1

INTRODUCTION :
The concept of Principles of Natural Justice were derived from the Romans who believed that
some Legal Principles need not require a statutory basis but that principles are Natural and
Self-evident. Almost all the Judicial and Quasi-Judicial authorities usually adopt this concept
before reaching to the judgment of the deciding case.

MEANING OF NATURAL JUSTICE:

The Natural Justice implies fairness, reasonableness, equity and equality. The expression
Natural Justice is nothing but Justice based upon innates moral feelings of the mankind.
Though there is no particular definition has been given but the basic requirements of the natural
justice are well known and have been repeatedly affirmed by the Courts of highest authority.
Natural Justice is also an expression of art that denotes of specific procedural rights in English
legal system and systems of other nations based on it, while most of the times the term Natural
Justice is replaced and extended by the general duty to act fairly and impartially.
The truth is that justice is a very elaborate conception, the growth of many centuries of
civilization; and even now the conception differs widely in countries usually described as
civilized.
Natural Justice has been defined in various cases and a few instances are given
Below :1
In Drew V. Drew and Lebura (1855 (2) Macg. 1.8, Lord Cranworth defined it as
universal Justice.
In James Dunber Smith v. Her Majesty the Queen (1877-78 (3) App Case 614,
623 JC) Sir Robort P.Collier, Speaking for the Judicial Committee of Privy
Council, used the phrase the requirements of substantial justice.
In Arthur John Specman v. Plumstead District Board of Works (1884-85 (10) App
Case 229, 240), Earl of Selbourne, S.C. preferred the phrase the substantial
requirement of justice.
In Vionet v. Barrett (1885 (55) LJRD 39, 41), Lord Esher, MR defined natural
justice as the natural sense of what is right and wrong.

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1.http://www.hcmadras.tn.nic.in/jacademy/article/Pri%20of%20Natural%20Jus%20by%20TSSJ.pdf

While however, deciding Hookings vs. Smethwick Local Board of Health (1890
(24) QBD 712), Lord Fasher, M.R. instead of using the definition given earlier by
him in Vionets case (supra) chose to define natural justice as fundamental
justice.
In Ridge v. Baldwin (1963 (1) WB 569, 578), Harman LJ, in the Court of appeal
countered natural justice with fair play in action a phrase favoured by
Bhagawati, J. in Meneka Gandhi vs. Union of India (1978 92) SCR 621).
In Re R.N. (An Infaot) (1967 (2) B. 617, 530P, Lord Parker, C.J., preferred to
describe natural justice as a duty to act fairly.
In Fairmount Investments Ltd., vs. Secretary to State for Environment (1976
WLR 1255) Lord Russell of Willowan somewhat picturesquely, described natural
justice as a fair crack of the whip
Geoffrey Lane, LJ in Regina vs. Secretary of State for Home Affairs Ex Parte
Hosenball (1977 (1) WLR 766) preferred the homely phrase common fairness.

Essential Features of Natural Justice:

The law requires fairness from a person exercising an administrative power. This is not
something that can be set down in anticipation or in a fixed body of rules, as what is fair in any
given situation depends on the circumstances. The main features of Natural Justice are as
follows:2
1.

The right to be heard by an unbiased Tribunal

2.

The right to have notice of charges of misconduct,

3.

The right to be heard in answer to that charge

AIM AND OBJECTS OF NATURAL JUSTICE:

1.

The main aim of the Natural Justice is to prevent mis-carriage of justice.

2.

To provide a person opportunity of being heard before passing the final order of the case.

3.

There should not be involvement of any kind of bias among the judges while deciding the
matter.

2. http://www.legalindia.in/pnj-principles-of-natural-justice

What exactly are these principles???

Basically, these are principles, which are necessary for a just and fair decision-making. These
principles are often embedded in the rules of procedure, which govern the judiciary. For
example, the Civil Procedure Code prescribes a detailed procedure under which the Defendant
has the right to reply to the Plaint; both sides have the right to inspect the documents relied upon
by the other side and both sides have the right to cross-examine one anothers witnesses. The
judgment must give reasons for the decision.
The Principles of Natural Justice have come out from the need of man to protect himself from
the excesses of organized power man has always appealed to someone beyond his own creation.
Such someone is the God and His laws, divine law or natural law, to which all temporal laws and
actions must confirm.3
Natural Law is of the 'higher law of nature' or 'natural law'
Natural Law does not mean the law of the nature or jungle where lion eats the lamb and tiger eats
the antelope but a law in which the lion and lamb lie down together and the tiger frisks the
antelope.
Natural Law is another name for common-sense justice.
Natural Laws are not codified and is based on natural ideals and values which are universal.
In the absence of any other law, the Principles of Natural Justice are followed.
Earliest form of natural law can be seen in Roman philosophical expressions (Jus Naturale). It is
used interchangeably with Divine Law, jus gentium and the common law of nations.

The Principles of Natural Justice are considered the basic Human Rights because they
attempt to bring justice to the parties naturally.

Giving reasoned decisions is a postulate and principle of Natural Justice.

3. http://www.lawnotes.in/Principles_of_Natural_Justice

Basic Pillars Of Pillars of Principles of

Natural Justice :
Two core points in the concept of principles of natural justice
1. Nemo in propria causa judex, esse debet - No one should be made a judge in his own
case, or the rule against bias.
2. Audi alteram partem - Hear the other party, or the rule of fair hearing, or the rule that
no one should be condemned unheard.
These two are the basic pillars of the Principles of Natural Justice. No system of law can survive
without these two basic pillars.4

Rule Against Bias

Bias means an operative prejudice, whether conscious or unconscious in relation to a
party or issue. The rule against bias flows from following two principles: a) No one should be a judge in his own cause
b) Justice should not only be done but manifestly and undoubtedly be seen to be done.

Thus a judge should not only be impartial but should be in a position to apply his mind
objectively to the dispute before him.
The rule against bias thus has two main aspects: 1. The administrator exercising adjudicatory powers must not have any personal or proprietary
interest in the outcome of the proceedings.

