempt and without
further notice deprived of his degrees by the 'congregation' of the University.
The judgment of Fortescue J in the case is often cited as an example of the way
in which the idea of natural law informed the concept of natural justice.
Fortescue
J said: The laws of God and man both give the party an opportunity to make his
defence, if he has any. I remember to have heard it observed by a very learned
man upon such an occasion, that even God himself did not pass sentence upon
Adam, before he was called upon to make his defence.
After
Dr
Bentley's Case[10]
the hearing rule was reinforced in 1799 by Lord Kenyon CJ in R v Gaskin.
It was Lord Kenyon who apparently coined the Latin term 'audi alteram partem'
to encapsulate the rule, of which he said: It is to be found at the head of our
criminal law, that every man ought to have an opportunity of being heard before
he is condemned. This is how principle of Audi Alterm Partem evolved in common
law system.
The Principles were accepted as early as in the days of Adam and
of Kautilya’s Arthashastra. According to the Bible, when Adam & Eve ate the
fruit of knowledge, which was forbidden by God, the latter did not pass
sentence on Adam before he was called upon to defend himself. same thing was
repeated in case of Eve. Later on, the principle of natural justice was adopted
by English Jurist to be so fundamental as to over-ride all laws
Essential
Elements
1)Notice
Before
any action is taken, the affected party must be given a notice to show cause
against the proposed action and seek his explanation. It is a sine qua non of
the right of fair hearing. Any order passed without giving notice is against
the principles of natural justice and is void ab initio. 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.
In
a case of Punjab National Bank v. All India Bank Employees Federation[11],
the notice contained certain charges but the penalty was imposed on the charges
other than those mentioned in the notice. Thus, the charges on which the
penalty was imposed were not contained in the notice served on the person
concerned. The notice was not proper and, therefore, imposition of penalty was
invalid. It is to be noted if the person concerned is aware of the case against
him and not prejudiced in preparing his defense effectively the requirement of
notice will not be insisted upon as a mere technical formalities and proceeding
will not be vitiated merely on the technical ground. That the person concerned
was not served notice before taking the action as in case of Keshav
Mills Co. Ltd. V. Union of India[12],
The notice is required to be clear and unambiguous. If it is ambiguous or
vague, it will not be treated as reasonable and proper notice. If the notice
does not specify the action proposed to be taken, it is taken as vague and,
therefore, no proper as in case of Abdul Latif v. Commr[13].
The notice will also be vague if it does not specify the property proposed to
be acquired as in case of Tulsa Singh v. State of Haryana[14].
As regards the detention under any law providing for preventive, Clause (5) of
Article 22 provides that in such condition the making the order for such
detention must, as soon as may be, communicate to the detenue the grounds on
which the order has been made and must give him the earliest opportunity of
making a representation against the order. The grounds communicated to the
detenue must not be vague or insufficient or irrelevant, vague or in adequate,
the detenue is entitled to be released.
In
Ravi
S.Naik V. Union of India[15], a
member of Goa Legislative Assembly was disqualified by the speaker.The relevant
rules provided notice of "seven days" or "such further period as
the Speaker may for sufficient cause allow". In this instant case,
however, notice gave only three days time.
Holding
that there was no prejudice to the member and upholding the action, the Supreme
Court stated that the principles of natural justice are flexible and not
immutable. "Whether the requirements of natural justice have been complied
with or not has to be considered in the context of the facts and circumstances
of a particular case".
In
Ajith
Kumar Nag V. Indian Oil Corpn.Ltd[16]. ,an
employee of the corporation and assaulted and beaten the Chief Medical Officer.
His services were terminated under the relevant standing orders.The action was
upheld.
2)Hearing
Oral
or Personal Hearing- How Far Necessary: The second ingredient of audi alteram
partam (hear the other side) rule is the rule of hearing. If the order is
passed by the authority without providing the reasonable opportunity of being heard
to the person affected by it adversely will be invalid and must be set aside as
in the cases of Harbans Lal V. Commissioner[17], National
Central Co-operative Bank V. Ajay Kumar[18]and Fateh
Singh V. State of Rajasthan[19].
The reasonable opportunity of hearing which is also well known as 'fair
hearing' is an important ingredient of the audi alteram partem rule. This
condition may be complied by the authority by providing written or oral hearing
which is the discretion of the authority, unless the statue under which the
action being taken by the authority provides otherwise. Thus like U.S.A. and
England, the Courts in India do not consider the right to oral or personal
hearing as part of the principle of Audi Alteram Partem unless the statue under
which the action is taken by the authority provides for the oral or personal
hearing unless it is not indicated at without oral or personal hearing the
person cannot adequately present. Personal or oral hearing is important when
the context requires it was required in the case of A.K. Gopalan V. State of Madras[20].
