These slides are regarding Audi Alteram Administrative law is the body of law that governs the activities of administrative agencies of government. Administrative law deals with the decision-making of administrative units of government such as tribunals, boards or commissions in such areas as international trade, manufacturing, taxation, broadcasting, immigration and transport. Administrative law expanded greatly during the twentieth century, as legislative bodies worldwide created more government agencies to regulate the social, economic and political spheres of human interaction.
4. DEFINITION Administrative law deals with the powers and functions of the administrative authorities, the manner in which the powers are to be exercised by them and the remedies that are available to the aggrieved persons when those powers are abused by the authorities. Jain and Jain – Four aspects of Administrative Law. Administrative Law deals with mainly 4 aspects: Composition and the powers of administrative authorities. Fixes the limits of the powers of these authorities. Prescribes the procedure to be followed by these authorities in exercising such powers. Controls these administrative authorities through judicial and other means.
THE PRINCIPLES OF NATURAL JUSTICE Natural justice is a principle that is intended to ensure law with fairness and to secure justice. The Principles of Natural Justice have come out from the need of man to protect himself from the excesses of organized power. The Principles of Natural Justice are considered the basic Human Rights because they attempt to bring justice to the parties naturally. THREE BASIC PILLARS Three core points in the concept of principles of natural justice include: Nemo in propria causa judex, esse debet - No one should be made a judge in his own case, or the rule against bias. Audi alteram partem - Hear the other party, or the rule of fair hearing, or the rule that no one should be condemned unheard. Speaking order or reasoned decision- Speaking order means an order which contains reasons for the decision. No system of law can survive without these three basic pillars.
‘’Audi alteram partum means ‘‘hear the other side’’ or ‘‘no man should be condemned unheard 'or ‘‘both the sides must be heard before passing any order’’. This is the basic requirement of rule of law.
AUDI ALTERAM PARTEM “A party is not to suffer in person or in purse without an opportunity of being heard.’’ It is mainly applicable in the field of administrative action and is regarded as the first principle of civilised jurisprudence. In short, before an order is passed against any person, reasonable opportunity of being heard must be given to him.
The maxim includes two elements • NOTICE. • HEARING.
3. INTRODUCTION
Administrative law is the body of
law that governs the activities of
administrative agencies of
government.
Administrative law deals with the
decision-making of administrative
units of government such as
tribunals, boards or commissions in
such areas as international trade,
manufacturing, taxation,
broadcasting, immigration and
transport.
Administrative law expanded greatly
during the twentieth century, as
legislative bodies worldwide created
more government agencies to
regulate the social, economic and
political spheres of human
interaction.
4. DEFINITION
Administrative law deals
with the powers and
functions of
the administrative
authorities, the manner in
which the powers are to
be exercised by them and
the remedies that are
available to the
aggrieved persons when
those powers are abused by
the authorities.
5. Jain and Jain –
Four aspects of
Administrative
Law.
Administrative Law deals
with mainly 4 aspects:
Composition and the powers of
administrative authorities.
Fixes the limits of the powers
of these authorities.
Prescribes the procedure to be
followed by these authorities
in exercising such powers.
Controls these administrative
authorities through judicial and
other means.
6. THE PRINCIPLES
OF NATURAL
JUSTICE
Natural justice is a
principle that is intended to
ensure law with fairness
and to secure justice.
The Principles of Natural
Justice have come out from
the need of man to protect
himself from the excesses
of organized power.
The Principles of Natural
Justice are considered the
basic Human Rights
because they attempt to
bring justice to the parties
naturally.
7. THREE BASIC PILLARS
Three core points in the concept of principles of
natural justice include:
Nemo in propria causa judex, esse debet - No
one should be made a judge in his own case,
or the rule against bias.
Audi alteram partem - Hear the other party, or
the rule of fair hearing, or the rule that no one
should be condemned unheard.
