PROJECT ON PRINCIPLE OF NATURAL JUSTICE

SUBMITTED BY
KRITIKA MAHAJAN
10LLB010

ACKNOWLEDGEMENT
This report is an effort made by me with the astute guidance of my teacher P. His valuable inputs
and constant encouragement has inspired me to carry out this research fruitfully. He gave me his
valuable time to discuss the facets of this topic and guided me towards an enlightening and
holistic research.
I am indebted towards Prof Pant for providing me an opportunity to have a learning experience

KRITIKA MAHAJAN

MEANING AND EVOLUTION OF NATURAL JUSTICE

Justice is of two types namely Legal Justice and Natural Justice. Legal justice refers to justice
governed by the law of the state and natural justice refers to moral justice and is governed by the
Laws of Equity. Justice done to one should not seem injustice to another. So the goodness of a
law is in maximizing the pleasure of the beneficiaries with minimized pain to the others.
This concept has its origins in the English law and reflects the close connection between
common law and moral principles. The expressions natural justice and legal justice do not
present a watertight classification. It is the substance of justice which is to be
secured by both, and whenever legal justice fails to achieve this purpose, natural justice is called
in aid of legal justice. Rules of natural justice have developed with the growth of civilisation, and
the content thereof is often considered as a proper measure of the level of civilisation and rule of
law prevailing in the community.
According to Aristotle, law inspired by reason is the natural law and whenever the general
preposition of legal law is found to work hardship to a particular case, equity must be applied to
mitigate and rectify the harshness. Its the natural law that provides the frame work of principles
and it is left to the legal law to supply flesh and blood to the legal system. The underlying object
of natural justice is not only to secure justice, but also to prevent miscarriage of justice, thus
ensuring that fundamental liberties and rights of citizens are well-protected. Principles of natural
justice constitute one of the most important concepts of administrative law. The expression
natural justice has been interpreted to cover several rules of equity and fair play and is sometimes
also referred to as substantial justice universal justice and fair play in action. In order to protect
himself against the excesses of organised power, man has always appealed to someone beyond
his own creation. Such someone could only be God and His laws, divine law or natural law, to
which all temporal laws and actions must conform. This is the origin of the concept of natural
justice. However, natural justice is not justice of the nature where the lion devours the lamb and
the tiger feeds upon the antelope. Natural justice is of the higher law of nature or natural law
where the lion and the lamb lie down together and the tiger frisks with the antelope. Its essence is
good conscience in a given situation; nothing more and nothing less.

Rules of natural justice are not codified cannons. They are principles ingrained in the conscience
of man. Justice is based substantially on natural ideas and values which are universal. What
particular form of natural justice should be implied and what its extent should be in a given case
must depend to a great extent on the facts and circumstances of that case and the framework of
the statute under which an action is taken.
Earliest expression of natural justice could be found in philosophical expression of roman jurists
( jus naturale) and signified rules and principles for the conduct of man, which were independent
of enacted law or customs and could be discovered by the rational intelligence of man and would
grow out of and conform to his nature which meant the whole mental, moral and physical
constitution of man. The basis of the principles of natural justice is rule of law. The observance
of these principles is demanded by our sense of justiceto which the total system of governance
must conform. Natural justice has meant many things to many writers, lawyers and systems of
law. It is used interchangeably with divine law, viz. jus gentium the common law of England,
Due process of the U.S., Dharma of India and Proportionality of the civil -law system. It is
a concept of changing content. However, this does not mean that at any given time, no fixed
principles of natural justice can be identified. The principles of natural justice through various
decisions of courts can be easily ascertained, through their application in a given situation may
depend on multifarious factors. For fairness itself, it is a flexible, pragmatic and relative concept,
not a rigid, ritualistic or sophisticated abstraction.
Natural justice contents yield to change with exigencies of different situations, and therefore, do
not apply in the same manner to situations which are not alike. They are neither cast in a rigid
mould nor can they be put in legal straitjacket. They are not immutable and
can be adapted, modified, and excluded bystatute, rules of the Constitution; except where such
exclusion is not charged with the vice of unreasonableness and consequential voidness
In a famous English decision in Abbott vs. Sullivan1 it is stated that the Principles of Natural
Justice are easy to proclaim, but their precise extent is far less easy to define. It has been stated
that there is no single definition of Natural Justice and it is only possible to enumerate with some
certainty the main principles. During the earlier days the expression natural Justice was often
1 (1952) 1 K.B.189 at 195