It is the duty of the authority who will ensure that the affected party may be
given an opportunity of oral or personal hearing if the context requires
otherwise. However, the above rule of fair hearing requires that the affected
party should be given an opportunity to meet the case against him effectively
and this may also be achieved by providing opportunity to the affected person
by making 'written representation' instead of oral or personal hearing as was
provided in the case of Union of India V. J.P. Mitter[21].
3)Evidence
Evidence
is an important part which is to be brought properly before the Court in the
presence of both the parties and a judicial or quasi judicial authority must
have to act on the evidence produced as in the case of R v. Bodmin and not
merely on any information which the authority may receive otherwise as in the
case of Collector of Central Excise v. Sanwarmal[22].Ordinarily,
no evidence personal or oral should be received at the back of other party and
if any such evidence is recorded, it is duty of the authority that such
evidence must be made available to the other party as in the case of Stafford
v. Minister of Health and in another case of Hira Nath v. Principal.
The principle is not confined to formal evidence but extends to any material
including information regarding previous conviction, upon which the Tribunal
may act, without giving opportunity to the affected party to rebut it. In case
of Keshav
Mill Co. v. Union of India[23]the Supreme
Court was not ready to lay down an inflexible rule that it was not necessary to
show the report of enquiry committee to the affected person. The court made it
clear that whether the report of the enquiry committee should be furnished or
not depends in every individual case on merits of the case. An adjudicating
authority must disclose all evidence and material placed before it in the
course of proceedings and must afford an opportunity to the person against whom
it is sought to be utilised. The object underlying such disclosure is to afford
an opportunity to the person to enable him to prepare his defence, rebut the
evidence relied upon by the complainant against him and put forward his case
before the authority In Dhakeswari Cotton Mills Ltd. v. CIT.[24]
, the Supreme Court set aside the order passed by the Appellate Tribunal
on the ground that it did not disclose some evidence produced by the department
and used against the assessee.
In
Bishambhar
Nath Kohli v. State of U.P.[25] in
revision proceedings, the Custodian General accepted new evidence produced by
one party, but no opportunity was given to the other side to meet with the
same. The Supreme Court held that the principles of natural justice were
violated.
The use of hearer’s report without disclosure to the person
charge-sheeted is like a performance of Hamlet without the Prince of Denmark.”
Of course, the recent trend is that the person has to prima facie satisfy the
court that prejudice has been caused to him by such non-disclosure."
4)Cross
Examination
The
adjudicating authority in a fair hearing is not required only to disclose the
person concerned the evidence or material to be taken against him, but he
should be provided an opportunity to rebut the evidence or material. The
important question before the authority is that the witness should be
cross-examined or not.
In another
case of Kanungo & Co. v. Collector of Customs[26]
the business premises of a person were searched and certain watches were
confiscated by the authority under Sea Customs Act. The said person was not
allowed to cross-examine the persons who gave information to the authority.
There was no violation of the natural justice and the Court held that the
principles of natural justice do not require the authority to allow the person
concerned the right to cross examine the witnesses in the matters of seizure of
goods under the Sea Customs Act. If the person concerned is allowed the right
to cross-examine, it is not necessary to follow the procedure laid down in the
Indian Evidence Act.
In
State of Kerala V. Shaduli[27]
Grocery Dealer, the returns filed by the respondent assessee on the basis
of his books of account appeared to the Sales Tax Officer (STO) to be
incomplete and incorrect, since certain sales appearing in the books of
accounts of a wholesale dealer were not mentioned in the account books of the
respondent. The respondent applied to the STO for opportunity to cross examine
the wholesale dealer which was rejected by him. Holding the decision of the STO
to be illegal, supreme Court held that there respondent could prove the
correctness and completeness of his returns only by showing that the entries in
the books of accounts of the wholesale dealer were false and bogus and this
obviously the responding could not do unless he was given an opportunity to
cross examine wholesale dealer. But in certain circumstances, cross examination
may not be allowed to a person against whom proceedings have been initiated. In
the absence of express provision, the authority or tribunal will consider whether
cross examination is an essential ingredient of natural justice. If such
provision exists, such cross examination cannot be denied.
5)Legal
Representation
An
important question is whether right to be heard includes right to legal
representation? Fairly speaking, the representation through a lawyer in the
administrative adjudication is not considered as an indispensable part of the
fair hearing. But, in certain situations if the right to legal representation
is denied, then it amounts to violation of natural justice. Thus where the case
involves question of law as in case of J.J.
