ALIGARH MUSLIM UNIVERSITY

CENTRE JANGIPUR MURSHIDABAD

Session: 2019-20

TOPIC

RULE OF FAIR HEARING: A SOCIO-LEGAL ANALYSIS

SUBJECT

ADMINISTRATIVE LAW-I

Submitted to Submitted by
Dr. Masood Ahmad Mehfooz Alam
Assistant Professor, Faculty of Law B.A.LL.B. (Hons) 6th Semester
AMU, Centre Jangipur Murshidabad 17 BALLB-27
GI-6617
 CERTIFICATE

This is to certify that Mehfooz Alam of B.A.LL.B. (Hons) VIth Semester of Aligarh Muslim
University Centre Murshidabad has completed his assignment of Administrative Law on the topic
“Rule of Fair Hearing: A Socio-Legal Analysis” under guidance of Dr. Masood Ahmad.

Date: 17/04/2020
Sign:
 ACKNOWLEDGEMENTS

I, Mehfooz Alam would like to express my special thanks of gratitude to my teacher Dr. Masood
Ahmad, who gave me the golden opportunity to do this assignment on the topic “Rule of Fair
Hearing: A Socio-Legal Analysis” which also helped me in doing a lot of research. I would also
like to thank my friends who helped me a lot in finalizing this assignment. Last but not the least I
would like to thank almighty for the constant blessing on me.

Mehfooz Alam
 CONTENTS

Page No.

1. INTRODUCTION…………………………………………………………………………….1

2. RIGHT TO FAIR HEARING…………………………………………………………………..2

3. PROCEDURAL JUSTICE……………………………………………………………………...4

4. PRINCIPLE OF NATURAL JUSTICE IN INDIA…………………………………………………5

4.1 NATURAL JUSTICE UNDER ARTICLE 14………………………………………………...6
4.2 NATURAL JUSTICE UNDER ARTICLE 21………………………………………………...8

5. CONCLUSION……………………………………………………………………………...11

6. BIBLIOGRAPHY…………………………………………………………………………...13
1. INTRODUCTION

In current administration, greater administration is paid to the judicial review of

administrative action. The judicial review of administration is intended to deal with general
principles governing administrative action, orders, decision. The Administrative actions
are linked directly to adjudication and these administrative adjudications can be defined as
Judicial decision that is derived from the existence and application of enabling provision,
which the statutory provision is where the legislature delegates powers to a person or body.
The exercise of such delegated powers are based upon the assumption that, an individual
or a certain group so charged uses its discretion in wielding such powers. Sometimes, the
administrative adjudication affects the rights of an individual citizen. where the common
law principles/rules of natural justice requires that an individual who is affected by a
decision shall be given a fair hearing, and that he/she shall be informed of the case against
him, given an opportunity to prepare and present his/her case. The Principle or the rule of
bias has two aspects in its side; An adjudicator must not have any direct or any kind of
financial interest in the outcome of proceedings done; the adjudicator must not be
reasonably suspected to show any kind of bias. Hence, a tribunal is a body which discharges
certain judicial functions, in that sense not only that is occasionally taking decisions as to
individuals rights, but which is specially set up for the purpose of adjudication. Therefore,
these in public administration or in constitutional or administrative law should be aware of
the practice of principles of Natural Justice.

The principle of ‘audi alteram partem’ is the basic concept of the principle of natural
justice. The omnipotency 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. Its application depends upon the factual matrix to
improve administrative efficiency, expediency and to mete out justice. The procedure
adopted must be just and fair. The expression audi alteram partem simply implies that a
person must be given an opportunity to defend himself. This principle is a sine qua non of
every civilized society. Corollary deduced from this rule is qui aliquid statuerit, parte
inaudita altera aeuquum licet dixerit, haud aequum facerit i.e. he who shall decide

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 anything without the other side having been heard although he may have said what is right
will not have done what is right. The rule of fair hearing is a code of procedure, and hence
covers every stage through which an administrative adjudication passes, starting from
notice to final determination.