used interchangeably with the expression natural Law, but in the recent times a restricted
meaning has been given to describe certain rules of Judicial Procedure
Natural justice or procedural fairness is a legal philosophy used in some jurisdictions in the
determination of just, or fair, processes in legal proceedings. Natural justice operates on the
principles that man is basically good and therefore a person of good intent should not be harmed,
and one should treat others as one would like to be treated. Natural Justice imposes a code of fair
procedure, including the right to be given a fair hearing and the opportunity to present ones case,
the right to have a decision made by an unbiased or disinterested decision maker and the right to
have that decision based on logically probative evidence. Natural justice in essence could just be
referred to as Procedural Fairness, with a purpose of ensuring that decision-making is fair and
reasonable. The principles of Natural Justice are a part of the legal and judicial procedures and it
comprises of two concepts, namely (a) Audi alteram partem, or the right to fair hearing (b) Nemo
judex in sua causa, or the no man can be a judge in his own cause

1.1 How the expression Natural Justice came ?

In Maclean vs. The Workers Union2 it has been stated as follows

The phrase is, of course, used only in a popular sense and must not be taken to mean that there
is any justice natural among men. Among most savages there is no such thing as Justice in the
modern sense. In ancient days a person wronged executed his own justice. Amongst our own
ancestors, down to the thirteenth century, manifest felony, such as that of a manslayer taken with
his weapon, or a thief with the stolen goods, might be punished by summary execution without
any form of trial. Again, every student has heard of compurgation and of ordeal; and it is hardly
necessary to observe that (for example) a system of ordeal by water in which sinking was the
sign of innocence and floating the sign of guilt, a system which lasted in this country for
hundreds of years, has little to do with modern ideas of justice. It is unnecessary to give further
illustrations. The truth is that justice is a very elaborate conception, the growth of many

2 (1929) 1 Ch. 602, 624

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.
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.
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.

NEMO DEBET ESSE JUDEX IN PROPRIA CAUSA

The principal requirement of this rule is that the person who judges- whether he is a judge or an
administrative authority- should be impartial and free from any kind of bias. He cannot
adjudicate a cause in which he himself has any kind of interest. It is only if he is neutral that he
can decide the matter objectively. The object is not merely that the scales (of justice) be held
evenly, but it is also necessary that they may not appear to be inclined.
If a judge or adjudicating authority is biased either in favour of one party or against the other, he
cannot be expected to do justice in the matter. Such a person is disqualified from adjudicating
and since such proceedings stand vitiated, any decision taken by him is liable to be set aside.
This maxim is based on three well-known principles, viz:

No man can be a judge and prosecutor at the same time.

It is not enough that justice is done; it is also necessary that it must be seen to be done
Judges should always be above suspicion

Rule against bias

This principle embodies the basic concept of impartiality, and applies to courts of law, tribunals,
arbitrators and all those having the duty to act judicially. A public authority has a duty to act
judicially whenever it makes decisions that affect people's rights or interests, and not only when
it applies some judicial-type procedure in arriving at decisions.
The basis on which impartiality operates is the need to maintain public confidence in the legal
system. The erosion of public confidence undermines the nobility of the legal system, and leads
to ensuing chaos. The essence of the need for impartiality was observed by Lord Denning, the
Master of the Rolls, in Metropolitan Properties Co. (F.G.C.) Ltd. v. Lannon (1968): "Justice must
be rooted in confidence and confidence is destroyed when right-minded people go away thinking:
'The judge was biased.'
Public confidence as the basis for the rule against bias is also embodied in the often-quoted
words of Lord Hewart, the Lord Chief Justice of England and Wales, that " it is not merely of

some importance, but of fundamental importance that justice should not only be done, but should
manifestly be seen to be done"

