Principles of Natural Justice

Introduction
The principle of natural justice is a very old concept and it originated at
an early age. The people of Greek and roman were also familiar with this
concept. In the days of Kautilya, Arthashastra and Adam were
acknowledged the concept of natural justice. According to the Bible, in
the case of Eve and Adam, when they ate the fruit of knowledge, they
were forbidden by the god. Before giving the sentence, eve was given a
fair chance to defend himself and the same process was followed in the
case of Adam too.

Later on, the concept of natural justice was accepted by the English
jurist. The word natural justice is derived from the Roman word ‘jus-
naturale’ and ‘lex-naturale’ which planned the principles of natural
justice, natural law and equity.

“Natural justice is a sense of what is wrong and what is right.”

In India, this concept was introduced at an early time. In the case of Mohinder
Singh Gill vs. Chief Election Commissioner, the court held that the concept of
fairness should be in every action whether it is judicial, quasi-judicial,
administrative and or quasi-administrative work.

Purpose of the principle

• To provide equal opportunity of being heard.

• Concept of Fairness.
• To fulfil the gaps and loopholes of the law.
• To protect the Fundamental Rights.
• Basic features of the Constitution.
• No miscarriage of Justice.

The principles of natural justice should be free from bias and parties should be
given fair opportunity to be heard and all the reasons and decision taken by the
court should be informed by the court to the respective parties.
Supreme court said that arriving at a reasonable and justifiable judgement is the
purpose of judicial and administrative bodies. The main purpose of natural justice
is to prevent the act of miscarriage of justice.

A committee i.e. “Ministers Power” gave 3 essentials procedure related to the

principles of natural justice.

1. No one should be a judge in his own matter.

2. No one can be condemned unheard.
3. The party is entitled to know each and every reason and the decision
taken by the authority.

When it can be claimed?

Natural justice can be claimed when acting judicially or quasi-judicial like

panchayat and tribunals etc. as well. It includes the concept of fairness, basic
moral principles and various different kinds of biases and why the natural justice
is required and what all special cases or situation it includes where the principles
of natural justice will not be applicable.

In the case of the Province of Bombay vs. Khushaldas Advani, it was said that
natural justice will be applicable on statutory as it is a basic principle of Natural
justice which leads to fairness and justice.

Effect of function

• Administrative action.
• Civil consequences.
• The doctrine of Legitimate exception.
• Fairness in action.
• Disciplinary proceeding.

In the case of Board of high school vs. Ghanshyam, a student was caught while
cheating in the examination hall and he was debarred due to the act. Supreme
Court held that student cannot file a Public Interest Litigation against the
examination board.

Eurasian equipment and company limited vs. State of West Bengal: Under this
case, all the executive engineers were blacklisted. Supreme Court held that
without giving a valid and reasonable ground you cannot blacklist anyone and
further he should be given a fair opportunity of being heard.

Rules of Natural Justice

1. Nemo Judex in Causa Sua

2. Audi Alteram Partem
3. Reasoned Decision

1. Nemo Judex in Causa Sua

“No one should be a judge in his own case” because it leads to rule of biases. Bias
means an act which leads to unfair activity whether in a conscious or unconscious
stage in relation to the party or a particular case. Therefore, the necessity of this
rule is to make the judge impartial and given judgement on the basis of evidence
recorded as per the case.

Type of Bias

1. Personal Bias.
2. Pecuniary Bias.
3. Subject matter Bias.
4. Departmental Bias.
5. Policy notion Bias.
6. Bias on the account of obstinacy.

Personal bias

Personal bias arises from a relation between the party and deciding authority.
Which lead the deciding authority in a doubtful situation to make an unfair
activity and give judgement in favour of his person. Such equations arise due to
various forms of personal and professional relations.

Pecuniary bias

If any of the judicial body has any kind of financial benefit, how so ever small it
may be will lead to administrative authority to biases.

Subject matter bias

When directly or indirectly the deciding authority is involved in the subject matter
of a particular case.

Departmental bias

Departmental bias is something which is inherent in the administrative process,

and if it is not effectively checked, it may negate the very concept of fairness in
the administrative proceeding.

Policy notion bias

Issues arising out of preconceived policy notion is a very dedicated issue. The
audience sitting over there does not expect judges to sit with a blank sheet of
paper and give a fair trial and decision over the matter.

Bias on the account of the obstinacy

Supreme court has discovered new criteria of biases through the unreasonable
condition. This new category emerged from a case where a judge of Calcutta High
Court upheld his own judgement in appeal. A direct violation of the rules of bias
is done because no judge can sit in appeal against in his own case.