2. RIGHT TO FAIR HEARING

It is fundamental to fair procedure that during a fair hearing both sides should be heard.
This right to fair hearing requires that individuals are not penalized by certain decisions
which tend to affect their rights or certain legitimate expectations. Besides promoting
Associate in Nursing individual’s liberties, the correct to a way hearing has conjointly been
employed by Courts as a base on that to make up truthful body procedure. it's currently
well established that it's not the character of the general public authority that matters
however the character of the ability exercised. However, in the United Kingdom prior to
Ridge v. Baldwin1, the scope of a right to a fair hearing was severely restricted by case law
following Cooper v. Wandsworth Board of Works2. This was seen in cases such as Local
Government Board v. Arlidge3 and R. v. Leman Street Police Station Inspector4. In R. v.
Electricity Commissioners5, Lord Atkin observed that “the right only applied where
decision-makers had the duty to act judicially”. In natural justice, this dictum generally
means that a duty to act judicially was not to be inferred merely from the impact of a
decision on the rights of subjects were such a duty would arise only if there was express
obligation to follow a judicial-type procedure in arriving at the decision.

In the case of Ridge v. Baldwin6, It was stated that, the authorities had extensively and
attacked the problem at its root by demonstrating how this term of judicial has to be
misinterpreted as requiring. This removing of earlier misconception meaning Judicial is
meant to have given the flexibility to the judiciary for it needed to involve and intervene in

1
(1964) A.C. 40 2.
2
(1863) 14 CB (NS) 180.
3
(1915) AC 120.
4
(1975) 62 Cr App R 53.
5
(1924) 1 K.B. 171.
6
Id at 1.

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 all the cases of judicial review. It is the mere fact that the decision makers are conferred
with wide discretion by law and is not a reason enough for the requirements of natural
justice.

In Ahmed v. H.M. Treasury7, the treasury has exercised certain powers to freeze the
appellants by financial assets and certain economic resources on the ground that it has
reasonably suspected to be that appellants were or might be certain persons who had
willingly committed or facilitated in the commission of terrorism. The Supreme Court of
United Kingdom has held that, since the Al-qaida order has made no provision for basic
and procedural fairness, it has effectively deprived the rights of people and their
fundamental rights and declared ultra vires. There has been a fixed penalty scheme in order
to penalize carriers for bringing Clandestine entrants into the U.K. which has been held to
be criminal, since the objective of the scheme was to deter dishonesty and carelessness.
This is primarily applicable to any judicial proceedings which may further be seen as a
requirement that any Judgment shall be pronounced publicly and that all the circumstances
of each case should be investigated. It has been held that the Commission is to be
inapplicable on the grounds that there has been no determination of the applicants’ civil
rights and obligations regarding immigration and deportation, entitlement to tax benefits,
the payment of discretionary grants etc and the revocation of a licence by the Parole Board.
It has been stated that it is not enough to protect procedural process, and only with the
development of even more sophisticated common law along with the protection of
procedural due process which may extend further into the administrative machine. The
common law does not try to impose a general duty where to actually give certain reason
for certain decisions, but a good decision-maker must always give a reasoned judgment so
that in order to enable an affected individual he has to decide whether to appeal it or not.
Article 6(1) of the European Convention on Human Rights, having legal effect under the
Human Rights Act, 1998, is now supplementing the common law of procedural justice in
many of the administrative cases, even though this Article was originally limited to certain
judicial determination of private law matters. This always provides for a fair and for public

7
(2010) UKSC 2.

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 hearing by an independent and most impartial tribunal which has to be established by law.
The judges have to be developed and continuing to develop with certain techniques that
later will ensure that the Conventions are always flexibly applied. Administrators should
be certainly tempted to regard certain procedural restrictions, which were invented by
lawyers, regarding as an obstacle to efficiency. It is always true that the rule of natural
justice restricts the freedom of administrative action and that their observance costs certain
amount of time and money. But time and money are more likely to be well spent if they
tend to reduce friction in the machinery of government, and it is more likely because they
are essentially rules for upholding fairness and to reduce grievances that the rules of natural
justice can be said to promote efficiency. The courts do not let them run riot, and keep in
touch with the standards of good administration. Any decision which is made without bias,
and with prior and proper consideration of the views of those affected by it will also be of
better quality. Justice and efficiency go hand in hand.

