Audi Alteram Partem – Meaning, Elements and Exemptions

Introduction

“That suffer not myself to be prepossessed with any judgement at all, till the whole business and both the parties to be heard.” These are the excerpts from a series of 18 rules to govern the conduct as a judge by Sir. Mathew Hale, the chief justice of King’s Bench during the tenure 1671-1676. From the second half of the sixth rule out of eighteen, which states: “ both the parties to be heard”, we can derive insight on the Latin phrase  “Audi alteram partem”, which means listen to the other side or let the other side be heard as well.

The idea of the maxim is to provide an opportunity for both the parties to respond against the evidence through which the judgements are made with an absolute fair hearing. The principle of natural justice is not only a part or a provision in the constitutional law of the United Kingdom and many other legal systems but also been stated in arthashastra and in other religious texts like the Bible and Hadiths.

In hadith number 3575 it is stated that:

 “When two litigants sit in front of you, do not decide till you hear what the other has to say as you heard what the first had to say, for it is best that you should have a clear idea of the best decision”.

And even in the bible, Adam and Eve were given a fair opportunity to defend themselves. The Greeks and Romans were also aware of this concept.

In the case of Indian law, the rule of natural justice was derived from article 14 and article 21 of the constitution.  Article 14 says about equality. While article 21 enshrines about right to life and personal liberty which is clearly defined in the case, Maneka Gandhi vs. union of India[1].

And it was during the course of evolution, the phrase Audi alteram partem was accepted by English jurists and is one among the two guiding principles of natural justice.

Natural Justice

As its name refers, it is a law of nature, which is not derived from any constitution or statute. It is a law of equity, fairness and reasonability. The two core principles of natural justice are:

  1. Nemo debet esse judex
  2. Audi alteram partem

Nemo debet esse judex:

it is also known as the rule of bias or doctrine of bias. It means the member of the judiciary should be impartial and should act with no bias.  As it referred in sixth out of eighteen rules by sir. Mathew hale: “that I suffered not myself to be prepossessed with any judgements at all”, It natural for judges, being individuals to have views, opinions, desires and interests but it’s mandatory for any member of the judiciary to not to get propounded towards a particular party or not to arrive at his own conclusion before hearing both the parties and confronting the evidence. The idea of this maxim was evolved from the case:

Metropolitan properties co (FGC) ltd vs. lannon[2], where the court had held the grounds of disqualification of a member of judiciary:

  1. Direct pecuniary interest
  2. For showing bias towards a particular party

Audi Alteram Partem

It embodies the concept that no person should be censured from the right to defend himself and to be heard during the process of judgement. It is a fundamental aspect of a fair procedure to hear both sides. Other than being considered as a hallmark of individual right, the right to be heard is also been considered as a tool to build a fair administrative procedure by courts. The judgement will be only legally valid if it had provided both the parties a fair chance to defend themselves.

Main Elements Of Audi Alteram Partem

1. Notice: no decisions can be made during the course of judgement without providing a notice towards the parties denoting the relevant information like:

  1. Date of hearing
  2. Time of hearing
  3. Place of hearing
  4. Charges against the person
  5. Jurisdiction under the case is filed

Both the parties should be aware of the information’s regarding the case. The order will be held invalid if any of this relevant information is not referred to in the notice.

Case laws:

Punjab national bank v. all India bank employees federation[3]: In this case, the notice consisted of the charges against the person, but lacked the information regarding the penalty imposed. So the court proposed the notice to be improper. Therefore the order passed is held to be invalid.

Abdul Latif V. Commr[4]: in this case, the notice was considered to be improper as there wasn’t any information regarding the property specified to be acquired. Due to irrelevant information, the order passed was held invalid.

2. Hearing: It is the fundamental aspect of Audi alteram partum to hear both sides before passing any judgements. The authorities are bounded to ensure that a fair chance is provided to the parties to defend themselves.

Case laws:

Harban Lal. v. commissioner[5]: in this case, it was stated that fair hearing is an essential ingredient of Audi alteram partum. It is the duty of the authorities to ensure that the parties are provided with an opportunity to attend a written or oral hearing.

Union of India v. J.P. mitter[6]: in this case, it ensures a fair chance to make written opportunities instead of personal hearing or oral.

3. Evidence: It is an important aspect during the course of the judgement. It is produced before the court during the presence of the parties and the decisions are made by the member of the judiciary or quasi-judicial authority.

Case laws:

Hira Nath vs. principal[7]: in this case, it was stated that the evidence is not restricted to formal evidence but also includes any information on previous conviction on which the court can rely without providing the affected party, a chance to deny it.

Stafford v. minister of health: in this case, it is held that no evidence should be produced without the presence of both parties. If any such evidence is produced, the authority should ensure that the same is made available for both parties.

4. Cross-Examination: The court, during a fair hearing may not be able to disclose the person concerned or the material taken against him, but should give him a chance to refute the evidence. The major question raised before the adjudicating authority is that the witness should be cross-examined or not.

Case laws:

Kanungo& co. V. collector of customs[8]: in this case, the business property of an individual was searched and some watches were seized by police under the sea customs act. The person who provided the information wasn’t allowed for cross-examination. But here, the principle of natural justice isn’t violated in the case of goods seized under the sea customs act. Because natural justice doesn’t allow the concerned person to cross-examine against the witness.

5. Legal representation: In a fair hearing, representation through a lawyer is not considered to be mandatory. But in some cases, if legal representation is not allowed then it will amount to infringement of the rule of natural justice.