2. Audi Alteram Partem

It simply includes 3 Latin word which basically means that no person can be
condemned or punished by the court without having a fair opportunity of being
heard.
In many jurisdictions, a bulk of cases are left undecided without giving a fair
opportunity of being heard.

The literal meaning of this rule is that both parties should be given a fair chance
to present themselves with their relevant points and a fair trial should be
conducted.

This is an important rule of natural justice and its pure form is not to penalize
anyone without any valid and reasonable ground. Prior notice should be given to
a person so he can prepare to know what all charges are framed against him. It is
also known as a rule of fair hearing. The components of fair hearing are not fixed
or rigid in nature. It varies from case to case and authority to authority.

Components
Issuance of notice– Valid and proper notice should be given to the required
parties of the matter to further proceed with the procedure of fair trial method.
Even if the statute does not include the provision of issue of notice then it will be
given prior to making decisions. The notice should be with regard to the charges
framed against the accused person and proceeding to be held

Right to present the case and evidence– After receiving the notice he must be
given a reasonable time period to prepare and present his case in a real and
effective manner. The refusal should not be done on the unreasonable ground or
due to arbitrary.

Right to Cross Examination– Right of fair hearing includes the right to cross-
examination the statement made by the parties. If tribunals denied the right to
cross-examination then it will violate the principles of natural justice. And all the
necessary copies of documents should be given and failure of that will also
encroach the principle.

In certain exceptional cases, the right to cross-examination can be denied or

rejected. Hari Nath Mishra vs. Rajendra Medical College, under this case a male
student was charged off some indecent behaviour towards a female student. So,
here the right to cross-examination was denied for the male student as it will lead
to embracement for the female student and it will not also lead to violation of
natural justice.

Right of Legal representative– In the process of enquiry, every party has the right
to have a legal representative. Each party will be represented by the legally
trained person and no one can deny. Similarly, the department has the same right
to direct its officer even though there are investigating officer in conducting an
adjudicating proceeding.

Exceptions

▪ During the Emergency period.

▪ In Public interest.
▪ Express statutory provision.
▪ Nature of the case is not of a serious kind.
▪ If it doesn’t affect the status of the individual.

3. Reasoned Decision

Basically, it has 3 grounds on which it relies: -

▪ The aggrieved party has the chance to demonstrate before the appellate
and revisional court that what was the reason which makes the authority to
reject it.
▪ It is a satisfactory part of the party against whom the decision is made.
▪ The responsibility to record reasons works as obstacles against arbitrary
action by the judicial power vested in the executive authority.

Conclusion

The principles of natural justice have been adopted and followed by the judiciary
to protect public rights against the arbitrary decision by the administrative
authority. One can easily see that the rule of natural justice includes the concept
of fairness: they stay alive and support to safeguard the fair dealing.

So, at all the stages of the procedure if any authority is given off the judicial
function is not purely accepted but the main motive of the principal is to prevent
the miscarriage of justice. It is supreme to note that any decision or order which
violates the natural justice will be declared as null and void in nature, hence one
must carry in mind that the principles of natural justice are essential for any
administrative settlement to be held valid.

The principle of natural justice is not confined to restricted walls the applicability
of the principle but depends upon the characteristics of jurisdiction, grant to the
administrative authority and upon the nature of rights affected of the individual.

Presumption of Innocence

Introduction
Justice is never alien to rights. Justice rests on the anvil of equal rights and
liabilities, therefore, in criminal trial rights of both the parties have to be balanced
to meet the ends of justice. Being negligent or biased towards any ones right will
lead to miscarriage of justice. A defendant/accused has the right to be presumed
innocent until proven guilty and this is a central tenet of our criminal justice
system. Though not specifically enshrined in the criminal code of India, but there
are provisions which work on this principle. Section 101 and 102 of the Indian
evidence Act, which assert that any person approaching the court to give its
judgment on any legal right or liability must prove the existence of facts that
he/she asserts. Thus, the burden of proving fact always lies upon the person who
asserts it.
The common law maxim, “ei incumbit probatio qui dicit, non qui negat “(the
burden of proof is on the one who declares, not on one who denies) was confirmed
by the Supreme Court, Burden of proof lies on the party asserting it and never on
the party denying it.

What is Presumption of Innocence?