3. PROCEDURAL JUSTICE

By developing the principle relating to natural justice, the Courts have already devised a
kind of code of fair administrative procedure. They can control the substance of what public
authorities do by means of certain rules which are relating to reasonableness, improper
purposes. The principles of natural justice, can control the procedure by which they can do
it. They are entitled to take this further step, thereby trying to impose a particular technique
of procedure on government departments and statutory authorities generally. They have
provided doctrines which considered to be an essential part of any system of administrative
justice. Natural justice actually plays in process of law in the Constitution. It has a wide
application in various areas in administrative discretionary power. Wider the powers in the
state, the extensive discretion it confers. It is always possible for them to require to be
exercised in a procedurally fair manner. Procedure is not considered a matter of secondary
importance. As these governmental powers grow more in an enormous way, this procedural
fairness is rendered tolerably. These legislation controls the large extent of expropriation
without any compensation. Procedural fairness is considered to be regularly the
indispensable essence of all kinds of liberty. Many substantive laws have been endured and
sometimes impartially applied. This history of liberty has to be of procedural safeguards.

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 This Natural justice is considered to be a well-defined concept which comprises of two
fundamental rules of fair procedure. They are-
• That a man may not be a judge in his own cause
• That a man’s defence must always be fairly heard

There are broad and narrow aspects to consider this issue. The narrow aspect consists the
rules of natural justice which are merely considered to be a branch of principles of ultra
vires. Violation of natural justice is to be classified as in one of the varieties of wrong
procedure, or abuse of power. Spackman v. Plumstead District Board of Works8, “There
would be no decision taken within the meaning of the statute if there be anything of those
things done contrary to the essence of natural justice”. Thus, violating natural justice will
make this decision taken void, and considered ultra vires. The rules of natural justice thus
operate as an implied mandatory requirement, which has non-observance of which
invalidates the exercise of this power. When the special powers to take action or to decide
disputes are vested in administrative bodies there is a legal procedure which can never be
shaken off. The judges have long been concerned of this problem. Rules of common law,
became in effect presumptions which is to be used in the interpretation of statutes, which
are developed and refined for the rules of natural justice over a period of time. They have
to be flexibly applied and their precise content depends on these circumstances.

4. PRINCIPLE OF NATURAL JUSTICE IN INDIA

In the Constitution of India, nowhere the expression Natural Justice is used. However,
golden thread of natural justice sagaciously passed through the body of Indian constitution.
Preamble of the constitution includes the words, ‘Justice Social, Economic and political’
liberty of thought, belief, worship... And equality of status and of opportunity, which not
only ensures fairness in social and economic activities of the people but also acts as shield
to individual’s liberty against the arbitrary action which is the base for principles of Natural
Justice.

8
1863 143 ER 414.

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4.1 NATURAL JUSTICE UNDER ARTICLE 14
Apart from preamble Article 14 of the Constitution ensures equality before law and equal
protection of law to the citizen of India. Art 14 which strike at the root of arbitrariness and
Art 21 guarantees right to life and liberty which is the fundamental provision to protect
liberty and ensure life with dignity. Art 22 guarantees natural justice and provision of fair
hearing to the arrested person. Directive principles of state Policy specially Art 39-A takes
care of social, economic, and politically backward sections of people and to accomplish
this object i.e. this part ensure free legal aid to indigent or disabled persons, and Art 311 of
the constitution ensures constitutional protection to civil servants. Furthermore Art 32, 226,
and 136 provides constitutional remedies in cases violation of any of the fundamental rights
including principles of natural justice. With this brief introduction author undertakes to
analyze some of the important provision containing some elements of Principle of Natural
Justice.