4. Upadhyaya j.j.,administrative law;central law agency;allahbad;8th edition;2012;pg 175

2. There must be real likelihood of bias. Real likelihood of bias is a subjective term, which
means either actual bias or a reasonable suspicion of bias. It is difficult to prove the state of
mind of a person. Therefore, what the courts see is whether there is reasonable ground for
believing that the deciding factor was likely to have been biased.
3.
Lord Thankerton in the English case of Franklin v. Minister of Town & Country Planning
5
stated that:
"I would not wish that the use of the word "bias" should be confined to its proper sphere. Its
proper significance, in my opinion, is to denote a departure from the standard of even-handed
justice which the law requires from those who occupy judicial office or those who are commonly
regarded as holding a quasi-judicial office, such as an arbitrator.

The Supreme Court in Crawford Bayley & Co. v. Union of India6 restated that the doctrine of
rule against bias comes into play if it is shown that the officer concerned has a personal
connection or personal interest or has personally acted in the matter concerned and/or has already
taken a decision one way or the other which he may be interested in supporting. This rule of
disqualification is applied not only to avoid possibility of a partial descion but also to ensure
public confidence in the impartiality of the administrative adjudicatory process because not only
must no man be a judge in his own case but also justice should not only be done but should
manifestly and undoubtedly be seen to be done.7
A decision which is a result of bias is a nullity and the trial is Coram non-judice. 8 Inference of
bias, therefore, can be drawn only on the basis of factual matrix and not merely on the basis of
insinuations, conjectures and surmises.9 Bias cannot be presumed, it must be proved from the
facts of the case.

5.I.P. MASSEY, ADMINISTRATIVE LAW (7th ed, 2008)

6. D.GALLIGAN, DUE PROCESS AND FAIR PROCEDURE (1996).
7. Eckersley v. Mersey Docks and Harbour Board, [1894] 2 Q.B. 667
8. Egerton v. Lord Derby, (1613) 12 Co.Rep.114.
9. Federation of Railway Officers Assn. v. Union of India, (2003) 4 SCC 289

DOCTRINE OF BIAS EXTENDED TO ADMINISTARTIVE ACTIONS

The principle of impartiality of a judge is extended even to administrative authorities that
take decisions affecting rights or interests of people. The fundamental principle of xommon
law that no person should be a judge in her own cause was laid down by Lord Coke in
Dr.Bonhams case.10it was further developed with a view to strengthening public confidence
in the administration of justice and in conformity with the principle that justice should not
only be done but manifestly and undoubtedly seen to be done. It is important to note here
that disqualification on the ground of bias applies not only to quasi-judicial authorities but
also to administrative authorities.11 This was laid down in the case of A.K.Kraipak v. India.12
However, it normally does not apply to those performing either legislative or administrative
functions.

Bias can take many forms: Personal Bias

Pecuniary Bias
Subject-matter bias
Departmental bias
Pre-conceived notion bias

Dealing with each kind in detail:

Personal Bias:
It arises out of the personal or professional relationship of friendship or hostility between the
authority and the parties. Its the human nature that we try to give favorable decision to our
friends or relatives, whereas use the same as a weapon against the enemies.
Apex courts decision in Mineral Development Corporation Ltd. V. State of Bihar 13, serves as a
good illustration on the point. Here, the petitioners were granted a mining lease for 99 years in
1947. But in 1955, government quashed the license. The petitioners brought an action against the
minister passing this order on the behalf of government, on the ground that, the petitioner in
1952 opposed the minister in General election. Therefore, on the account of political rivalry, the
minister passed such an order, and hence the order was suffered from personal bias. Supreme
Court found the allegation to be true and thus quashed the said order.

10. G.N.Nayak v. Goa University, (2002) 2 SCC 290

11. Ganga Bai Charities v. CIT, (1992) 3 SCC 690
12. Govindaraju v. State of T.N., (1973) 1 SCC 336
13. AIR1960 SC 468

Similarly in Baidyanath Mohapatra v. state of Orissa14, the Supreme Court quashed the order
of the tribunal confirming premature retirement on the ground that the chairman of the tribunal
was also a member of the review committee which had recommended premature retirement.
In J.Mohopatra & Co. Vs, State of Orissa15 SC quashed the decision of the Textbooks'
selection committee because some of its members were also the authors of the books, which
were considered for selection. The Court concluded that withdrawal of person at the time of
consideration of his books is not sufficient as the element of quid pro quo with other members
cannot be eliminated.

STATE OF U.P. v. MOHD. NOOH16

In this case, a Deputy S.P. was appointed to conduct a departmental enquiry against a police
constable. In order to contradict the testimony of a witness, the presiding officer offered himself
as a witness. The Supreme Court quashed the administrative action on the ground that when the
presiding officer himself becomes a witness, there is certainly a real likelihood of bias against
the constable.

Pecuniary Bias:
Any financial interest howsoever small it may be is bound to vitiate the administrative action.
The judicial opinion is unanimous as to it.
In R v. Hendon Rular District Council,17 the court in England quashed the decision of the
planning commission, where one of the members was an estate agent who was acting for the
applicant to whom permission was granted.
In Jeejeebhoy vs. Astt. Collector,Thana18 the CJ reconstituted the bench ,when it was found that
one of the members of the bench was the member of the cooperative society for which the land
has been acquired.

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14. (1989)4 SCC 664
15. AIR 1984 SC 1572
16. AIR 1958 SC 86
17. (1933) 2 KB 696
18. AIR 1965 SC 1096

But this rule is not applicable where the judge, though having a financial interest, has no direct
financial interest in the outcome of the case. this is evident from the Court of Appeal decision in
R v. Mulvhill,19 where the court refused to set aside the conviction of an accused on a charge of
robbery in a bank on the ground that the trial judge had shares in that bank. In such cases unless
there is a likelihood of bias administrative action will not be quashed.
Judicial approach is unanimous and decisive on the point that any financial interest, howsoever,
small it may be, would vitiate administrative action. The disqualification will not be avoided by
non-participation of the biased member in the proceeding if he was present when the decision
was reached.20 However, the rule against bias will not be applied where the judge though having
a financial interest, has no financial interest in the outcome of the case.21
In Annamalai v. State of Madras22 where one of the members of the Regional Transport
Authority issued a permit in his own favour. Afterwards he transferred the same permit in favour
of his son-in-law. However the court quashed the order as it was against natural justice.

Subject Matter Bias:

It may arise when the judge has a generl interest in the subject matter. According to Griffith and
Street, Only rarely will this bias invalidate proceedings.
The situations where the deciding officer is directly or indirectly in the subject matter of the case.
In R v. Deal Justices ex p. Curling,23 the magistrate was not declared disqualified to try a case of
cruelty to an animal on the ground that he was a member of the royal society for the prevention
of cruelty to animals as this did not prove a real likelihood of bias.

