EXCEPTIONS

TO THE RULE
OF FAIR
HEARING
ASWATHY JAYARAJ, 10402
 PRINCIPLES OF FAIRNESS
 RULE AGAINST BIAS  AUDI ALTERAM PARTEM
 No Person shall be a judge in his own  Hear the other side.
case
 Bias-Operative prejudice whether REASONED DECISION
conscious or unconscious in relation to a
party or issue- cannot take an objective THE ONE WHO HEARS
decision.
MUST DECIDE
 Bias- Personal; Pecuniary, Subject matter;
 Fair Hearing
 The rule is “ qui aliquid statuerit, parte inaudita
altera aeuquum licet dixerit, haud aequum facerit”
(he who shall decide anything without the other
side having been heard although he may have said
what is right will not have done what is right).
 Lord Hewart- It is not merely of some
importance, but is of fundamental importance that
justice should not only be done, but should
manifestly and undoubtedly be seem to be done.
FAIR HEARING PRINCIPLES UNDER THE
CONSTITUTION : Examples
 Article 14 (Right to Equality) forbids arbitrariness- conformity with the Rule
of Natural Justice is considered essential
 The “procedure established by law” in Article 21-The procedure so
established has to be just, fair and reasonable.
 Article 300A of the Constitution- No person shall be deprived of her property
except by the authority of law. ‘Authority of Law’ means the authority of law
which provides for a fair procedure.
 Article 311- No person who is a member of a civil service under the Union
or State Government shall be dismissed or removed or reduced in rank
except after an inquiry in which she is informed of the charges against her
and is given a reasonable opportunity of being heard in respect of those
charges.
 ASPECTS OF FAIR HEARING
 The person likely to be adversely affected, or against whom the adverse action is proposed
to be taken, MUST have notice of WHY, WHEN and WHAT action is proposed.
 The action must be before an UNBIASED adjudicator.
 The Person MUST have ADEQUATE OPPORTUNITY to put forward her say as to why
such an action should not be taken.
 The authority MUST take a decision after CONSIDERING the representation of the person
likely to be affected.
 Such a decision MUST be based on REASONS.
 ESSENTIALS OF FAIR HEARING
 RIGHT TO NOTICE
 Sufficient Information- what, where, when..
 Sufficient Time to reply/ comply to notice
 Form of Notice
 RIGHT TO LEGAL REPRESENTATION ( in certain cases)
 RIGHT TO PRESENT CASE AND EVIDENCE
 Hearing- Oral or Written
 RIGHT TO REBUT THE ADVERSE EVIDENCE
 Pre supposes the knowledge of the evidence advanced against him/ The
evidence is in the presence of the concerned party
 Cross Examination
 REASONED DECISION
 EXCEPTIONS
 Necessity  Relaxation in case of Interim
 Emergency Preventive Action
 Confidentiality  Relaxation in cases of Statutory
 Impracticability Exception
 Exclusion in case of purely  Exclusion in terms of Contractual
administrative matters Arrangement
 Security of State  Exclusion in case of Government
 Doctrine of Pleasure Policy Decision
 NECESSITY
 Because of Statutory Requirement for the exclusiveness of a competent authority to
decide- Exception against the Rule of Bias.
 Ashok Kumar Yadav v State of Harayana – allegations that the member of PSC
has relations with the candidates.
 CONFIDENTIALITY
 When the very nature of the act requires that certain things remain
confidential, then, the principle of fair hearing can be excluded.
 Malak Singh v State of Punjab
 EMERGENCY
In situations that demand an immediate action, it becomes necessary to
act upon immediately, without going into the procedural aspects such
as giving notice, oral hearing etc .
In such situations of emergency, the principle of fair hearing can be
excluded.
 IMPRACTICABILITY
 A nascent and innovative concept is, using impracticability to avoid compliance of
Principles of Natural Justice.
 The sole justifiable cause is that the number of persons affected by a particular
Order, Act or decision is so great as to make it manifestly impractical for them all
to be given an opportunity of being heard by the competent authority beforehand
 Bihar School Examination Board v Subash Chandra
 EXCLUSION IN CASE OF PURELY
ADMINISTRATIVE MATTERS
 Administrative and Policy decisions, by virtue of their very nature of being non-
judicial, are exempted from following Principles of Natural Justice.
 Jawaharlal Nehru University v B.S. Narwal
 SECURITY OF STATE
 Right of hearing has to give way to National Security- whether ‘national security’ is
actually involved- Court cannot accept the dictum of those who are responsible for
maintaining the national security.
 Court should be satisfied on this point by presentation of some evidence to show
that the question of National Security is involved.
RELAXATION IN THE CASE OF INTERIM
PREVENTIVE/DISCIPLINARY ACTION
 Action of an administrative authority passing suspension orders in the nature of
preventive action and not a final order; the application of the Principles of
Natural Justice may be excluded.
 Abhay Kumar v K. Sreenivasan
 STATUTORY EXCLUSION
 EXPRESSLY- where the statute expressly excludes the observance of the Principle
of Fair Hearing.
 IMPLIEDLY: Matter of interpretation- Union of India v M.E. Reddy- statutory
provision- “Central government may require a servant to retire.” The term ‘require’
– interpreted by the Court as an absolute and unqualified power- exclusion of
natural justice.
 LEGISLATIVE ACTION
 There is no right to be heard before making a statute- primary or delegated.
 Legislative action, may be plenary or subordinate, is not subjected to the rules of
natural justice because these rules lay down a policy without reference to a
particular individual.
 Union of India v. Cynamid- government released an notification fixing the prices
of certain drugs- this was done without consulting the stakeholders in the
pharmaceutical industry.
 EXCLUSION IN TERMS OF
CONTRACTUAL ARRANGEMENT
 State of Gujarat v. M.P. Shah Charitable Trust - the Hon’ble Supreme Court
held -Principles of Natural Justice were not attracted in case of termination of an
arrangement in any contractual field ---- termination of an arrangement/agreement
was neither a quasi-judicial nor an administrative act, so that a duty to act judicially
was not attracted for the question of Principles of Natural Justice to even arise.
EXCLUSION IN CASE OF GOVERNMENT
POLICY DECISION
 if in exercise of executive powers, the government takes any policy decision,
Principles of Natural Justice can be excluded, because it will be impossible and
impracticable to accord a formal hearing to all those who may be affected whenever
a policy decision is taken and at times it will be against public interest to do so.
 WHEN NO RIGHT OF THE PERSON IS
INFRINGED
 Where no right has been conferred on a person by any statute nor any such right
arises from common law, the principles of natural justice are not applicable as no
rights are violated.
 R. Vohra v. Indian Export Houses- owner wanted to take possession of his
building after the expiration of the term for limited tenancy- Rent Controller
issued a warrant of possession to the landlord without issuing notice/hearing the ex
tenant- NOT a violation of Natural Justice Principles- after the expiry of the term of
tenancy- the right of the tenant is extinguished- No rights exist- No infringement
occurs.
 THANKYOU