The presumption of innocence is contained in article 14(2) of the International
Covenant on Civil and Political Rights (ICCPR).
It asserts that an individual is always considered “innocent until proven guilty”.
This was first and foremost laid by English jurist William Blackstone, when he
said that it is better to let 10 guilty escape than let a single one innocent suffer.
The House of Lords in the landmark case of Woolmington vs DPP (1935) held that
presumption of innocence is the golden thread of criminal law and can in no way
be jeopardized. The same was vehemently followed by the Indian Supreme Court
and is a well-established principle of the Indian jurisprudence.
In the case of Noor Aga Khan vs. state of Punjab (2008) it was held by the apex
court that, though not explicitly mentioned in the constitution, presumption of
innocence is nevertheless a potent background to the conception of justice, in
preserving confidence in enduring integrity and security of a legal system
A fundamental element of the right to a fair trial is that every person should be
presumed innocent unless and until proved guilty following a fair trial. This is why
the responsibility falls on the state to prove guilt and to discharge the
presumption of innocence. Due to the presumption of innocence, a person
cannot be compelled to confess guilt or give evidence against him/herself. It is
for the state to produce evidence of guilt, not for the defendant to prove
innocence. In general, therefore, a suspect’s silence should not be used as
evidence of guilt.

Importance of Presumption of Innocence

In the current times we witness that convictions are escaping the very
fundamentals of human rights principles by convicting persons on mere suspicion
rather than proof. The state through its criminal justice system has far reaching
effects as it shows the liberal and democratic approach of the country while
dealing with the vulnerable. In the world’s largest democracy such powers cannot
be unbridled and have to be used cautiously.
It is pertinent to note that the rules relating to burden and standard of proof in
criminal trials are indispensable because they promote individual freedom and
are bulwark against oppression. Reversing the burden of proof renders accused a
presumptive criminal disregarding his individual liberty and dignity and thereby
violating Article 21 which give right to an individual to live with dignity. Wrongful
convictions strip an individual of its dignity and respect in the society.

It is a cardinal principle of criminal jurisprudence as administered in this country

that it is for the prosecution and prosecution alone to prove all the ingredients of
the offence with which the accused has been charged. The accused is not bound
to open his lips or to enter upon his defence unless and until the prosecution has
discharged the burden which lies upon it and satisfactorily proved the guilt of the
accused.

It is furthermore put forth that fair trial would mean a trial in which bias or
prejudice for or against the accused is being eliminated. Erroneous convictions
defeat public interest; guilty may just be unfortunate enough to meet the high
demands of standard of proof. If the courts are to already presume that the
person under trial is a culprit the court will proceed on biases rather than
evidences.

Presumption of innocence is a human right and cannot be thrown away in any

case. Human rights are fundamental to human life which have been recognised
not just on a national level but in an international framework. It has been
established earlier that conventions which are in consonance with the
constitution can be deemed to be incorporated by the state. Henceforth, that
courts while adhering themselves to domestic law may also look at the
international framework, to minimize the violation of rights at its best.

Conclusion
The effect of law has to be always looked by its effect by considering whether a
law is good or bad. Presumption of innocence has today been watered down on
the pretext of public interest and speedy justice. India in the wake of achieving
the goal of deterrence, are making its courts constantly overlooking the rights of
the accused. Special efforts are needed to make the criminal justice system more
effective and by curbing the crimes of the nation, but that has to be done by
keeping in mind the principles of justice and proportionality in mind. State action
can never be arbitrary and has to be always in the interest of justice only. The
court needs to take stronger steps in achieving and reiterating the principle of
presumption of innocence as a fundamental human right and include it more
prominently under Article 21.

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Burden of Proof

Introduction
The laws relating to the Burden of Proof and its related rules are as provided in
the section 101 of the Indian Evidence Act of 1872. This laws clearly states that
until and unless an exception is established by law; the burden of proof will rest
on the person who has asserted a fact or is making any claim. When a person has
proven the existence of a fact then the burden of proof belongs to him.
In a Criminal case, there are always two burdens. The first burden is on the
prosecution to prove at all cost against the defendant while the second burden
lies with the defendant to bring about a convincing and sufficient evidence that
will prove reasonable doubts surrounding the case of the prosecution.

What is the Burden of Proof?

In simple terms, Burden of Proof is the responsibility to prove the fact in a case.
Each party must provide a fact that will either stand for or against the case. The
term Burden of Proof is used to explain two major facts or burdens. The first is
the Burden of production of the burden of “going forward with the evidence” and
the burden of plea or persuasion.
The burden of plea or persuasion is the responsibility that rests on the single party
through the period of the court sittings. The party carrying the burden can only
succeed in its claims once it has absolutely satisfied the “tier of fact”
For one to be presumed innocent in the court of law over a criminal case, the
prosecution is faced with the burden to prove elements of the offense and
disprove all defense excluding defense with affirmation which constitutionally
are not required in the prosecution of the case.