19 (1990) 1 AllER 436

20. Hannam v. Bradford Corporation, [1970] 1 WLR 937
21. Hari v. Dy. Commr. Of Police, AIR 1956 SC 559
22. AIR 1957 AP 739
23. (1881)45 LT 439

The supreme court in cases like Murlidhar v. Kadam singh & sub committee of judicial
accountability v. Union of India , followed the same line. But in Gulla palli Nageshwara Rao
v. APSRTC24, the Supreme Court quashed the decision of A.P. government . nationalizing road
transport on the ground that the secratery of the transport department who was given a hearing
was interested in the subject matter. It may be mentioned that in USA and England,
predisposition in favor of a policy in the public interest is not considered as legal bias vitiating
administrative actions.
Those cases fall within this category where the deciding officer is directly, or otherwise, involved
in the subject matter of the case. Here again mere involvement would not vitiate the
administrative action unless there is a real likelihood of bias.25

DEPARTMENTAL BIAS/INSTITUTIONAL BIAS

The problem of 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.

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In Gullapalli Nageswara Rao v. APSRTC26 the order of the government nationalizing road
transport was challenged in this case. One of the grounds for challenge was that the Secretary of
the Transport Department who gave the hearing was biased, being the person who initiated the
scheme and also being the head of the department whose responsibility it was to execute it. The
court quashed the order on the ground that, under the circumstances, the Secretary was biased,
and hence no fair hearing could be expected.
The problem of departmental bias arises in different context- when the functions of judge and
prosecutor are combined in the same department. It is not uncommon to find that the same
department which initiates a matter also decides it, therefore, at times, departmental fraternity
and loyalty militates against the concept of fair hearing.

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24. AIR 1959 SC 308
25. International Airport Authority v. K.D.Bali (1988) 2 SCC 360
26. AIR 1959 SC 309

This problem came up before the Supreme Court in Hari v. Dy. Commr. of Police.27 In this case
an externment order was challenged n the ground that since the police department which initiated
the proceedings and the department which heard and decided the case were the same, the element
of departmental bias vitiated administrative action. The Court rejected the challenge on the
ground that so long as the two functions (initiation and decision) were discharged by two
separate officers, though they were affiliated to the same department, there was no bias.
In Krishna Bus Service v. State of Haryana,28 the Supreme Court quashed the notification of the
government which had conferred powers of a Deputy Superintendent of Police on the General
Manager, Haryana Roadways in matters of inspection of vehicles on the ground of departmental
bias.The facts of this case were that some private bus operators had alleged that the General
Manager of Haryana Roadways who was the rival in business in the State could not be expected
to discharge his duties in a fair and reasonable manner and would be too lenient in inspecting the
vehicles belonging to his own department. The reason for quashing the notification according to
the Supreme Court was the conflict between the duty and the interest of the department and the
consequential erosion of public confidence in administrative justice.
The problem of departmental bias is something which is inherent in the administrative process,
and if it is not effectively checked, it may neglect the very concept of fairness in the
administrative proceeding.29 The problem of departmental bias also arises in a different context

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where the functions of a judge and a prosecutor are combined in the same department. It is not
uncommon to find that the same department which initiates a matter also decides it, therefore, at
times, departmental fraternity and loyalty militates against the very concept of fair
hearing.30 However, where there is no such conflict between the duty and interest of the
department, concept of institutional bias cannot be narrowly construed in view of compelling
institutional constraints.31

27. AIR 1956 SC 559

28. AIR 1985 SC 1651
29. Jasvinder Singh v. State Bank of J&K, (2003) 2 SCC 132
30. Jiwan K. Lohia v. Durga Dutt Lohia, (1992) 1 SCC 56
31. Law v. Chartered Institute of Patent Agents, [1919] 2 Ch. 276

Preconceived Notion Bias

Bias arising out of preconceived notions is a very delicate problem of administrative law. On the
one hand, no judge as a human being is expected to sit as a blank sheet of paper, on the other
hand, preconceived notions would vitiate a fair trial. A classic case bringing this problem to the
forefront is Franklin v. Minister of Town and Country Planning known as Stevenage case. In
this case the appellant challenged the Stevenage New Town Designation order, 1946 on the
ground that no fair hearing was given because the minister had entertained bias in his
determination which was clear from his speech at Stevenage when he said I want to carry out a
daring exercise in town planning.It is no good your jeering! It is going to be done. Though the
court did not accept the challenge on the technical grounds that the minister in confirming the
report was not performing any quasi-judicial function, but the problem still remains that the bias
arising from strong convictions as to policy may operate as a more serious threat to fair action
than any other single factor.
This point came up for consideration before the Supreme Court in T. Govindaraja Mudaliar v.
State of T.N,32 the government decided in principle to nationalize road transport and appointed a
committee to frame the scheme. The Home Secretary was made a member of this committee.

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Later on, the scheme of nationalization was finalized, published and objections were heard by the
Home Secretary. It was contended that the hearing was vitiated by the rule against bias because
the Secretary had already made up his mind on the question of nationalization as he was a
member of the committee which took this policy decision. The court rejected the challenge on
the ground that the Secretary as a member of the committee did not finally determine any issue
as to foreclose his mind. He simply helped the government in framing the scheme. Similarly,
in Kondala Rao v. APSRTC the court did not quash the nationalization of the road transport
order of the Minister who had heard the objections of private operators on the ground that the
same Minister had presided over a meeting only a few days earlier in which nationalization was
favored. The court rejected the contention on the ground that the decision of the committee was
not final and irrevocable but merely a policy decision.The problem of bias arising from
preconceived notions may have to be disposed of as an inherent limitation of the administrative
process. It is useless to accuse a public officer of bias merely because he is predisposed in favor
of some policy in the public interest.Bias arising out of preconceived notions is a very delicate
problem of administrative law. On one hand, no judge as a human being is expected to sit as a
blank sheet of paper, on the other hand, preconceived notions would vitiate a fair
trial.33 However, the problem of bias arising from preconceived notions may have to be disposed
of as an inherent limitation of the administrative process.
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32. AIR 1973 SC 974
33. M. Sankaranarayanan v. State of Karnataka, (1993) 1 SCC 54

BIAS ON ACCOUNT OF OBSTINACY

The word Obstinacy implies unreasonable and unwavering persistence and the deciding officer
would not take no for an answer. This new category of bias was discovered in a situation where
a judge of the Calcutta High Court upheld his own judgment while sitting in appeal against his
own judgment. Of course a direct violation of the rule that no judge can sit in appeal against his
own judgment is not possible, therefore, this rule can only be violated indirectly. In this case in a
fresh writ petition the judge validated his own order in an earlier writ petition which had been
overruled by the Division Bench. What applies to judicial process can be applied to
administrative process as well.
The Supreme Court34 has discovered a new category of bias arising out of thoroughly
unreasonable obstinacy. Obstinacy implies unreasonable and unwavering persistence and the
deciding officer would not take no for no answer. This new category of bias was discovered in a
situation where a judge of the Calcutta High Court upheld his own judgment while sitting in an
appeal against his own judgment.