Article 14: as we know that this Article guarantees equality before law and equal protection
of law. It bars discrimination and prohibits both discriminatory laws and administrative
action. Art 14 is now proving to be bulwark against any arbitrary or discriminatory state
action. The horizons of equality as embodied in Art 14 have been expanding as a result of
the judicial pronouncements and Art 14 has now come to have a highly activist magnitude.
It laid down general preposition that all persons in similar circumstance shall be treated
alike both in privileges and liabilities imposed.

Article 14 manifests in the form of following propositions:

(i) A law conferring unguided and unrestricted power on an authority is bad for being
arbitrary and discriminatory.
(ii) It illegalizes discrimination in the actual exercise of any discretionary power.
(iii) It strikes at arbitrariness in administrative action and ensures fairness and equality
of treatment.

In some cases, the Courts insisted, with a view to control arbitrary action on the part of the
administration, that the person adversely affected by administrative action be given the

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 right of being heard before the administrative body passes an order against him. It is
believed that such a procedural safeguard may minimize the chance of the Administrative
authority passing an arbitrary order. Thus, the Supreme Court has extracted from Art. 14
the principle that natural justice is an integral part of administrative process.

Art. 14 guarantee a right of hearing to the person adversely affected by an administrative

order. In Delhi Transport Corporation v. DTC Mazdoor Union9, SC held that “the audi
alteram partem rule, in essence, enforce the equality clause in Art 14 and it is applicable
not only to quasi-judicial bodies but also to administrative order adversely affecting the
party in question unless the rule has been excluded by the Act in question.” Similarly in
Maneka Gandhi v. Union of India10 SC opined that Art 14 is an authority for the proposition
that the principles of natural justice are an integral part of the guarantee of equality assured
by Art. 14 an order depriving a person of his civil right passed without affording him an
opportunity of being heard suffers from the vice of violation of natural justice.

There are several instances where Art 14 of the Constitution is invoked to protect individual
from the violation of natural justice principles, in Central Inland Water Transport
Corporation Ltd v. Briojo Nath11 in this case a government company made a service rule
authorizing it to terminate the service of permanent employee by merely giving him a three
months’ notice or salary in lieu of notice. The rule was declared to be invalid as being
violative of Art. 14 on the ground that it was unconstitutional. The rule in question
constituted a part of the employment contract between the corporation and its employees.
The Court ruled that it would not enforce, and would strike down, an unfair and
unreasonable clause in a contract entered into between parties who were not equal in
bargaining power. This was in conformity with the mandate of the “great equality clause
in Art. 14.”

The Court emphasized that the judicial concept of Art. 14 has progressed “from a
prohibition against discriminatory class legislation to an invalidating actor for any

9
AIR 1999 SC 564.
10
AIR 1978 SC 597.
11
AIR 1986 SC 1571.

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 discriminatory or arbitrary state action.” The Court also emphasized that the rule was “both
arbitrary and unreasonable” and “as it also wholly ignored and set aside the audi alterum
partum rule” violated Art. 14. This is of the view that “the principle of natural justice has
now come to be recognized as being a part of the constitutional guarantee contained in Art.
14.” The rule in question was “both arbitrary and unreasonable,” and it also wholly ignored
and set aside the audi alterm partum rule and, thus, it violated Art 14.

In Cantonment Board, Dinapore v. Taramani12 in this case the Commanding-in-chief of

the cantonment board cancelled the board’s resolution after giving it a hearing but not to
the respondent to whom the permission had been given. The Supreme Court ruled that
Commanding-in-chief ought to have given a hearing to the respondent as well before
cancelling the permission given by the board. The Court observed: audi alterm partum is
a part of Art. 14 of the Constitution”. The real affected party in fact was the party being
ultimately affected by cancellation of the Board’s resolution. Because of Art.14 “no order
shall be passed at the back of a person, prejudicial in nature to him, when it entails civil
consequences.” This is how Art 14 of the Constitution holds element of Natural justice
into it.