Principles of Burden of Proof

The underlining principles of the Burden of Proof are contained in the concept of
Onus probandi and Factum Probans. In this explanation, Onus (burden) is the
liability and obligation to prove a fact which can shift between parties in the case.
Sections 101, 102 and 103 of the Indian Evidence Act provides the standard laws
that govern the Burden of Proof.

Section 101
This section in its explanation on Burden of Proof states that whoever wants the
court to proffer judgment to a legal case or right based on the availability of facts,
must prove those facts beyond any reasonable doubt.
Case:
Supreme Court in a case between Jarnail and State of Punjab AIR 1996 SC 755
that in all criminal case, the responsibility of proving if the accused had
committed the crime beyond all reasonable doubt rests on the prosecution and
if it fails to establish concrete evidence to shed off the burden, it cannot depend
on the evidence brought by the accused on defense in the case. The prosecution
does not rely on the evidence of the accused to convict the defendant.

Section 102- Burden of Proof of Lies

In a case brought before the court, the burden of proof lies who has the tendency
to fail if no evidence is supplied before the court from either of the parties.
Case:
In a case between Triro and Dev Raj AIR 1993 J&K 14 because of the delay in
constructing the suit, the defendant had prayed the court over a limitation of the
period. The position of the plaintiff was to know the cause of the delay and the
burden of proving if the case was within the given period was on the plaintiff.
Section 103-Burden as to a fact
The burden of proof to a fact rests on that person who desires the court to believe
in the existence of such fact unless a law authorizes the proof of the fact to be
established by any particular individual.

Section 104 - Burden of proving the fact to be proved to make evidence

admissible
This is a burden of proving a fact that is necessary to be proved to allow any
person to establish evidence of any fact and is on the person who intends to
establish such an evidence.

Section 105 — Burden of proving that case of accused comes within

exceptions
When a person is accused of an offense, the fact required to establish the
circumstances surrounding the case excluding General Exceptions in the Indian
Penal Code 45 of 1860, or in any regulations defining it, is upon him while the
court will presume the absence of such a circumstance.

Section 106 - Burden of proving fact specially within the knowledge

When any fact confined to the knowledge of a person, the burden of proving that
fact is on the person.

Section 107 — Burden of proving the death of a person known to have

been alive within thirty years.

In a situation of a controversy whether a person is dead or alive, and it is

established that he had been alive for the last thirty years, the burden of proving
that he is not alive is on the person who states it.
Amendment in Burden of Proof Act, 2013.
Section 114A. Presumption as to the absence of consent in certain
prosecutions of rape
In a prosecution for rape subject to section 376 of the Indian Penal Code, where
sexual intercourse is proved against the accused, if the woman asserts that it was
non-consensual sex, then the court will honor the claims of the woman.
Case:
In Nawab Khan Vs State CRLJ 1990, the court held that the person with which the
sexual intercourse is committed tells the court it was a non-consensual sex, then
the court will assume there was no consent. If the accused claims that there was
a consent, then the burden of proof lies with the accused.

Conclusion
The rule governing the burden of proof is that whoever lays a claim must present
evidence or proof. This rule is subject to the principles that the burden of proof
rests on the party that either asserts a claim or denies it. This implies that
whoever brings a case against another to the court must prove the fact he claims.
In criminal cases, the burden of proof on defendants is based on the evidence
that is established before the court which states the fact that he committed the
crime as adduced. An accused can only be presumed guilty based on the fact
established by the plaintiff to the court in accordance with the Burden of Proof
that rules the case.

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 Fair Comment Under Contempt Laws

Introduction

Contempt of court is an offence of disobedience or disrespect towards a court of

law and its officers in the form of conduct that opposes or challenges the
authority, justice and dignity of the court. Contempt of Court is a constitutional
power vested with the Supreme Court of India.
Article 129 of the Indian Constitution of India states “The Supreme Court of India
shall be a court of record and shall have all the powers of such a court including
the power to punish for contempt of itself”. Superior courts of record have the
powers to punish contempt relating to the judges of those courts and the
proceedings therein. The principal aim of the jurisdiction is to protect the dignity
of the court and the due administration of justice.
The Contempt of Court Act, 1971 under Section 2(c) defines and limits the powers
of certain courts in punishing contempt of courts.

