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fair hearing as a part of natural justice
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TH
NATURAL JUSTICE
Here we will only concern with the maxim audi altrem partem Common
law. From the medieval era, the English Common Law consists of the
principles of natural justice. The rules requiring impartial adjudications and
fair hearings can be traced back to the medieval precedents and indeed
they were not unknown in the ancient world.
Dr. Bonham’s Case (1610) COKE J. held that an Act of the Parliament is
void if it makes a person judge in his own cause or was otherwise against
common right or reason. Coke then made the following general statement:
“And it appears in our books, that in many cases, the common law will
control acts of parliament, and sometimes adjudge them to be utterly void:
for when an act of parliament is against common right and reason, or
repugnant, or impossible to be performed, the common law will control it,
and adjudge such act to be void; and, therefore, in … Thomas Tregor’s case
[Judge] Herle said, some statutes are made against law and right, which
those who made them perceiving, would not put them in execution…”
RULE OF FAIR HEARING
The concept of the rule of fair hearing is purely based on the Latin
maxim audi alteram partem i.e., the rule of fair hearing. It lays down
that no one should be condemned unheard. It is the first principle of the
civilized jurisprudence that a person facing the charges must be given
an opportunity to be heard, before any decision is taken against him.
Hearing means ‘fair hearing’. The norms of reasonableness of
opportunity of hearing vary from body to body and even case to case
relating to the same body. The components of fair hearing are not fixed
but are variable and flexible. Their scope and applicability differ from
case to case and situation to situation.
In Mineral Development Corp. LTD v. State of Bihar , the apex
court observed that the concept of fair hearing is elastic and not
susceptible of a precise and easy definition. The hearing procedures
vary from the tribunal, authority to authority and situation to situation.
It is not necessary that the procedures of hearing must be like that of
the proceedings followed by the regular courts.
In the 1970 case of A. K. Karaipak v. Union of India , the Supreme
Court made a statement that the fine distinction between the quasi-
judicial and administrative function needs to be discarded for giving a
hearing to the affected party. Before the Karaipak’s case , the court
applied the natural justice to the quasi-judicial functions only. But after
the case, the natural justice could be applied to the administrative
functions as well.
Right to know the evidence against him: The either of the party
to the suit before the court of law has the right to know about the
evidences produced before the court of law against him by the
opponent. Dhakeshwari Cotton Mills Ltd. v. CIT , held that the
assessed was not given a fair hearing as the Appellate Income Tax
tribunal did not disclose the information supplied to it by the
department. A person may be allowed to inspect the file and take
notes.
Right to present case and evidence: The authority who assigned
for look after a matter must provide an opportunity to the party to
present his case with indulging some evidences. Courts have
unanimously held that the oral hearing is not an integral part of the
fair hearing, unless the circumstances call for the oral hearing.
Right to cross-examination- Section 33 of the Indian Evidence Act,
1972, provides for the rights of the parties to cross-examine. The cross-
examination of the witnesses is not regarded as an obligatory part of
natural justice. Whether the opportunity of cross examination is to be give
or not depends upon the circumstances of the case and statute under
which hearing is held. Hira nath mishra v. Rajendra medical College ,
Ranchi, some male students of medical college entered the girls hostel and
misbehaved with the girls. An inquiry committee was set up against whom
the complaints were made. The complainants were examined but not in
presence of the boys. On the report of the committee, four students were
expelled from the college. They challenged the decision of the committee
on the ground of violation of the natural justice. The court rejected the plea
and held that in presence of the boys, the girls can not be cross-examined
that that may expose them to the harassment.
EXCEPTIONS TO THE RULE OF NATURAL
JUSTICE
The rule of fair hearing can be ignored in certain cases like:
Emergency – if a prompt action has to be taken where it is not expedient to hear all
evidence, the rule may be dispensed with.
Confidentiality – confidential documents need not be shown to a party.
Purely administrative matters – in purely administrative actions, it may be expedient to
leave these rules to provide order.
Impracticability – the application of the rules are not feasible in cases of administrative
impracticability.
Interim preventive action – if the order is an interim order and not the final decision, thr
rule may be avoided.
Legislative action – legislative actions are not subject to the rules of natural
justice.
Where no right of the person is infringed – when no statutory or common
law right is infringed, the application of the principle is unnecessary.
Statutory exception or necessity – cases requiring a quick action, where
only one judge is available, even a biased judge can take the decision and
in such cases, it would not vitiate the administrative action.
Contractual agreement – termination of an agreement does not attract the
principles of natural justice.
Useless formality theory – where there is an undisputed fact and only one
consequence would flow from enquiry, the rule may be avoided.