Mody V. State of Bombay and in another case of Krishna Chandra V. Union of India, the denial of legal
representation will amount of violation of natural justice because in such conditions
the party may not be able to understand the question of law effectively and,
therefore, he should be given an opportunity of being heard fairly.
Exceptions
To Audi Alteram Partem:
The word
exception in the context of natural justice is really a misnomer, but in the
below mentioned exclusionary cases, the rule of audi alteram partem is held
inapplicable not by way of an exception to “fair play in action”, but because
nothing unfair can be inferred by not affording an opportunity to present or
meet a case. But such situations where nothing unfair can be inferred by not
affording a fair hearing must be few and exceptional in every civilized
society. The rule of audi alteram partem is held inapplicable not by method for
a special case to “reasonable play in real life”, but since nothing
unjustifiable can be derived by not managing a chance to present a case.
(1)
Statutory Exclusion:
Natural
justice is implied by the Courts when the parent statute under which an action
is being taken by the Administration is silent as to its application. Omission
to mention the right of hearing in the statutory provision does not ipso facto
exclude a hearing to the affected Maneka Gandhi V.. Union of India2,
Karnataka
Public Service Commission V. B.M. Vijay Shankar, Ram Krishna Verma V. State of
U.P. A statute can exclude natural justice either expressly
or by necessary implication. But such a statute may be challenged under Art.14
so it should be justifiable. In Charan Lal Sahu vs UOI (Bhopal Gas
Disaster case) is a classical example of the application of this exception. In
this case the constitutional validity of the Bhopal Gas Disaster (Processing of
Claims) Act, 1985, which had authorized the Central Government to represent all
the victims in matters of compensation award, had been challenged on the ground
that because the Central Government owned 22 percent share in the Union Carbide
Company and as such it was a joint tort feasor and thus there was a conflict
between the interests of the government and the victims. The court negative the
contention and observed that even if the argument was correct the doctrine of
necessity would be applicable to the situation because if the government did
not represent the whole class of gas victims no other sovereign body could so
represent and thus the principles of natural justice were no attracted.
Natural
justice is submitted by the Courts when the parent statutes under which an
action is made by the administration is quiet as to its application. Exclusion
to make reference to one side of hearing in the statutory arrangement does not
reject the hearing of the other party.
(2)
Legislative Function
A
ground on which hearing may be excluded is that the action of the Administrative
in question is legislative and not administrative in character. Usually, an
order of general nature, and not applying to one or a few specified persons, is
regarded as legislative in nature. Legislative action, plenary or subordinate,
is not subject to the rules of natural justice because these rules lay down a
policy without reference to a particular individual. On the same logic,
principles of natural justice can also be excluded by a provision of the
Constitution also. The Indian Constitution excludes the principles of natural
justice in Art. 22, 31(A), (B), (C) and 311(2) as a matter of policy.
Nevertheless, if the legislative exclusion is arbitrary, unreasonable and
unfair, courts may quash such a provision under Art.14 and 21 of the Constitution.
In Charan
Lal Sahu vs. UOI, the constitutional validity of the Bhopal Gas
Disaster (Processing of Claims) Act, 1985 was involved. This legislation
provide 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.
"Emergency
In India, it has been generally acknowledged that in cases of extreme urgency,
where interest of the public would be jeopardizes by the delay or publicity
involved in a hearing, a hearing before condemnation would not be required by
natural justice or in exceptional cases of emergency where prompt action,
preventive or remedial, is needed, the requirement of notice and hearing may be
obviated. Therefore, if the right to be heard will paralyze the process, law
will exclude it.
In Mohinder Singh Gill vs. CEC, whether notice and right to be heard
must been given or not was been laid down before the SC.
In
Firozhpur Constituency Parliamentary Election counting was been going on where
in some segments counting were going on and in some it was over. One candidate
was having a very good lead but before the declaration the very purpose of
surveillance and there is every possibility of the ends of justice being
defeated instead of being served.
The
fact that the in-question administrative action is legislative and not
administrative in nature is one reason why a hearing may be excluded.
Ordinarily, a general command that doesn't apply to a single or small group of
people is considered to be legislative in character.
(3) Impractibility:
Natural
justice can be followed and applied when it is practicable to do so but in a
situation when it is impracticable to apply the principle of natural justice
then it can be excluded. In Bihar School Examination Board vs. Subhash
Chandra, the Board conducted final tenth standard examination. At a
particular centre, where there were more than thousand students, it was alleged
to have mass copying. Even in evaluation, it was prima-facie found that there
was mass copying as most of the answers were same and they received same marks.
