Submitted to:
Submitted by:
Aditi Gupta(7)
(COLS)
B.A LLB
VI SEM
NATURAL JUSTICE
In India there is no statute laying down the minimum procedure which administrative
agencies must follow while exercising decision-making powers. This minimum fair
procedure refers to the principles of natural justice.
The concept and doctrine of Principles of Natural Justice and its application in Justice
delivery system is not new. It seems to be as old as the system of dispensation of justice
itself. It has by now assumed the importance of being, so to say, "an essential inbuilt
component" of the mechanism, through which decision making process passes, in the matters
touching the rights and liberty of the people. It is no doubt, a procedural requirement but it
ensures a strong safeguard against any Judicial or administrative; order or action, adversely
affecting the substantive rights of the individuals.
In India, the principles of natural justice are firmly grounded in Article 14 & 21 of the
Constitution. With the introduction of concept of substantive and procedural due process in
Article 21, all that fairness which is included in the principles of natural justice can be read
into Art. 21. The violation of principles of natural justice results in arbitrariness; therefore,
violation of natural justice is a violation of Equality clause of Art. 14.
These two basic legal safeguards govern all decisions by judges or government officials
when they take quasi-judicial or judicial decisions.
Three common law rules are referred to in relation to natural justice or procedural fairness.
The Hearing Rule - Audi alteram partem - Hear the other party or the rule of fair hearing or
the rule that no one should be condemned unheard.
The Bias Rule - Nemo judex in causa sua - No one should be made a judge in his own
cause
This rule covers various stages through which administrative adjudication passes starting
from notice to final determination. Right to fair hearing thus includes:1. Right to notice
2. Right to present case and evidence
3. Right to rebut adverse evidence
(i) Right to cross examination
(ii) Right to legal representation
4. Disclosure of evidence to party
5. Report of enquiry to be shown to the other party
6. Reasoned decisions or speaking orders
This rule requires that a person must be allowed an adequate opportunity to present their case
where certain interests and rights may be adversely affected by a decision-maker.
To ensure that these rights are respected, the deciding authority must give both the
opportunity to prepare and present evidence and to respond to arguments presenting by the
opposite side.
When conducting an investigation in relation to a complaint it is important that the person
being complained against is advised of the allegations in as much detail as possible and given
the opportunity to reply to the allegations.
Held
The SC held that though the impoundment of the passport was an administrative action 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
In Board of Trustees, Port of Bombay Vs. Dilip Kumar 6 , 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
e\mployee 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. Haryana Seeds Development Corporation
Limited 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.
The right to consult a lawyer should be an unqualified right and should commence
immediately upon arrest. The rationale for such right, inter alia, is to ensure that an arrested
person may properly defend himself against his arrest and not merely when he is charged in
court
In the United States, the position is different. An arrested person has an immediate right to a
legal representation, and he must first be informed of his rights. Once the arrested person
insists or requests for a counsel, then all police investigation must stop until legal
representation is made available. In the landmark decision of Miranda v Arizona7, it was
held that:
'the prosecution may not use statements, whether exculpatory or inculpatory stemming from
custodial interrogation of the defendant unless it demonstrates the use of procedural
safeguards effective to secure the privilege against self-incrimination. By custodial
interrogation, we mean questioning initiated by law enforcement officers after a person has
been taken into custody or otherwise deprived of his freedom of action in any significant
way. As for the procedural safeguards to be employed, unless other fully effective means are
devised to inform accused persons of their right of silence and to assure a continuous
opportunity to exercise it, the following measures are required. Prior to any questioning, the
person must be warned that he has a right to remain silent, that any statement he does make
may be used as evidence against him, and that he has a right to the presence of an attorney,
either retained or appointed. The defendant may waive effectuation of these rights I provided
the waiver is made voluntarily, knowingly and intelligently. If, however, he indicates in any
manner and at any stage of the process that he wishes to consult with an attorney before
speaking, there can be no questioning. Likewise, if the individual is alone and indicates in
any manner that he does not wish to be interrogated, the police may not question him. The
mere fact that he may have answered some questions or volunteered some statements on his
own does not deprive him of the right to refrain from answering any further inquiries until he
has consulted with an attorney and thereafter consents to be questioned.'
7 384 U.S. 436 (1966)
Another important aspect under this right, which requires close scrutiny, is the fact the
arrested person has the right to consult his lawyer in private and in full confidentiality.
According to Principle 18 in the Body of Principles For the Protection of All Persons
Under Any Form of Detention or Imprisonment, a document adopted by the United
Nations General Assembly:
'1. A detained or imprisoned person shall be entitled to communication and consult with his
legal counsel.
2. A detained or imprisoned person shall be allowed adequate time and facilities for
consultation with his legal counsel.
3. The right of a detained or imprisoned person to be visited by and to consult and
communicate, without delay or censorship and in full confidentiality, with legal counsel may
not be suspended or restricted save in exceptional circumstances, to be specified by law or
lawful regulations, when it is considered indispensable by a judicial or other authority in
order to maintain security and good order.
4. Interviews between a detained or imprisoned person and his legal counsel may be within
sight, but not within the hearing of a law enforcement official.
5. Communication between a detained or imprisoned person and his legal counsel mentioned
in the present principle shall be inadmissible as evidence against the detained or imprisoned
person unless they are connected with a continuing or contemplated crime.'
The above principle, to a certain extent has been adopted and enacted under Rule 101 (2) of
the Prisons Regulations 2000, which provides that: 'Reasonable facilities shall be accorded to
the legal adviser of a prisoner who is conducting any legal proceedings, civil or criminal, in
which the prisoner is a party, to see the prisoner with reference to such proceedings in the
sight,
but
not
in
the
hearing,
of
prison
officer.'
Therefore, in cases where a person has been arrested under the provision of the Criminal
Procedure Code, the arrested person will be allowed to consult his lawyer in private. The
position, however, is different in cases where one is arrested and detained under the Internal
Security Act whereby the consultation with lawyers is made within sight and hearing of the
detaining authority.