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Test Of Bias:
There are two kinds of tests:

Reasonable Suspicion Of Bias : looks mainly to outward appearance.

Real Likelihood Of Bias : Focuses on courts own evaluation of possibilities.
In both the situations, the court sees whether there is reasonable ground for believing that the
deciding officer was likely to be biased, as it is very difficult to prove a persons state of mind.
In the case of Jiwan K. Lohia v. Durga Dutt Lohia 35, the apex court observed that with regard
to the bias the teat to be applied is not whether in fact the bias has affected the judgment, but
whether a litigant could reasonably apprehend that a bias attributable might have operated
against him in the final decision.
Therefore the real test for likelihood of bias is whether a reasonable person in possession of
relevant information, would have thought that bias was likely and whether the authority
concerned was likely to be disposed to decide a matter in a particular manner.

34. Manak Lal v. Dr. Prem Chand, AIR 1957 SC 425

35. (1992) 1 SCC 56

The reason is plain enough as per Lord Denning[5]36, Justice must be rooted in the confidence
and the confidence is destroyed when right minded people go away thinking that the judge is
biased.
Much confusion has been caused in the past by the concurrent use of two differently formulated
tests for disqualifying bias. Many judges have laid down and applied the real likelihood
formula, holding that the test for disqualification is whether the facts, as assessed by the court,
give rise to real likelihood of bias in Meenglas Tea Estate v. Workmen 37; and this test has
naturally been emphasizeed in cases where allegation of bias was far-fetched.38
Other judges have employed a reasonable suspicion test emphasizing that justice must be seen
to be done, and that no person should adjudicate in any way if it might reasonably be thought
that he ought not to act because of some personal interest in Murlidhar v. Kadam Singh 39 In
one case it was even said that the rule for judges of all kinds was that they must be free from
even unreasonable suspicion of bias.
In order to challenge administrative action successfully on the ground of personal bias, it is
essential to prove that there is a reasonable suspicion of bias 40 or a real likelihood of bias.
The reasonable suspicion test looks mainly to outward appearance, and the real likelihood

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test focuses on courts own evaluation of possibilities; but in practice the tests have much in
common with one another and in the vast majority of cases they will lead to the same result. 41 In
this area of bias, the real question is not whether a person was biased. It is difficult to prove the
state of mind of a person. Therefore, what the courts see is whether there is a reasonable ground
for believing that the deciding officer was likely to have been biased.

36. Lord Denning : The Discipline Of Law ,(1982)pg87

37. AIR 1963 SC 1719
38. Metropolitan Properties Co. (FCG) Ltd. .v Lannon, [1969] 1 QB 577
39. AIR 1954 MP 111
40. R v. Sutherland Justices, (1901) 2 KB 357
41. R. .v. Altrincham, ex p. Pennington, [1975] 1 Q.B. 549

TEST OF REASONABLE SUSPICION OF BIAS OR REAL LIKELIHOOD OF BIAS IN

THE INDIAN SCENARIO
In deciding the question of bias, the judges have to take into consideration the human
possibilities and ordinary course of human conduct.42 But there must be a real likelihood of bias
and not a mere suspicion of bias before the proceedings can be quashed on the ground that the
person conducting the proceedings is disqualified by bias. In Jiwan K. Lohia v. Durga Dutt
Lohia, upholding the decision of High Court while removing an arbitrator appointed by the court
on the ground of bias, the Supreme Court observed that with regard to bias the test that has to
applied is not whether in fact bias has affected the judgment but whether the litigant could
reasonably apprehend that a bias attributable might have operated against him in the final
decision.
Therefore, the real test of real likelihood of bias is whether a reasonable man, in possession of
relevant information, would have thought that bias was likely or whether the authority concerned
was likely to be disposed to decide the matter in a particular way.

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In the case of Ramanand Prasad Singh v. Union of India43. the Supreme Court held that
participation in the selection committee as a member where his brother was a candidate but was
not selected is inconsequential bias on which the whole select list cannot be quashed. In the case
of Jasvinder Singh v. State Bank of J&K 44 he Supreme Court held that in the absence of any
specific allegation against the Selection Board or any member thereof, awarding of higher
percentage of marks to those who got lower marks in a written examination would not vitiate
selection especially when there were only a few negligible instances and there was no conscious
effort to bring candidates within the selection zone. In Federation of Railway Officers Assn. v.
Union of India45, the court further held that the allegation of bias on imaginary basis cannot be
sustained. In Gullappalli Nageswara Rao v. State of A.P.46 it was held that the doctrine of bias is
equally applicable to authorities though they are not courts of justice or judicial tribunals, who
have to act judicially in deciding the rights of others i.e. authorities who are empowered to
discharged quasi-judicial function.

42. G.N.Nayak v. Goa University (2002) 2 SCC 290

43. (1996) 4 SCC 64
44. (2003) 2 SCC 132
45. (2003) 4 SCC 289
46. R. v. Deal Justices ex p. Curling, (1881) 45 LT 439; Murlidhar v. Kadam Singh, AIR 1954 MP 111; Gullapalli
Nageswara Rao v. APSRTC, AIR 1959 SC 308

In the case of Charanjit Singh v. Harinder Sharma47, the Court held that there is a real
likelihood of bias when in a small place there is a relationship between selectees and members of
selection committee.