For this reason, the Board cancelled the exam without giving any opportunity of
hearing and ordered for fresh examination, whereby all students were directed
to appear for the same. Many of the students approached the Patna HC
challenging it on the ground that before cancellation of exam, no opportunity
of hearing was been given to the students. The HC struck down the decision of
the Board in violation of Audi Alteram Partem. The Board unsatisfied with the
decision of the Court approached the SC. The SC rejected the HC judgment and
held that in this situation, conducting hearing is impossible as thousand
notices have to be issued and everyone must be given an opportunity of hearing,
cross-examination, rebuttal, presenting evidences etc. which is not practicable
at all. So, the SC held that on the ground of impracticability, hearing can be
excluded.
(4) Academic
Evaluation:
Where
nature of authority is purely administrative no right of hearing can be
claimed. In Jawaharlal Nehru University v. B.S. Narwal, B.S Narwal, a
student of JNU was removed from the rolls for unsatisfactory academic
performances without being given any pre decisional hearing. The Supreme Court
held that the very nature of academic adjudication appears to negative any
right of an opportunity to be heard. Therefore, if the competent academic
authorities examine and asses the work of a student over a period of time and
declare his work unsatisfactory, the rules of natural justice may be excluded.
(5) Inter-Disclipinary
Action:
In
Inter- Disciplinary action like suspension etc. there is no requirement to
follow the principle of natural justice. In S.A Khan vs. State of Haryana, Mr. Khan an IPS Officer holding the
post of Deputy Inspector General of Haryana; Haryana Govt., was suspended by
the Haryana Government due to various complaints against him. Thus, he
approached the Supreme Court on the ground of violation of PNJ as he was not
given an opportunity to be heard. The SC held that the suspension being
interimdisciplinary action, there is no requirement to afford hearing. It can
be ordered without affording an opportunity of hearing.
Conclusion
Rule of
natural justice has advanced by human progress. It has not developed from the Indian
Constitution but rather from humankind itself. Each individual has the
privilege to talk and be heard when charges are being put towards the person in
question. The Latin maxim, “Audi Alteram Partem” is the standard of
characteristic equity where each individual gets an opportunity of being heard.
The significance of a proverb itself says no individual will be denounced
unheard. Thus, judgement of a case will be not given in the absence of another
party. There are numerous situations where this rule of natural justice is
barred, and no opportunity is given to the party of being heard. Natural
justice implies that equity ought to be given to both parties in a simple,
reasonable and sensible way. Under the watchful eye of the Court, both the
parties are equivalent and have an equivalent chance to speak and to prove
themselves. Audi alteram partam is a wide concept than what it seems to be. It
is one of the cardinal principles of the rules of natural justice rather it
would be unjustified to think about natural justice without taking into account
the concept of audi alteram partam. It mean right to fair hearing. This phrase
though sounds simple but it embraces in itself the whole story of justice right
from sending notice to post decisional hearing. Though, there are certain
exceptions where this principle is not followed. But then these exceptions also
have to be justified. There has to be a rational behind skipping this very
concept which forms the very basis of the justice.
Reference
BOOK:
1.
Lectures on administrative law - C.K.TAKWANI 2. Lectures on administrative law - Dr.U.P.D.KESARI
WEBSITES:
1.
audi alteram partem: Definition from the
Merriam-Webster Online Dictionary.
2.
Audi alteram partem's entry in the duhaime.org legal
dictionary
3.
e.g.Aeschylus,The Eumenides431, 435.
4.
Imam Abu Dawud. 2008.Sunan Abu Dawud Vol. 3
(Translated to English by Ahmad Hasan). Riyadh: Darussalam,, Hadith No. 3575,
Grade: Hasan 5. Nuclear Tests (Australia c. France), C. I. J., December 20,
1974, p. 265.
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http://umsu.unimelb.edu.au/clubs/political-interest-society/.
6.
http://sa.rochester.edu/sa/acjc/.
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Audi HistoryArchived9 February 2010 at theWayback
Machine. audiusa.com.
8.
August Horch: "Ich baute Autos – Vom
Schmiedelehrling zum Autoindustriellen",
Schützen-Verlag Berlin 1937.
9.
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p.30.ISBN0-8376-0384-6.
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Article Information
THE CONCEPTUAL ANALYSIS OF THE PRINCIPLE AUDI ALTERAM PARTEM AND ITS EVOLUTION FROM THE COMMON LAW
Authors: ANSU EALIAS
- Journal IJLRA
- ISSN 2582-6433
- Published 2023/10/21
- Issue 7
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International Journal for Legal Research and Analysis
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