4.2 NATURAL JUSTICE UNDER ARTICLE 21

Article 21 lays down that no person shall be deprived of his life or personal liberty except,
according to ‘procedure established by law’. The most important word under this Article
is ‘procedure established by law’ the question arises whether these words can be read as
rules of natural justice. i.e. whether ‘law’ under Art 21 can be read as principles of natural
justice? To this question The Supreme Court ruled by majority that the word ‘law’ in Art.
21 could not be read as rules of natural justice. These rules (natural justice principles) were
vague and indefinite and the constitution could not be read as laying down a vague
standard. Nowhere in the constitution was the word ‘law’ used in the sense of abstract law
or natural justice.

12
AIR 1995 SC 61.

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 The word ‘law’ was used in the sense of state (lex) made law and not natural law (jus). The
expression ‘procedure established by law’ would therefore mean the procedure as laid
down in an enacted law. On the other hand, Fazal Ali, J., disagreeing with the majority
view, held that the principle of natural justice that ‘no one shall be condemned unheard’
was part of general law of the land and the same should accordingly be read into Art 21.
However, later on majority opinion of A.K. Gopalan13 was discarded; this is because right
to life does not mean mere animal existence. This right cannot be allowed to violate by
law, which is wholly unreasonable, such law must be reasonable, fair and just. These
terminologies are similar in content that of ‘due process’ clause of American constitution.
Accordingly such law must prove substantive reasonableness as well as procedural
reasonableness, later one requires such procedure should be ‘fair’, fairness requires
reasonable notice, reasonable opportunity of hearing, legal representation, reasons for
decision, etc. which are the fundamental component of natural justice.

In Maneka Gandhi v. Union of India14, SC by realizing the implications of Gopalan during

1975 emergency took ‘U’ turn and held that “Art 21 would no longer mean that law could
prescribe some semblance of procedure however arbitrary or fanciful, to deprive a person
of his personal liberty. It now means that the procedure must satisfy certain requisites in
the sense of being fair and reasonable. The procedure “cannot be arbitrary, unfair or
unreasonable”. The concept of reasonableness must be projected in the procedure
contemplated by Art.21. The Court has now assumed the power to adjudge the fairness and
justness of procedure established by law to deprive a person of his personal liberty. The
Court has reached this conclusion by holding that Arts. 21, 19 and 14 are mutually
exclusive, but are inter-linked.

Bhagawati, J., “the principle of reasonableness which legally as well as philosophically is

an essential element of equality or non-arbitrariness pervades art 14 like a brooding
omnipresence”. Thus, the procedure in Art. 21 “must be right, just and fair” and not
arbitrary, fanciful or oppressive, otherwise, it would be no procedure at all and the

13
AIR 1950 SC 27.
14
Id at 10.

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 requirement of Art. 21 would not be satisfied. In the same case Iyer, J., opined procedure
in Art. 21, means fair, not formal, procedure; ‘law’ is reasonable law and not any enacted
piece. This makes the words “procedure established by law” by and large synonymous with
the ‘procedural due process’ in the U.S.A. this makes the right of hearing a component part
of natural justice. Accordingly, as result of this epoch-making judgment in Maneka
Gandhi15 case Court came to conclusion that ‘as the right to travel abroad falls under Art.
21, natural justice must be applied while exercising the power of impounding a passport
under the passport Act. Although the passport Act does not expressly provide for the
requirement of hearing before a passport is impounded, yet the same has to be implied
therein’.

Supreme Court of India knowing the importance of ‘fair trial’ by liberal interpretation of
Art. 21, made several provisions for the protection of accused and provided adequate
safeguards to defend his case. SC is of the opinion that conducting a fair trial for those who
are accused of criminal offences is the cornerstone of democracy. Conducting a fair trial is
beneficial both to the accused as well as to the society. A conviction resulting from an
unfair trial is contrary to our concept of justice.