Doctrine of Necessity:

48

Bias would not disqualify an officer from taking an action if no other person is competent to act
in his place. This exception is based on the doctrine which it would otherwise not countenance
on the touchstone of judicial propriety. The doctrine of necessity makes it imperative for the
authority to decide and considerations of judicial propriety must yield. It can be invoked in cases
of bias where there is no authority to decide the issue. If the doctrine of necessity is not allowed
full play in certain unavoidable situations, it would impede the course of justice itself and the

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defaulting party would benefit from it. If the choice is between either to allow a biased person to
act or to stifle the action altogether, the choice must fall in favor of the former as it is the only
way to promote decision-making. Therefore, the Court held that bias would not vitiate the action
of the Speaker in impeachment proceedings and the action of the Chief Election Commissioner
in
election
matters.
In the USA, the disqualification arising out of bias arises from the due process clause of the
American Constitution. Therefore, an administrative action can be challenged in India and
England. Recent trends in the judicial behavior of the American Supreme Court also indicate that
where the administrative authority prejudged the issue, the action will be vitiated.
However, the term bias must be confined to its proper place. If bias arising out of preconceived
notions means the total absence of preconceptions in the mind of the judge, then no one has ever
had a fair trial, and no one ever will. Therefore, unless the strength of the preconceived notions is
such that it has the capacity of foreclosing the mind of the judge, administrative action would not
be vitiated.

47. (2002) 9 SCC 732

48. http://www.legalserviceindia.com/article/l25-Nemo-in-propria-causa-judex,-esse-debet-THE-RULE-AGAINSTBIAS.html

Audi alteram partem : Rule of Hearing

The principle is audi alteram partem, i.e. no man should be condemned unheard or that both the
sides must be heard before passing any order. A man cannot incur the loss of property or liberty
for an offence by a judicial proceeding until he has a fair opportunity of answering the case
against him. In many statutes, provisions are made ensuring that a notice is given to a person
against whom an order is likely to be passed before a decision Is made, but there may be
instances where though an authority Is vested with the powers to pass such orders which affect
the liberty or property of an individual but the statute may not contain a provision for prior
hearing. But what is important to be noted is that the applicability of principles of natural justice
is not dependent upon any statutory provision. The principle has to be mandatorily applied
irrespective of the fact as to whether there is any such statutory provision or not. De Smith, in his
Judicial Review of Administrative Action (1980), at page 161, observed, I "Where a statute

17

authorises interference with properties or other rights and is silent on the question of hearing, the
courts would apply rule of universal application and founded on plainest principles of natural
justice." Wade in Administrative Law (1977) at page 395 says that principles of natural justice
operate as implied mandatory requirements, non- observance of which invalidates the exercise of
power. In one of the cases, reported in (1863) 14 GB (NS) 4 180 Cooper v. Sandworth Board
of Works, it was observed d, "...Although there is no positive word In the statute requiring that
the party shall be heard, yet justice of common law would supply the omission of Legislature."
The authoritative body while deciding the matter must act fairly and in a bona- fide manner by
giving an opportunity to both the parties to present their case so that no party will be condemned
unheard The Doctrine of Audi Alteram Partem or the right of fair hearing includes certain
essential elements which are as follows:
i.

Prior notice of the hearing.

ii.

The opportunity to be heard.

iii.

The conduct of the hearing.

iv.

Right to rebut adverse evidence

a) Right to cross examination
b) Right to legal representation

v.

The decision and reason for it.

Notice
Before any action is taken, the affected party should be given a notice to show cause against the
proposed action and seek his explanation. Any order passed without giving notice is against the
principles of natural justice. Accordingly, even if there is no provision in the statute about giving
of notice, if the order in question adversely affects the rights on an individual, the notice must be
given. It is a sine qua non of fair hearing. Any order passed without giving notice is against the
principles of natural justice and is void ab initio.49
o Adequacy of Notice : It is not enough that a notice in a given case be given, it must be
adequate also. The question of adequacy of notice depends upon the facts and
circumstances of each case. However, a notice in order to be adequate must contain the
following :
1. Time, place and nature of hearing
2. Legal authority and jurisdiction under which hearing is to be held.

18

3. Matters of fact and Law as regards charges.50

In J. Vilangandan v. Executive Engineer,51 the executive engineer proposed to blacklist a
contractor. He gave a notice to him. But the Supreme court found that the notice was inadequate
as it did not contain words to indicate clearly to the contractor that it was proposed to debar him
as defaulter from taking any contract in future under the Department.
o Reasonable opportunity :The notice must give a reasonable opportunity to comply with
the requirements mentioned in it. Thus, to give 24 hours time to dismantle a structure
alleged to be in a dilapidated condition is not proper and the notice is not valid. Where
the notice of one charge has been given, the person cannot be punished for a separate
charge of which he had no notice, even though he may not have appeared to defend
himself against the original charge.52

49. Municipal Board Pushkar v. State Transport Authority, AIR 1965 SC 458
50. Upadhayaya J.J.R;administrative law;8th edition; central law agency;allahbad;pg183
51. AIR 1978 SC 930
52. Annamuthado v. Oilfield workers, (1961) 3 AII E.R.621: Govindsingh v. Subbarao, (1970) 11 Guj. L.R.
(618-19)

Hearing

The second requirement of audialterampartem is that the person concerned must be given an
opportunity of being heard before any adverse action is taken against him.
In Cooper v. Wandsworth Board of Works,53 the Board had power to demolish

any building

without giving an opportunity of hearing if it was erected without prior permission. The board
issued order under which the house of the plaintiff was demolished. The action was brought
against the Board because it had used that power without giving the owner an opportunity of
being heard. The court held that the Boards power was subject to the qualification that no man
can be deprived of his property without having an opportunity of being heard.

19

In Ridge v. Baldwin54 their Lordship held that the rule of natural justice is applied, so the
watchmen committee ought to have informed him of the charges and given him the opportunity
to be heard. Where officials and others have power to make decisions affecting the rights of
individuals the rule of natural justice must be observed. It has been described as the magna
carta of natural justice.55upadhya

Lord Denning extends the scope of natural justice to decision involving legitimate
expectations.56. Legitimate expectation may rise from the past conduct, such as regular granting
of hearing before issuing licences or assurance for example immigrant who gives himself up will
not be deported without being given a hearing.

53. (1863) 14 CB (NS) 180.