Anything that curtails or impairs the freedom of limits of the judicial proceedings
must of necessity result in hampering of the administration of Law and in
interfering with the due course of justice. This necessarily constitutes contempt
of court. Oswald defines contempt to be constituted by any conduct that tends
to bring the authority and administration of Law into disrespect or disregard or
to interfere with or prejudice parties or their witnesses during litigation. Halsbury
defines contempt as consisting of words spoken or written which obstruct or tend
to obstruct the administration of justice. Black Odgers enunciates that it is
contempt of court to publish words which tend to bring the administration of
Justice into contempt, to prejudice the fair trial of any cause or matter which is
the subject of Civil or Criminal proceeding or in any way to obstruct the cause of
Justice.
In case of India, under Section 2(a) of the Contempt of Courts Act of 1971 defines
contempt of court as civil contempt or criminal contempt, it is generally felt that
the existing law relating to contempt of courts is somewhat uncertain, undefined
and unsatisfactory. The jurisdiction to punish for contempt touches upon two
important fundamental rights of the citizens, namely, the right to personal liberty
and the right to freedom of expression. It was, therefore, considered advisable to
have the entire law on the subject scrutinized by a special committee.

In pursuance of this, a committee was set up in 1961 under the chairmanship of

the late H N Sanyal, the then additional solicitor general. The committee made a
comprehensive examination of the law and problems relating to contempt of
court in the light of the position obtaining in our own country and various foreign
countries. The recommendations, which the committee made, took note of the
importance given to freedom of speech in the Constitution and of the need for
safeguarding the status and dignity of courts and interests of administration of
justice.

The recommendations of the committee have been generally accepted by the

government after considering the view expressed on those recommendations by
the state governments, union territory administrations, the Supreme Court, the
high courts and the judicial commissioners.

Law Point
For the concept of Contempt of Court, the Contempt of Court Act, 1971 was
passed which dealt with such a concept. Article 129 and 215 of the Constitution
of India empowers the Supreme Court and High Court respectively to punish
people for their respective contempt. Section 10 of The Contempt of Courts Act
of 1971 defines the power of the High Court to punish contempts of its
subordinate courts. Power to punish for contempt of court under Articles 129 and
215 is not subject to Article 19(1)(a).
Essentials
The elements generally needed to establish a contempt are:
1. the making of a valid court order,
2. knowledge of the order by respondent,
3. ability of the respondent to render compliance, and
4. wilful disobedience of the order.

Types
According to Lord Hardwick, there is a three-fold classification of Contempt:
1. Scandalizing the court itself.
2. Abusing parties who are concerned in the cause, in the presence of court.
3. Prejudicing the public before the cause is heard.

However, in India contempt of court is of two types:

1. Civil Contempt
Under Section 2(b) of the Contempt of Courts Act of 1971, civil contempt has
been defined as wilful disobedience to any judgment, decree, direction, order,
writ or other process of a court or wilful breach of an undertaking given to a court.

2. Criminal Contempt
Under Section 2(c) of the Contempt of Courts Act of 1971, criminal contempt has
been defined as the publication (whether by words, spoken or written, or by
signs, or by visible representation, or otherwise) of any matter or the doing of any
other act whatsoever which:
(i) Scandalises or tends to scandalise, or lowers or tends to lower the authority
of, any court, or
(ii) Prejudices, or interferes or tends to interfere with the due course of any
judicial proceeding, or
(iii) Interferes or tends to interfere with, or obstructs or tends to obstruct, the
administration of justice in any other manner.
(a) 'High Court' means the high court for a state or a union territory and includes
the court of the judicial commissioner in any union territory.
Object

There can be no doubt that the purpose of contempt jurisdiction is to uphold the
majesty and dignity of law courts and their image in the minds of the public is no
way whittled down. If by contumacious words or writings the common man is led
to lose his respect for the judge acting in the discharge of his judicial duties, then
the confidence reposed in the courts is rudely shaken and the offender needs to
be punished. In essence of law of contempt is the protector of the seat of justice
more than the person sitting of the judge sitting in that seat.

Third Party
A third party to the proceeding may be guilty of contempt of court if they have a
part to play in the offence. In LED Builders Pty Ltd v Eagles Homes Pty Ltd ([1999]
FCA 1213) Lindgren J stated:
"It is not necessary to show that a person who has aided and abetted a contempt
of court was served with the order breached. It is necessary to show only that the
person sought to be made liable knew of the order."

Limitation
The Limitation period for actions of contempt has been discussed under Section
20 of the Contempt of Courts Act of 1971 and is a period of one year from the
date on which the contempt is alleged to have been committed.