1

Introduction to Audi Alteram Partem: An Attribute of Natural Justice

Introduction

Procedural fairness is an important feature of rule of law. The basic postulates of procedural
fairness are impartiality in decision making and fair hearing. As discussed in another lecture,
impartiality can be ensured by freedom from bias- personal, pecuniary, subject-matter,
department and policy matter bias. While the concept of fair hearing is premised on equal
opportunity of hearing the seeds of which lie in equal opportunity for representation. No one can
be condemned unheard. Denial of equal opportunities in administrative, judicial and
quasi-judicial proceedings may vitiate the legitimacy of the proceedings. Therefore, it is a
fundamental rule to ensure that both the parties are heard: Audi Alteram Partem, means ‘hear the
other side’ or ‘both the parties must be heard’ or ‘no one can be condemned unheard’.  A proper
hearing will always afford opportunity to those who are parties in the matter, for correcting or
contradicting anything prejudicial to their view. According to Lord Denning in Kanda v. The
Government of Federation of Malaya (1962), “if the right to be heard is to be a real right which
is worth anything, it must carry with it a right in the accused man to know the case which is
made against him. He must know what evidence has been given and what statements have been
made affecting him; and then he must be given a fair opportunity to correct or contradict them.”

Absence of opportunity of hearing to one party may also result in apparent assumption of bias or
prejudice of adjudicatory authority towards another party affecting unbiased hearing. The same
approach was emphasized upon by the Supreme Court in Union Carbide Corporation v. Union of
India (1991) 4 SCC 584. To quote, “where there is violation of natural justice, no resultant or
independent prejudice need be shown, as the denial of natural justice is, in itself, sufficient
prejudice and it is no answer to say that even with observance of natural justice the same
conclusion would have been reached”.

Moreover, the right to fair hearing has been recognized as a foundation of fair administrative
procedure, akin to ‘due process of law’ as given under the U.S. Constitution. It implies the
opportunity of hearing must be effective and adequate.
 2

Elaborating the attributes of fair, effective and adequate hearing, Justice Venkataraman Aiyar in
Union of India v. T.R. Verma AIR 1957 SC 882 observed:

“Rules of natural justice required that a party should have the opportunity of adducing all
relevant evidence on which he relies, that the evidence of the opponent should be taken in
his presence and that he should be given the opportunity of cross- examining the
witnesses, examined by the party and that no materials should be relied on against him
without his being given an opportunity of examining them”.

The basic idea underlying the above observation of the Supreme Court is that the affected party
should be acquainted with all the material, evidence and documents, on which the adjudicatory
authority may rely. The party should have adequate opportunity to challenge the validity and
authenticity of such evidence for rebuttal. The authority should ensure that all the evidentiary
material be it person or documents, must be made available to the opposite party before relying
upon.

Explaining the gamut of applicability of the ‘hear the other party’ rule, the Supreme Court in
National Textile Workers Union v. P.R. Ramakrishnan AIR 1983 SC 75 held that the Audi
Alteram Partem is one of the basic principles of natural justice. This rule is applied in
quasi-judicial or even in administrative proceedings involving adverse civil consequences. It is
also applicable in judicial proceedings like a petition for winding up a company where the
workers would have a fortiori interest to be heard as appointment of liquidator may adversely
affect the interests of the workers. Denial of opportunity to the workers in such a case would be
violative of natural justice. Omission to comply with the requirements of the rule of Audi
Alteram Partem may vitiate a decision. The forthcoming discussion deals with different aspects
of Audi Alteram Partem:

⮚ Who is Entitled to Sue or Challenge the Legitimacy of Proceedings?

⮚ Right to Know the Case of Opposite Party
⮚ Limits to the Right to Access Adverse Material
⮚ Closed Material Procedure

Who is Entitled to Sue or Challenge the Legitimacy of Proceedings?

 3

Denial of opportunity of being heard is a wrong caused to a person and such a person being
aggrieved may challenge the legitimacy of proceedings on the same ground. It is basically the
aggrieved party which can challenge the procedure. None other can contend or raise the plea of
denial of the opportunity of being heard unless the biasness of the adjudicatory authority
compromises the public interest. The judgment in Ridge v. Baldwin (1963) 3 WLR 935, is a
landmark in the context of the rule of fair hearing. The appellant was a chief constable and he
was dismissed by the Watch Committee under Section 191(4) of the Municipal Corporation Act,
1882. The decision of dismissal was taken in his absence and he was not provided a charge sheet
or notice of the proposed meeting of the Watch Committee. The appellant commenced an action
against the Watch Committee claiming that the dismissal order was void. The Court of Appeal
dismissed the action and held that the Watch Committee was not bound to observe the principles
of natural justice. In further appeal, the House of Lords reversed the judgment of the Court of
Appeal and held dismissal as null and void. It was held that the Watch Committee was conferred
a power by virtue of Section 191(4) of the Municipal Act, 1885 to dismiss a constable. However,
it was bound to observe the principles of natural justice. The applicant was neither issued the
charge sheet nor informed about the grounds of proceeding against him. He had not been given a
fair opportunity to defend himself.   