Case laws:

Krishna Chandra .V. Union of India[9]: in this case, the party was denied legal representation and amounted to a violation of the law of natural justice as the party wasn’t able to understand the question of law effectively.

Exemptions In Audi Alteram Partem

The cases where exemptions provided to the rule of natural justice are rare. But there are few situations where no unfair means can be inferred and the opportunity of fair hearing can be excluded. Such situations are:

1. Statutory Exclusions: in this case omission of the right of hearing will not amount to a violation of the rule of natural justice. Because here a statute can omit the rule of natural justice explicitly or implicitly but such statute might get challenged under article 14. So, the omission should be justifiable.

Case law:

Charan Lal Sahu vs. union of India[10]: the case is popularly known as the Bhopal gas tragedy. In this case, the central government was appointed as a representative of victims of the tragedy regarding the matter of compensation under the Bhopal gas disaster (processing of claims) Act, 1985. But later, the constitutional validity of the act was challenged by the victims by stating that the 22% of share at union carbide company was held by the central government and it will amount the government to be the joint tortfeasor. Thus removing the central government to be the representative of the victims. The Supreme Court held that even though the statement is true, no other sovereign body can be a representative of the victims. The doctrine of necessity is applied here.

2. Legislative Functions: the rule of natural justice is not applicable to legislative actions because these policies under the rule are not subjected to a particular individual. An action is said to be legislative in nature, if it is not applicable to just one or two individuals. Similarly, the principles of natural justice can also be excluded from certain provisions of constitution as well. The application of natural justice is excluded from article 22, article 31(A),(B),(C) and 311(2)  of the  Indian constitution as a matter of policy. If the court found the application of legislative functions to be unreasonable, arbitrary and unfair, the court may scrap such provision under article 14 and article 21 of the Indian constitution.

Case law:

Charan Lal Sahu vs. union of India: In this case, the Bhopal gas disaster (processing of claims) Act, 1985 was involved. The detail regarding the compensation is provided in this legislation. The victims approached the honourable Supreme Court and stated that no hearing was conducted and thus it is a violation of Audi alteram partem. But the court held that: “for the legislation by the parliament no principle of natural justice is attracted, provided such legislation is within the competence of legislation”.

3. Impracticability: the rule of natural justice can be followed when it is practical to follow it but in certain cases where it is impracticable to follow the rule of natural justice then it can be excluded.

Case laws:

Bihar school examination board vs. Subhash Chandra[11]: in this case, the board conducted the final examination of 10th grade in various centres. But in a particular centre, there were over 1000 candidates sat for the examination. The chances for mass copying were high. After the evaluation, the situation of mass copying was proved when most of the students secured the same marks. The situation forced the examination board to squash the examination and announce a new one without a prior hearing. This made the students approach the Patna high court stating that no opportunity for a fair hearing was conducted regarding the squashing of examination. The Patna high court struck down the decision of board under the violation of Audi alteram partem. Dissatisfied with the judgement of the high court the examination board approached the supreme court where the court rejected the judgement of the high court by stating the impracticability in sending notices, providing the opportunity of hearing, rebuttal, cross-examination etc. for over 1000 individuals.

4. Academic Evaluation: if the power of authority is completely administrative then the rule of natural justice can be excluded.

Case laws:

Jawaharlal Nehru University vs. B.S. Narwal[12]: in this case, a student named B.S. narwal was expelled from the class by his scholar due to poor performance in academics without any prior hearing. The honourable Supreme Court stated that the idea of academic adjudication seems to be negative. So, if the competent scholar recognised the work of the student during the course of the academic period to be unsatisfactory, the principle of natural justice can be excluded.

5. Interdisciplinary Action: no rule of natural justice applicable in any situations of interdisciplinary actions like suspension.

Case law:

S.A. Khan vs. State of Haryana[13]:  Mr. Khan, was suspended from the post of deputy inspector general, Haryana due for various reasons. He filed a suit at Supreme Court by stating that he was not provided with the right of fair hearing. But the court held that in case of any interdisciplinary action there is no requirement of hearing.

Conclusion

As just like the phrase says: “Rome wasn’t built in a day”, democracy wasn’t established overnight. It was formed as a result of shedding a lot of blood and sweat. Each and every individual in a democratic society have the right to speak and to be heard. And it was due to the evolution of natural justice, the idea of the Latin phrase: Audi alteram partem came to existence. The real essence of the maxim is that every individual is equal in the eyes of law and everyone has the right to speak and to be heard before passing any orders on them. So, we can conclude that the real core of the phrase is equity, fairness and reasonability.

[1] (1615) 11 CO. Rep 93b: 8 digest 218

[2] [1968] 3 ACR ER 304

[3] A.I.R. 1971 S.C. 389

[4] A.I.R. 1973 Punj. 263 33

[5] A.I.R. 1994 S.C. 39

[6] 1971 A.I.R 1093, 1971 SCR (3) 483

[7] A.I.R. 1973 S.C. 1260

[8] A.I.R. 1972 S.C. 2136

[9] A.I.R. 1974 S.C. 1589

[10] A.I.R 1990 S.C. 1980

[11] 1970 A.I.R. 1269

[12] [1980] 4 SCC 480

[13] A.I.R. 1993 SC 1152

This article has been written by Nourien Nizar, 1st Year B.com LLB (Hons) student at Government Law College, Ernakulam, Kerala.

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