Audi alteram partem

Audi alteram partem is the basic concept of the principles of natural justice. It means that both
sides must be heard before passing any order. It signifies that no man can be condemned without
a hearing. It is a fundamental principle of natural justice that before an order is passed against a
person, he should be given an opportunity to be heard in the matter. In administrative law, this is
the principle which protects the individual from arbitrary administrative actions whenever his
right to person or property is jeopardised.. thus, one of the objectives of giving a hearing in
application of the principles of natural justice is to see that an illegal action or decision does not
take place. Any wrong order may adversely affect a person, and it is essentially for this reason
that a reasonable opportunity may have to be granted before passing an administrative order.
This principle has been applied to administrative actions to ensure fair play and justice to
affected persons. However, the doctrine is not the cure to all ills in the process. Its application
depends upon the factual matrix to improve administrative efficiency, expediency and to mete
out justice. The procedure adopted must be just and fair. The corollary deduced from this
principle is qui aliquid statuerit parte inaudita altera, aequum 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.) As stated earlier, this principle is not of
some importance but is of fundamental importance that justice should not only be done, but also
manifestly ad undoubtedly seem to be done. Practically speaking, this maxim covers two things:

Giving notice to the affected person

Giving him a fair hearing

Even if the legislature specifically authorises an administrative action without hearing, then,
except in cases of recognised exceptions, the law would be violative of the principles of fair
hearing, now also read into the Articles 14 and 21 of the Indian Constitution.

The court thus held that though the rules permit award of censure entry without notice and
hearing, yet the principles of natural justice should be read into such rules and no censure entry
can be awarded without any notice or hearing. However, refusal to participate in an enquiry
without a valid reason cannot be pleaded as a violation of natural justice at a later stage
Right to a Fair Hearing
2.1. At a Glance
The essentials of the rule of procedural fairness are as follows:

The respondent must be given full details of the accusations. That is, the factual issues
and allegations to be examined and discussed should be specified in sufficient detail to
enable adequate preparation of a defence and a reasonable opportunity of adequate

refutation
Relevant documents used in judgment on a case must be disclosed to both parties
Decisions to admit or exclude evidence should be based on whether it is relevant, reliable
and logically valid, capable of being tested in some form. The evidentiary basis for

determination in harassment and discrimination cases is

on the balance of probabilities as opposed to beyond all reasonable doubt.
There should not be undue delay in hearing the matter. (If acomplainant/respondent fails
to appear on a number of occasions the case might be determined on the evidence of the

party appearing).
Notice of a hearing or conciliation conference should be serviced on the parties with
reasonable time to enable them to prepare their case. The time and place must be clearly

specified.
Unless there are exceptional circumstances, do not hear one side in the absence of the

other. Give each party the opportunity to state their case adequately.
Give each party the opportunity to correct or contradict any statement prejudicial to their
case. Witnesses, if any, should be examined or questioned and allowed to be
questioned by the other party. Adequate time should be allowed for this cross

examination.
If there are different allegations by different complainants against the same respondent in
the same subject area, it may be a breach of procedural fairness to hear the evidence or
allegations together rather than separately as one may unreasonably influence the other.

It is also improper in such a case to inform the complainants of the nature or details of
each others complaints.

Aspects of a fair hearing

Prior notice of hearing
Natural justice allows a person to claim the right to adequate notification of the date,
time, place of the hearing as well as detailed notification of the case to be met. This
information allows the person adequate time to effectively prepare his or her own case
and to answer the case against him or her. In Cooper v. Wandsworth, Chief Justice
William Erle went so far as to state that the lack of notice and hearing afforded to
Cooper could be said to be a form of abuse, as he had been treated as if he did not matter.
As Lord Mustill famously held in R. v. Secretary of State for the Home Department, ex
parte Doody (1993):
"Since the person affected usually cannot make worthwhile representations without
knowing what factors may weigh against his interests fairness will very often require that
he is informed of the gist of the case which he has to answer."
It has been suggested that the requirement of prior notice serves three
important purposes:
The interest in good outcomes giving prior notice increases the value of
the proceedings as it is only when the interested person knows the issues and therelevant
information that he or she can make a useful contribution.
The duty of respect the affected person has the right to know what is at stake,and it is
not enough to simply inform him or her that there will be a hearing.3.
The rule of law notice of issues and disclosure of information opens up theoperations of
the public authority to public scrutiny.
The British courts have held it is not enough for an affected person to merely be informed
of a hearing. He or she must also be told what is at stake; in other words, the gist of the
case.
Opportunity to be heard