Likewise in R v. Hendon Rural District Council ex p Chorley (1933) 2 KB 696, it was held that
if a biased licensing authority grants an application, this is a wrong done not to the applicant but
to other interested parties and to the public interest generally. In such a case, the court is
authorized to grant adequate remedy.

In Indian context, the matter of State of Orissa v. Dr. Mrs. Bina Pani Dey AIR 1967 SC 1269, is
a classical example of application of Audi Alteram Partem. The petitioner in this matter was a
lady doctor in government employment. She had stated her date of birth as April 10, 1910 at the
time of joining service. Subsequently, the Government gathered some information about her
misstatement regarding date of birth as April 4, 1907. An inquiry was appointed and on the basis
of the inquiry report confirming April 4, 1907 as the correct date of birth, her order for
compulsory retirement was issued. The petitioner challenged the order of compulsory retirement
in the High Court which was upheld. Later the State filed an appeal to the Supreme Court which
was upheld by the Supreme Court and it was observed that though the order was an
 4

administrative order in nature yet it involved civil consequences. Such orders must be in
consonance with the principles of natural justice. The respondent deserved an opportunity to
adduce all evidence in support of her case. The absence of compliance to the principles of natural
justice turned the order of compulsory retirement as null and void. The Supreme Court further
observed that the expression ‘civil consequence’ covers a wide range of infraction. It implies
infraction of property and personal rights, civil liberties, material deprivation and non-pecuniary
damages as well as a matter of fact, everything that affects a person in his civil life. Similarly, in
Sarjoo Prasad v. The General Manager AIR 1981 SC 1481, the employer altered the date of birth
of any employee after having once accepted it without giving an opportunity to the employee
which was held in violation of natural justice.  The principles of natural justice have also been
applied in the matters concerning use of where the candidates using unfair means in the
examinations were caught. The matters were reported to the examination committee for action
and on the recommendation of the committee, the examination result of the respondent was
cancelled and the respondent was debarred from appearing in the examination for next three
years. Hence, the examination committee, despite the fact that it was empowered by the statutes
to recommend the above penalty, the recommendation of the examination committee was
quashed as no opportunity was afforded to the candidate. The Supreme Court in Board of High
School v. Ghanshyam AIR 1961 SC 1110 observed that the examination committee discharged
the functions of quasi-judicial nature and it was necessary to provide an opportunity of being
heard to another party. Since no opportunity was made available to the candidate, therefore, the
decision of the committee cancelling the result of exams and debarring him for next three years
from appearing in examination was declared in contradiction with the principles of natural
justice. The same approach was followed by the Rajasthan High Court in Lobo v. Rajasthan
University AIR 1981 Raj 69. The cancellation of examination results by the Standing
Examination Committee was set aside by the court on ground of failure of the committee to
provide an opportunity to the candidate for hearing. Similarly, in Master Bibhu Kapoor v. CISC
Examination AIR 1985 Del 142, the answers of the appellant were held similar to another
student. But since the appellant was not served an opportunity of hearing and neither the
examiners were examined. The penalty was imposed merely on the ground of suspicion which
was struck down by the Court on the ground of violation of the principles of natural justice.
 5

Subsequently, the Supreme Court in V.P. Ahuja v. State of Punjab AIR 2000 SC 1080, clarified
that even the person working on probation or a temporary servant also needs to be given an
opportunity of being heard. The services of such individuals cannot be terminated arbitrarily and
in a punitive manner without fulfilling the requirements of natural justice.

Right to Know the Case of Opposite Party

A proper hearing always includes a fair to the stakeholders who are parties in the matter for
correcting or contradicting anything prejudicial to their view. In Kanda v. The Government of
Federation of Malaya (1962) AC 322, a police officer was dismissed in Malaya, after a hearing
before an adjudicating officer. The adjudicating officer had a report of a board of inquiry with
him in which the charges of misconduct were made. Since the report was not disclosed to the
police officer, the Privy Council declared the dismissal void.