54. (1964) AC 40.
55. .Upadhayaya J.J.R; Administrative law; 8th edition; Central law agency; Allahbad; pg 184
56. Schimidt v. Secretary State of Home affair (1969) 2 Ch. 170

Post Decisional Hearing

Post decisional hearing means hearing after the decision is reached. The idea of post
decisional hearing has been developed by the SC in Maneka Gandhi Vs. UOI to
maintain the balance between administrative efficiency and fairness to the individual.
Maneka Gandhi Vs. Union of India
Facts : In this case the passport dated 01.06.1976 of the petitioner, a journalist, was impounded
Rsin the public interest' by an order dated 02.07.1977. The Govt. declined to furnish her the
reasons for its decision. She filed a petition before the SC under article 32 challenging the
validity of the impoundment order. She was also not given any pre-decisional notice and hearing.
Argument by the Govt.
The Govt. argued that the rule of audi alteram partem must be held to be excluded because
otherwise it would have frustrated the very purpose of impounding the passport. However the
Supreme Court held that though the impoundment of the passport was an administrative action

20

yet the rule of fair hearing is attracted by the necessary implication and it would not be fair to
exclude the application of this cardinal rule on the ground of administrative convenience. The
court did not outright quash the order and allowed the return of the passport because of the
special socio-political factors attending the case. The technique of post decisional hearing was
developed in order to balance these factors against the requirements of law, justice and fairness.
The court stressed that a fair opportunity of being heard following immediately the order
impounding the passport would satisfy the mandate of natural justice. The court validated the
order of the govt. which had been passed in violation of the rule of audi alteram partem because
the govt. had agreed to give post-decisional hearing. The ratio of the majority decision was as
follows: 1. Pre-decisional hearing may be dispensed with in an emergent situation where immediate
action is required to prevent some imminent danger or injury or hazard to paramount public
interest.
2. Mere urgency is, however, no reason for exclusion of audi alteram partem rule. The decision
to exclude pre-decisional hearing would be justiciable.
3. Where pre-decisional hearing is dispensed with, there must be a provision for post-decisional
remedial hearing.
. In H.L.Trehan Vs. UOI, a circular was issued by the Govt. on taking over the company
prejudicially altering the terms and conditions of its employees w/o affording an opportunity of
hearing to them. The SC observed that "In our opinion, the post decisional opportunity of hearing
does not subserve the rules of natural justice. The authority who embarks upon a post-decisional
hearing will normally proceed with a closed mind and there is hardly any chance of getting
proper consideration of the representation at such a post decisional hearing." Thus in every case
where pre-decisional hearing is warranted, post-decisional hearing will not validate the action
except in very exceptional circumstances.
Pre-decisional hearing is the standard norm of rule of audi alteram partem. But post-decisional
hearing atleast affords an opportunity to the aggrieved person and is better than no hearing at all.
However, post-decisional hearing should be an exception rather than rule. It is acceptable in
the following situations:_
1. where the original decision does not cause any prejudice or detriment to the
person affected;
2. where there is urgent need for prompt action;
3. where it is impracticable to afford pre-decisional hearing.
The decision of excluding pre-decisional hearing is justiciable.

Oral Hearing
Generally, hearing means oral hearing where the parties have the right to legal representation to
produce witness who may be cross- examined. 57 The general rule propounded by the Supreme
Court of India is that natural justice does not necessarily involve a right to oral hearing. I am not
prepared to accept the contention that a right to be heard orally is an essential right of procedure

21

even according to the rules of natural justice. That right to defence may be admitted, but there is
nothing to support the contention that an oral hearing is compulsory.58
In the case of UOI v. J.P.Mitter59 it was held by the Supreme Court that as the petitioner judge
had been afforded an opportunity to submit his case in writing denial of an opportunity of
personal hearing, even after request, does not violate the principles of natural justice.
However, the importance of oral hearing should be emphasized where complex and technical
questions are involved, such as the chemical composition of articles, for the purpose of applying
the Central Excise and Salt Act.60

__________________________________________________________________
57. Wade, H.W.R.,Administrative Law.1988, p.543
58. A.K. Goapalan v. State of Madras , AIR1950 SC 27 (43).
59. AIR 1971 SC 1093
60. Travancore Rayons v. Union of India, AIR 1971 SC 862 (864).

Fair Hearing
Natural justice is primarily identified with fair hearing. In the case of Gullapalli Nageshwar
Rao v. A.P.S.R.T.C61 it was held that While fair opportunity to be heard should be given to the
parties, the principle does not imply, unless expressly provided by the statute.
In Mohinders Case62, Justice Iyer explained :
It can be fair without the rules of evidence or forms of trial. It cannot be fair if appraising the
affected and appraising the representations is absent.
Thus a hearing to be fair must fulfill several requirements
1. Reception of evidence produced by the person : The adjudicatory authority must give full
opportunity to the affected person to produce all the relevant evidence in support of his
case.63 In Dhakeshwari Cotton Mills Ltd. V. C.I.T.64 the taxpayer had produced certain

22

account books which he did not have opportunity to produce earlier owing to reasons
beyond his control. The Income Tax Appellate Tribunal refused to look into the said
account books. The Supreme Court held that such refusal violates the rule of fair hearing.
Accordingly, the order passed by the Income Tax Appellate Tribunal was quashed by the
court.
2. Disclosure of Materials : The adjudicating authority must disclose all material placed
before it in course of proceedings. In Dhakeshwari Cotton Mills v. C.I.T.65 , the
Supreme Court quashed the order passed by the Income - Tax Appellate Tribunal on the
ground that it did not disclose some evidence to the assessee produced by the department.
Natural Justice is infringed if the adjudicatory body decides a matter on the basis of
confidential inquiries unlnown to the party concerned

______________________________________________________________________________________
61. AIR 1959 SC 308
62. AIR 1978 SC 851
63. Tisco v. UOI, AIR 1967 Pat. 375
64. AIR 1955 SC 65
65. ibid.
66. State Bank of India v. D.C. Aggarwal, AIR 1993 SC 11

3. Rebuttal of Adverse Evidence : The adjudicating authority must give right to the party
concerned to rebut the evidence and material placed by the other side. In Bishambhar
Nath v. State of U.P.67 , in revision proceedings, the Custodian General accepted new
evidence produced by one party but no opportunity was given to the other side to meet
with the same. The Supreme Court held that the principles of natural justice were being
violated. Thus it is necessary that the adjudicating authority must disclose the evidence
which it wants to utilize against the person concern and also give him an opportunity to
rebut the same.
For making the opportunity to rebut evidence meaningful, it is necessary to consider two factors:
Cross- Examination and Legal Representation.