Speaking order or reasoned decision-
Speaking order means an order which
contains reasons for the decision.
No system of law can survive without these three
basic pillars.
8. AUDI ALTERAM
PARTEM
MEANING
‘’Audi alteram partum means ‘‘hear
the other side’’ or ‘‘no man should
be condemned unheard 'or ‘‘both the
sides must be heard before passing
any order’’.
This is the basic requirement of rule
of law.
10. AUDI
ALTERAM
PARTEM
“A party is not to suffer in
person or in purse without an
opportunity of being heard.’’
It is mainly applicable in
the field of administrative
action and is regarded as the
first principle of civilised
jurisprudence.
In short, before an order is
passed against any person,
reasonable opportunity of being
heard must be given to him.
12. (A) 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.
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.
13. A notice must contain the time, place and date of hearing,
jurisdiction under which the case is filed, the charges, and
proposed action against the person.
Whenever a statute makes it clear that a notice must be issued
to the party and if non compliance or failure to give notice
occurs, this makes the act void.
The notice 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.
14. CASE LAWS
Keshav Mills Co. Ltd. v.
Union of India
(1973 AIR 389)
In this case, the court held that
notice is required to be clear and
unambiguous. If it is ambiguous or
vague, it will not be treated as
reasonable and proper notice.
15. Gupta v.
Union of
India (AIR
1989 SC
1393)
It was held that if a notice
regarding one charge has been
given, the person cannot be
punished for a different charge
for which no notice or
opportunity of being heard was
given to him.
16. V. Kumaran Erady v.
General Manager
(AIR 1994 Ker.118)
In this case, it was held that
disconnection of a telephone
without any valid notice to the
subscriber was violative of the
principles of natural justice.
17. (B) HEARING: -
ORAL OR
PERSONAL
HEARING.
The second ingredient of
Audi alteram partem (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.
18. A) The adjudicating
authority must give
full opportunity to
the affected person
to produce all the
relevant evidence in
support of his case.
19. CASE
LAW
Dhakeswari Cotton Mills v. CIT
(AIR 1955 SC 55)
• The petitioner was denied an
opportunity to produce some
books of account before the
income tax Appellate Tribunal.
The Supreme Court held that
refusal to give an opportunity
to produce evidence in his
favour amounted to a
violation of natural justice.
20. B) The adjudicating authority must
disclose all evidence or materials
placed before it in the course of
proceedings.
21. M.A. Jackson v. Collector of
Customs (1997 4 SCC 7)
A show cause notice was issued under the Customs Act
for alleged short levy of customs duty.
The authority relied on the price mentioned in a
magazine; but a copy of the magazine was not made
available to the petitioner.
The Supreme Court quashed the proceedings on the
ground that the adverse material, if not disclosed,
cannot be used against a person.
22. C) Any material or evidence
adduced by one party
cannot be utilised against
the other party unless the
opportunity to explain,
criticise or rebut the
evidence is given to the
other party.
23. Suresh
Koshy v.
University
of Kerala
(AIR 1970
SC 198)
The Vice- Chancellor had instituted an
inquiry into the charge of use of unfair
means by a student in the examination
and on the basis of the inquiry report,
the student was expelled from the
University.
The expulsion order was challenged on
the ground that a copy of the inquiry
report was not supplied to him. The
Supreme Court held that since a copy
was not specifically asked for by the
student, there was no breach of the
principles of natural justice.
24. D) The adjudicating authority who wants to
utilise an evidence against a person should
disclose it to the person against whom it is to
be utilised and give an opportunity to rebut
the same.
However the right to cross-examination of
the witnesses need not always be given to the
concerned person.
The right to cross-examination of the
witnesses depends upon the facts and
circumstances of each case and the statutory
provisions.
25. State of
Kerala v.
K.T. Shaduli
(1977 2SCC
777)
The returns filed by the respondent
assesse on the basis of his books of
account appeared to the Sales Tax
Officer to be incomplete and
incorrect.