Likewise, in Chief Constable of the North Wales Police v. Evans (1982) 1 WLR 1155, a Chief
Constable required a police probationer to resign on account of allegations about his private life.
But since the probationer was not given an opportunity to rebut the evidence or case against him,
the House of Lords held his dismissal as unlawful. Similarly in R. v. Assistant Metropolitan
Commissioner ex p Howell (1986) RTR 52, a taxi driver was refused the renewal of his license
on the ground of adverse medical report. As the medical report on the ground of which his
application for renewal of license was not disclosed to him, the Court of Appeal quashed refusal.

Limits to the Right to Access Adverse Material

Though the principles of natural justice require that before taking an action against a person in
judicial, quasi-judicial or administrative proceedings, the affected party must be provided access
to adverse material against him yet there are few limits to these broad principles. The Courts are
at liberty to examine the statutory framework within which natural justice has to operate and
sometimes, statute itself contains implied limitations. In such cases, it does not mean that the
opposite party would not be given access to the adverse material but the requirement of fair
procedure may be fulfilled by sharing the substance of the case or allegation, the affected party
has to refute. It may be done without disclosing the precise evidence or the source of
information. The extent of the disclosure required under the principles of natural justice may
 6

have to be assessed on the anvil of the scheme of the Act. Like in R. v. Gaming Board for Great
Britain ex p Benaim and Khaida (1970) 2 QB 417, the Court of Appeal applied the same rule. In
fact, the Gaming Board was empowered to grant certificates of consent to persons wishing to
operate gaming clubs. It was within the powers and duties of the Board to investigate credentials
of applicants and to obtain information from the police and other confidential sources. It was
held by the Court of Appeal that such sources need not be disclosed if there were some
substantial objections that raised the concern of public interest. It is sufficed, if the Board has
given an indication or shared the substance of objections with the applicant to enable him for
rebuttal. Right on the heels of the same approach, in Re Pergamon Press Ltd. (1971) Ch 388, the
inspectors appointed by the Board of Trade were to investigate the affairs of a company. Their
duty to act fairly did not warrant them to disclose the names of witnesses or the transcripts of
their evidence, or to show to a director any adverse passages in their proposed report in draft. But
without quoting chapter and verse, they should be given a fair opportunity to contradict what is
said against them, as by giving him an outline of the charge; and if their information is so
confidential that they cannot reveal it even in general terms, they should not use it.

Closed Material Procedure

Transparency and confidentiality both hold significance in administrative proceedings. The

administrative authorities are required to maintain a balanced view so as not to compromise the
public interest with the right of an affected party to fair procedure. There are several instances
where administrative authorities are compelled by the considerations of public interest to act in a
confidential manner relying on their intelligence sources. In such matters, public interest may be
compromised in case the details of the sources are divulged to the affected party. Maintaining
procedural fairness in such cases is extremely difficult, placing them in situations to exercise
Hobson’s choice.

It is important to point out here that this procedure can be opted only in case of authorization by
the statutes covering national security, terrorism prevention, investigation etc. where the sensitive
material cannot be disclosed. In such cases, the statute permits disclosure of material to the
advocate appointed by the Attorney General or the decision maker instead of the person affected.
Then, such an advocate deals with the matter and material as per the demands of occasion in a
 7

closed session. Endorsing this approach, the Supreme Court in Swadesh Cotton Mills v. Union of
India ARI 1981 4 SCC 485, attempted to strike a balance by observing that Audi Alteram Partem
is a flexible and adaptable concept of natural justice. Its operation can be modified and the
measures of its application can be cut short in reasonable proportion to meet the urgent situation
and harmonizing the obligation to act fairly. So far as the application of providing the
opportunity of fair hearing, it depends upon the fact and circumstances in view of urgency that at
what stage fair hearing may be provided.

Conclusion         

To sum up, it can be submitted that ‘hear the other party also’ is applicable in administrative,
judicial and quasi-judicial proceedings. So far as administrative proceedings are concerned, it has
a wide range of application in the proceedings involving use of administrative discretion. The
failure on the part of the authority to serve an opportunity to the affected party may vitiate the
attributes of legitimacy and fair hearing. Absence of adequate opportunity of hearing results in
the suspicion of biasness and lack of objectivity while the basic feature of the principles of
natural justice is that justice should not only be done but seems to be done. Therefore, it can be
submitted to conclude that the principles of natural justice are a branch of public law. It is an
important attribute to ensure fairness, legitimacy, objectivity and secure justice to the
stakeholders. The courts in the international arena and India as well, have acted as vigilant
sentinels on the qui vive to ensure observance to the principles of natural justice.