Every person has the right to have a hearing and be allowed to present his or her own
case. Should a person not attend the hearing, even with adequate notice given, the
adjudicator has the discretion to decide if the hearing should proceed. In
Ridge v. Baldwin,a chief constable succeeded in having his dismissal from service
declared voidas he had not been given the opportunity to make a defence. In another case,
Chief Constable of the North Wales Police v. Evans (1982), a chief constable required a
police probationer to resign on account of allegations about his private life which he
was given no fair opportunity to rebut. The House of Lords found the dismissal to be
unlawful. Likewise in Surinder Singh Kanda v. Government of the Federation of Malaya
(1962),a public servant facing disciplinary proceedings was not supplied with a copy of a
prejudicial report by a board of inquiry which the adjudicating officer had access to befor
e the hearing. The Privy Council held that the proceedings had failed to provide hima
reasonable opportunity of being heard. However, this requirement does not necessarily
mean the decision-maker has to meet the complainant face to face "Natural justice does
not

generally

demand

orality".

It

has been suggested that an oral hearing will almost be as good as useless if the affected p
erson has no prior knowledge of the case. In Lloyd v. McMahon (1987),an oral hearing
did not make a difference to the facts on which the case was based. Giving judgment in
the Court of Appeal of England and Wales, Lord Justice Harry Woolf held that an oral
hearing may not always be the "very pith of the administration of natural justice".
It has also been suggested that an oral hearing is only required if issues concerning
deprivations of legal rights or legally protected interests arise.

Conduct of the hearing

When deciding how the hearing should be conducted, the adjudicator has to ask whether the
person charged has a proper opportunity to consider, challenge or contradict any evidence, and
whether the person is also fully aware of the nature of the allegations against him or her so as to
have a proper opportunity to present his or her own case.
In Secretary of State for the Home Department v. AF (2009), Lord Phillips of Worth Matravers
said:

The best way of producing a fair trial is to ensure that a party to it has the
fullest information of both the allegations that are made against him and the evidence
relied upon in support of those allegations. Where the evidence is documentary, he
should have access to the documents. Where the evidence consists of oral testimony, then
he should be entitled to cross-examine the witnesses who give that testimony, whose
identities should be disclosed.
The right to be heard in answer to charges before an unbiased tribunal is illustrated in the
Singapore case Tan Boon Chee David v. Medical Council of Singapore (1980).
During a disciplinary hearing, council members were either not conscientious about
their attendance or did not attend the whole course of proceedings. This meant they did not have
all the oral evidence and submissions. The High Court held that this had substantially prejudiced
the

appellant

and

constituted

fundamental

breach

of

natural justice. On the other hand, mere absence from a hearing does not necessarily lead toundu
e prejudice. It was held in Re Teo Choo Hong (1995)that the function of a lay member of a
lawyers' disciplinary committee was to observe and not cast a vote or make a judgment. Thus,
the appellant had not suffered undue prejudice
On the basis of reciprocity, if one side is allowed to cross-examine his legal opponent at a
hearing, the other party must also be given the same opportunity.
In addition, when a tribunal decides a case on a basis not raised or contemplated by the parties,
or decides it without regarding the submissions and arguments made by the parties on the issues,
this will amount to a breach of natural justice.
However, a genuine bona fide mistake by an adjudicator in omitting to state reasons for not
considering a submission is not enough to be a breach of natural justice. This may occur when
the submissions were accidentally omitted, or were so unconvincing that it was not necessary to
explicitly state the adjudicator's findings.
CONCLUSION
The principle of natural justice has developed into a universal jurisprudence for a number of
good reasons. Firstly, the age-old principle has been applied to administrative and adjudication

process to ensure procedural fairness and to free them from arbitrariness. Secondly, application
of this principle helps bolster public confidence in the judiciary by ensuring that no one having
any interest or bias in respect or any matter takes part in the decision-making relating to that
matter. Thirdly, it is often said that it 'is of fundamental importance that justice should not only
be done, but should manifestly and undoubtedly seen to be done'. By ensuring that the judge is
not interested in the outcome of any adjudication, the parties can 'see' that justice is being done to
their cause. In this regard, it should be noted that whether a judge gave an actually biased
judgment by judging his own cause is not material; the judgment is vitiated if there is a real
likelihood of the judge being biased, which can be easily presumed if the judge himself is the
aggrieved party. The development of this principle helps control arbitrary exercise of
discretionary power of adjudicating authorities almost all over the world