The Supreme Court has taken a gigantic innovative step forward in humanizing the
administration of criminal justice by suggesting that free legal aid be provided by the State
to poor prisoners facing a prison sentence. When an accused has been sentenced by a Court,
but he is entitled to appeal against the verdict, he can claim legal aid: if he is indigent and
is not able to afford the counsel, the State must provide a counsel to him. The Court has
emphasized that the lawyer’s services continued an ingredient of fair procedure to a
prisoner who is seeking his liberation through the Court’s procedure, Bhagwati, J., has
observed in Hussainara Khatoon16 case.

“Now, a procedure which does not make available legal service to an accused person who
is too poor to afford a lawyer and who would, therefore, have to go through the trial without

15
Id at 10.
16
AIR 1979 SC 1369.

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 legal assistance, cannot possibly be regarded as ‘reasonable, fair and just”. Accordingly, in
India free-legal aid to indigent or disabled person is considered to be essential component
of Natural Justice. To ensure free legal aid to citizen of India Art 39A is inserted in part IV
of the constitution which states that, The State shall secure that the operation of the legal
system promotes justice, on a basis of equal opportunity, and shall, in particular, provide
free legal aid, by suitable legislation or schemes or in any other way, to ensure that
opportunities for securing justice are not denied to any citizen by reason of economic or
other disabilities. Accordingly, sufficient safeguard has been provided under Indian
Constitution to get Legal representation.

5. CONCLUSION
In a democratic country, where the administrative law contains a very important part of
rules and principles, the three fundamental principles/rules of natural justice that should be
adhered to by an administrative tribunal includes-
(a) No man should act as a judge in his own cause.
(b) Both sides to a dispute should be heard.
(c) The rule against bias should be complied with.

It is very important to note that any of the decision which if violates the natural justice
would be found on the face null and void, and hence one must always keep in mind that
the doctrine of natural justice is very important for any administrative decision to be valid.
It must also be recollected that every right to fair hearing and a single judge not adjudicating
over a matter in which he has an interest. The extent and application of the rules under
principles of natural justice cannot be imprisoned with a rigid formula. The application
under the doctrine depends on the nature of the jurisdiction which are conferred on the
administrative authority and relies upon the character of the rights of the person affected.
Hence, fairness must be present in public administration.

The recommendations to ensure natural justice in the respect of fair hearing are-
• There should be an equality of arms between the parties to a fair proceeding,
whether they be administrative, civil, criminal, or military or any other

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• There should be equality for all persons before any kind of judicial body without
any distinction whatsoever as in regards race, colour, age, religion, creed, language,
political or other convictions, national or social origin, means, disability, ethnic
origin, sex, gender, birth, status or other circumstances;

• There should be equality of access by both women and men to any judicial bodies
and there should be equality before the law in any kind of legal proceedings;

• There should be respect for the inherent dignity of all human persons, especially of
the women who are participating in legal proceedings and as complainants,
witnesses, victims or accused;

• There should be adequate opportunity to prepare any case, to present arguments and
for evidence and to challenge or to respond to opposing arguments or any kind of
evidence;

• There should be an entitlement to consult and be represented by a legal

representative or other qualified persons or chosen by the party at all stages of the
proceedings;

• There should be an entitlement to the assistance of an interpreter in case if he or she

cannot understand or to speak the language used in or by the judicial body;

• There should be an entitlement to have a party’s rights and all other obligations
which is affected only by a decision which is based solely on all evidence presented
to the judicial body;

• There should be an entitlement to an appeal or to any higher judicial body.

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6. BIBLIOGRAPHY

BOOKS
1. MP JAIN, Indian Constitutional Law, 7th edn.
2. H.Street and R Brazier: Constitutional and Administrative Law: Middlesex,
Penguin Boos Ltd., 1983.

WEBSITES
1. https://www.manupatrafast.com/pers/Personalized.aspx

2. http://www.legalservicesindia.com/article/1860/Audi-Alterem-Partem-Right-to-fair-
hearing.html
3. https://ezproxy.tiss.edu:2055/action/showAdvancedSearch?acc=on

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