The respondent applied to the Sales
Tax Officer for opportunity to cross-
examine the wholesale dealer which
was rejected by him.
Since the opportunity to cross-
examine the wholesale dealer was
not given to the respondent,
the Supreme Court held that the
decision of the Sales Tax Officer was
illegal.
26. E) Representation through counsel or an
advocate cannot be claimed as a part of
natural justice unless the said right is
conferred by the statute.
Some statutes specifically bar appearance of
lawyers before authorities constituted under
the Act.
When the statute is silent about legal
representation, the matter is left to the
discretion of the authority concerned.
If the issue involves complicated questions of
law and fact the authority should allow the
representation through an advocate.
27. Krishnachand v.
Union of India
( AIR 1974 SC
1589)
In this case, the
Supreme Court held
that if there is no legal
complexity and no oral
testimony is taken,
there is no need to
allow the right to legal
representation.
28. F) If hearing is not given by
the adjudicating authority to
the person concerned and the
principles of natural justice
are violated, the order is void
and it cannot be justified on
the ground that ‘no prejudice
was caused to the petitioner’
or that ‘hearing could not
have made any difference or
that no useful purpose would
not have been served.’
29. Board of High
School v.
Kumari
Chitra(1970 1
SCC 121)
In this case the board cancelled the
examination of the petitioner who had
actually appeared at the examination
on the ground that there was shortage
in attendance at lectures.
But no notice was given to her before
taking action. The order was
challenged as violative of the
principles of natural justice.
On behalf of the Board it was argued
that as the facts were not in dispute, no
useful purpose would have been served
by giving a show cause notice to the
petitioner.
30. • The Supreme Court rejected this argument and held that the
Board was acting in a quasi-judicial capacity and it must
observe the principles of natural justice. In this case, the
principles of natural justice were violated and the order of
cancellation of the examination was set aside.
31. Exceptions
To Audi
Alteram
Partem:
The general rule is that an
administrative authority
to whom judicial or quasi-
judicial power is
conferred must follow the
principles of natural
justice, while it exercises
the power. However ,
certain exceptions are
there and which include:
32. 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.
33. A statute can exclude natural justice either expressly or by necessary
implication. However, such exclusions can be challenged under Art.14 which
means such an exclusion must be always justifiable.
In Charan Lal Sahu v. UOI 1990 1 SCC 613
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.
Here, the court 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 not attracted.
34. 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.
• 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.
35. 3. Impracticability:
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.
36. CASE LAW
Bihar School Examination Board v. Subhas Chandra
(AIR 1970 SC 1269)
In this case, 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.
37. • 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.
38. 4. Academic Evaluation: Where nature of authority is
purely administrative no right of
hearing can be claimed
39. Jawaharlal Nehru University v. B.S. Narwal
1980 AIR 1666
In this case, 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.
40. 5. Inter-Disciplinary Action:
In Inter- Disciplinary action, there is no
requirement to follow the principle of
natural justice. For instance, suspension.
41. S.A Khan v. State of Haryana
AIR 1993 SC 1152
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 interim-disciplinary
action, there is no requirement to afford hearing. It can be
ordered without affording an opportunity of hearing.
42. CONCLUSION
The principle of natural justice has
evolved through civilization.
It has not evolved from the
constitution but from mankind itself.
Every person has the right to speak
and be heard when allegations are
being put towards him or her.
The Latin maxim, Audi Alteram Partem
is the principle of natural justice where
every person gets a chance of being
heard.
43. CONCLUSION
• The meaning of the maxim itself says no person shall be
condemned unheard. Hence, no case or judgment can
be decided without listening to the point of another
party.
• There are many cases where this principle of natural
justice is excluded, and no option is given to the party
to speak.
• Natural justice means that justice should be given to
both the parties in a just, fair and reasonable manner.
Before the court, both the parties are equal and have
an equal opportunity to represent them.