CROSS EXAMINATION

23

Cross-examination is used to rebut evidence or elicit and establish truth. In administrative

adjudication, as a general rule, the courts do not insist on cross-examination unless the
circumstances are such that in the absence of it, an effective defence cannot be put up. The SC
disallowed cross-examination in State of J&K Vs. Bakshi Gulam Mohammed68 on the ground
that the evidence of witness was in the form of affidavits and the copies had been made available
to the party.
In Town Area Committee Vs. Jagdish Prasad 69, the department submitted the charge, got an
explanation and thereafter straightaway passed the dismissal order. The court quashed the order
holding that the rule of fair hearing includes an opportunity to cross-examine the witness and to
lead evidence.
In Hira Nath Misra Vs. Principal, Rajendra Medical College 70 the court disallowed the
opportunity of cross-examination on the grounds of practicability. The SC rejected the contention
of the appellants that they were not allowed to cross-examine the girl students on the ground that
if it was allowed no girl would come forward to give evidence, and further that it would not be
possible for the college authorities to protect the girl students outside the college precincts.

67. AIR 1966 SC 573

68. AIR 1967 SC 122
69. AIR 1978 SC 1407
70. AIR 1973 SC 1260

Where, however, witnesses depose orally before the authority, the refusal to allow crossexamination would certainly amount to violation of principles of natural justice.
It can thus be concluded that right to cross-examine is an important part of the principle of fair
hearing but whether the same should be allowed in administrative matters mainly depends on the
facts and circumstances of the case.

RIGHT OF LEGAL REPRESENTATION

Legal representation is not considered as an indispensable part of the rule of fair hearing in
administrative proceedings. This denial of legal representation is justified on the ground that
a) the lawyers tend to complicate matters, prolong hearings and destroy the essential informality
of the hearings.
b) it gives and edge to the rich over the poor who cannot afford a good lawyer.

24

Whether legal representation is allowed in administrative proceedings depends on the provisions

of the statute. Factory laws do not permit legal representation, Industrial Disputes Act allows it
with the permission of the tribunal and some statutes like Income Tax permit representation as a
matter of right.
The courts in India have held that in following situations, some professional assistance must be
given to the party to make his right to defend himself meaningful :
a) Illiterate
b) Matter is technical or complicated
c) Expert evidence is on record
d) Question of law is involved
e) Person is facing trained prosecutor
The courts have observed in few cases that it would be improper to disallow legal representation
to the aggrieved person where the State is allowed to be represented through a lawyer. In
Nandlal Bajaj Vs. State of Punjab,71 the court allowed legal representation to the detainee
through a lawyer despite Section 8(e) of COFEPOSA specifically denied legal representation in
express terms because the State had been represented through a lawyer.

71. 1981 AIR 2041, 1982 SCR (1) 718

In Board of Trustees, Port of Bombay Vs. Dilip Kumar 72, a request of delinquent employee
for legal representation was turned down as there was no provision in the regulations. During the
course of enquiry, the regulation was amended giving powers to Enquiry Officer to allow legal
representation. The court held that this question whether legal representation should be allowed
to the delinquent employee would depend on the fact whether the delinquent employee is pitted
against legally trained mind. In such a case, denial of request to engage a lawyer would result in
violation of essential principles of natural justice.
Following this case, the SC in J.K.Aggarwal Vs. Haryan Seeds Development Corporation
Limited73 held that refusal to sanction the service of a lawyer in the enquiry was not a proper
exercise of the discretion under the rule resulting in failure of natural justice; particularly in view
of the fact that the Presenting Officer was a person with legal attainments and experience.

REQUIREMENT OF PASSING A SPEAKING OR REASONED ORDER

25

In India, unless there is specific requirement of giving reasons under the statute, it is not
mandatory for the administrative agencies to give reasons for their decisions.
Reasons are the link between the order and mind of the maker. Any decision of the
administrative authority affecting the rights of the people without assigning any reason
tantamounts to violation of principles of natural justice.
The requirement of stating the reasons cannot be under emphasized as its serves the following
purpose: 1. It ensures that the administrative authority will apply its mind and objectively
look at the facts and evidence of the case.
2. It ensures that all the relevant factors have been considered and that the irrelevant
factors have been left out.
3. It satisfies the aggrieved party in the sense that his view points have been
examined and considered prior to reaching a conclusion.
4. The appellate authorities and courts are in a better position to consider the appeals
on the question of law.

72. AIR 1983 SC 109

73. 1991 AIR 1221

In short, reasons reveal the rational nexus between the facts considered and the conclusions
reached.
However, mere recording of reasons serves no purpose unless the same are communicated either
orally or in writing to the parties. In fact mere communication of reasons has no meaning unless
the corrective machinery is in place.
Whether the reasons should be recorded or not depends on the facts of the case.
In Tarachand Vs. Municipal Corporation,74 an assistant teacher was dismissed on the ground
of moral turpitude. The Enquiry fully established the charge. The Asst. Education Commissioner
confirmed the report w/o giving reasons. The SC held that where the disciplinary authority
disagrees with the report of the enquiry officer, it must state the reasons.
In other words, the citing of reasons is not mandatory where the disciplinary authority merely
agrees with the report of enquiry officer.

26

S.N.Mukherjee Vs. UOI 75

Issue
Whether it was incumbent upon the Chief of Army Staff to record the reasons of the
orders passed by him while confirming the findings and the sentence of the CG
Observed
SC observed that
The requirement to record reasons could be regarded as one of the principles of
natural justice.
An administrative authority must record the reasons in support of their decisions,
unless the requirement is expressly or by necessary implication excluded.
The reasons cited would enable the court to effectively exercise the appellate or
supervisory powers.
The giving of reasons would guarantee consideration of the matter by the
authority.
________________________________________________________________________
74. 1977 AIR 567, 1977 SCR (2) 198
75. 1990 AIR 1984, 1990 SCR Supl. (1) 44

The reasons would produce clarity in the decisions and reduce arbitrariness.
Held
U/s 162 of the Army Act, the reasons have to be reached only in cases where the
proceedings of a summary court martial are set aside or the sentence is reduced and not
when the findings and sentence are confirmed. Thus requirement of recording reasons
cannot be insisted upon at the stage of consideration of post-confirmation petition by the
CG.

Mahindra & Mahindra Vs. UOI 76

Order passed by MRTPC, a quasi judicial body - Clauses in agreement with the dealers
are found to be offensive and resulting in RTP - No reasons were cited - Co. filed appeal
before SC - SC held that the order suffers from an error of law apparent from the face of
it as no reasons have been given.

REPORT OF ENQUIRY REPORT TO BE SHOWN TO THE

OTHER PARTY

27

Whether a copy of enquiry report must be submitted to the delinquent employee before
passing the order?
Until 1987, there was no precedent or law which made it obligatory, in all cases, for the
disciplinary authority to serve a copy of the enquiry report on the delinquent before
reaching a final decision. For the first time in 1987, full bench of CAT held that failure to
supply a copy of the enquiry report to the delinquent before recording a finding against
him is obligatory and failure to do so would vitiate the enquiry. (P,K,Sharma Vs, UOI)

76. 1984 (18) ELT 262 Bom

The SC in 1973 considered this question in Keshav Mills Co. Ltd. Vs. UOI.77
Facts
Appellant Co. after doing business for 30 years closed down. 1200 persons unemployed On the basis of commission to enquire into the affairs of the co. u/s 15 of IDRA, GOI
passed an order u/s 18-A to take over the mill. . Challenged before SC on the ground that
enquiry report not submitted
Held
Not possible to lay down general principle on this Q.
Answer depends on facts and circumstances of each case
If the non-disclosure of the report causes any prejudice in any manner to the party, it
must be disclosed, otherwise non-disclosure would not amount to violation of
principles of natural justice.
In UOI Vs. Mohd. Ramzan Khan (1991) a bench of f 3 judges held that non-furnishing of the
enquiry report would amount to denial of the principles of natural justice.

Cases in which the rule of natural justice (Audi alteram

partem) is inapplicable :
(i)

Delegated Legislation

28

It has been held failure to comply with the rules of natural justice in course of making delegated
legislation78. The reasons are delegation legislation tends to affect large number of people, and if
all had a right to be heard system would grind to halt for lack of time and money furthermore the
process of delegated legislation seen as part of political rather than judicial system.

77. 1973 AIR 389, 1973 SCR (3) 22

78. Bates v. Lord Haislam (1972) 1 WLR 298, 308

(ii)

Master and servant.

As matter of simple contract of, a servant can be dismissed without hearing 79. One reason
appears that a servant owe duty only to his master, not to the public at large, and so there is no
relevant public interest which would justify an application of requirements of natural justice
which is seen as a part of public law in broad sense.
(iii)

Exclusion by statute.

It is worth noting that the enactment of procedural rules which parties feels to be fair can go a
long way to reduce the complaints on the ground of procedure. Statutes sometimes allow a
person to act as decision maker despite of his having the interest in the outcome. The statute may
explicitly that the statutory code to apply to the exclusion of natural justice.

(iv)

Preliminary hearing.

A decision will not generally be invalidated for failure to give reasoning is merely preliminary to
a later decision for which the hearing must be given; preliminary in the sense that no issue will
be conclusively settled by earlier hearing in a such way to prevent its being raised at later
hearing.

How then have the principles of natural justice been interpreted in the Courts
and within what limits are they to be confined?

29

Over the years by a process of judicial interpretation two rules have been evolved
as representing the principles of natural justice in judicial process, including therein quasijudicial and administrative process. They constitute the basic elements of a fair hearing, having
their roots in the innate sense of man for fair-play and justice which is not the preserve of any
particular race or country but is shared in common by all men. The first rule is nemo judex
in causa sua or nemo debet esse judex in propria causa sua as stated in (1605) 12
Co.Rep.114 that is, no man shall be a judge in his own cause. Coke used the form aliquis non
debet esse judex in propria causa quia non potest esse judex at pars (Co.Litt. 1418), that is, no
man ought to be a judge in his own case, because he cannot act as Judge and at the same time be
a party. The form nemo potest esse simul actor et judex, that is, no one can be at once suitor
and judge is also at times used. The second rule is audi alteram partem, that is, hear the other
side.

79. Ridge v. Baldwin (1964) AC 40

At times and particularly in continental countries, the form audietur at altera pars is used,
meaning very much the same thing. A corollary has been deduced from the above two rules and
particularly the audi alteram partem rule, namely qui aliquid statuerit parte inaudita alteram
actquam licet dixerit, haud acquum facerit that is, he who shall decide anything without
the other side having been heard, although he may have said what is right, will not have been
what is right (See Bosewells case (1605) 6 Co.Rep. 48-b, 52-a) or in other words, as it is now
expressed, justice should not only be done but should manifestly be seen to be done.

Conclusion
To sum up, one finds that Initially the principles of natural justice used to be applied to courts of
law alone but later on from judicial sphere it extended, to the tribunals exercising quasi-judicial
functions and then to the statutory authorities and the administrative authorities, who have upon
them, the responsibility of determining civil rights or obligations of the people.
In normal conditions, an action or a decision, judicial or administrative, affecting rights of an
individual and resulting in civil consequence is unthinkable. In the present day, without affording
hearing by an unbiased and impartial authority who must act objectively and must also give out

30

his mind, as to what weighed in decision making process, by incorporating reasons to support the
decision or, to say so, by giving a speaking order. This is necessary for a society, which is
governed by Rule of law. How substantive laws are applied and rights are determined is a
question not less important, to say it again, the principles of -natural justice are great humanising
principles intended to invest law with fairness to secure justice and to prevent miscarriage of
justice.

http://ilawadvocates.blogspot.in/2012/05/audi-alteram-partem.html
http://www.manipurtimes.com/news-article/the-peoples-chronicle-article/item/1511principle-of-natural-justice-audi-alteram-partem.html
http://legalperspectives.blogspot.in/2010/07/audi-alteram-partem-naturaljustice.html
http://socyberty.com/law/audi-alteram-partem/
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http://www.lexvidhi.com/article-details/principles-of-natural-justice-457.html
http://tnkpsc.com/resource/Image/PRINCIPLESOFNATURALJUSTICE.pdf
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%20partem. http://www.legalserviceindia.com/article/l25-Nemo-in-propria-causa-judex,-esse-debet-THERULE-AGAINST-BIAS.html