“If you are a man who leads, Listen calmly to the speech of one who pleads; Don’t stop him from purging his body Of that which he planned to tell. A man in distress wants to pour out his heart More than that his case be won. About him who stops a plea One says: “Why does he reject it?” Not all one pleads for can be granted, But a good hearing soothes the heart.”
The Instruction of Ptahhotep
(Egyptian, 6th Dynasty, 2300-2150 B.C.).
The features of the countries in the democratic shift are the change of the state institutions and legal framework determining the procedure. This includes the construction of the central administrative bodies that do not exist in the non-democratic countries responsible for the regulation of the free-market economy. It is natural for the legislator to project such institutions as modern, fully-professional and operative bodies empowered with the substantial tools to realise their functions. In particular they are expected to act promptly (without delay) and address the issues they are responsible for in the effective way.
In the countries of Central and Eastern Europe such institutions are responsible especially for the protection, in public interest, of free competition and consumers as well as regulation of the markets on which public services are provided such as energy, transportation and telecommunication market . It can be said that twenty years after the collapse of communism these institutions proved to be very useful from the point of view of the functions they serve. But the practices of the activity and legislative reforms of the regulatory administrative bodies have been very much focused on their effectiveness. They have been entitled to investigate and to sanction the misconduct of individuals and companies. And they have actually started imposing fines on the undertakings that were found in breach of substantial law such as the law on the protection of free consumption.
From the perspective of this article it is important to analyse if the approach has been balanced with the introduction of proper procedural guarantees in the proceedings before the regulatory administrative bodies. As their activity involves the interference with the rights and freedoms of private entities (especially undertakings), the values of the procedural fairness must be guaranteed. This means especially that the right to be heard, the right of defence, the right to equal treatment must be respected. Such administrative proceedings must also be scrutinized in all their aspects (factual and legal) by an independent court.
PROCEDURAL FAIRNESS: THEORETICAL MEANING
Procedural fairness is concerned with the procedures used by a decision-maker, rather than the actual outcome reached. It requires a fair and proper procedure be used when making a decision. The Ombudsman considers it highly likely that a decision-maker who follows a fair procedure will reach a fair and correct decision .
Every legal process can be seen not only from the perspective of its result but also from the point of view of the process in itself . Thus the process values has been distinguished “to refer to standards of value by which we may judge a legal process to be good as a process, apart from any “good result efficacy” It has also been noted that participants of the legal process assess it not only by its final result but also from the perspective of the respect for the process values .
Procedural fairness comprises two broad common law rules designed to ensure fair procedures are followed in the making of decisions which affect the rights, obligations or legitimate expectations of individuals. The two rules or limbs, expressed in traditional terms, are:
I. The decision maker must afford a “hearing” in appropriate circumstances; and
II. The decision maker should not be biased or seen to be biased.
From the basic understanding the procedural fairness means as the group of values that shall be protected by the legal guarantees provided in the procedural law .
PROCEDURAL FAIRNESS AS THE CONSTITUTIONAL PRINCIPAL
“Rules of natural justice are not embodied rules nor can they be elevated to the position of Fundamental Rights. Their aim is to secure justice or to prevent miscarriage of justice. These rules can operate only in areas not covered by any law validly made. They do not supplant the law but supplement it. If a statutory provision can be read consistently with the principles of natural justice, the courts should do so. But if a statutory provision either specifically or by necessary implication excludes the application of any rules of natural justice then the court cannot ignore the mandate of the legislature or the statutory authority and read into the concerned provision the principles of natural justice.” So also the right to be heard cannot be presumed when in the circumstances of the case there is paramount need for secrecy or when a decision will have to be taken in emergency or when promptness of action is called for where delay would defeat the very purpose or where it is expected.
The guarantee of equal protection applies against substantive as well as procedural laws . From the standpoint of the latter, it means that all litigants, who are similarly situated, are able to avail themselves of the same procedural rights for relief and for defence, without discrimination . Article 14 requires the observance of the principals of natural justice, including the requirement of reasoned decisions. The decision making process should be transparent fair and open . The right to get a fair trial is a basic fundamental/human right. Any procedure which comes in the way of a party in getting a fair trial would be violative of art. 14 The most important part of this is right to fair hearing.
RULE OF FAIR HEARING
In India, there is no particular statute, laying down the minimum standard, which the administrative bodies must follow while exercising their decision making powers. There is, therefore, a bewildering variety of administrative procedure. In some cases, the administrative procedure is controlled by the statute under which they exercise their powers . But in some cases, the administrative agencies are left free to device their own procedure . But the courts have several times reiterated that the administrative agencies must follow a minimum of fair procedure, while exercising their powers. This fair procedure is called the principles of natural justice.
The principles of natural justice have been developed by the courts, in order to secure fairness in the exercise of the powers by the administrative agencies. The principles of natural justice are the Common Law counterpart of the ‘due process of law’ in the Constitution of the United States. However wide the powers of the state and however extensive discretion they confer, the administrative agencies are always under the obligation to follow a manner that is procedurally fair.
In a case before the United States Supreme Court, a JACKSON J. said: ‘Procedural fairness and regularity are of the indispensable essence of liberty. Severe substantive laws can be endured if they are fairly and impartially applied’ .
‘The doctrine of natural justice seeks not only to secure justice but also to prevent miscarriage of justice’ . The norms of natural justice are based on two ideas:
I. audi alteram partem,- the person, who has to be effected by a decision has a right to be heard; and
II. nemo judex in re sua – the authority deciding the matter should be free from bias.
In India, the Supreme Court has reiterated that the principles of natural justice are neither rigid nor they can be put in a straight jacket but are flexible. In the case of R. S. Dass v. Union of India , the Supreme Court observed that:
“It is well established that rules of natural justice are not rigid rules, they are flexible and their application depends upon the setting and background of statutory provisions, nature of the right which may be affected and the consequences which may entail, its application depends upon the facts and circumstances of each case”.
The reason for the flexibility of natural justice is that the concept is applied to a wide spectrum of the decision-making bodies. The norms of reasonableness of opportunity of hearing vary from body to body and even case to case relating to the same body. The courts, in order to look into the reasonableness of the opportunity, must keep in mind the nature of the functions imposed by the statute in context of the right affected . The civil courts, in India, are governed in the matter of proceedings, through the Civil Procedure Code and the criminal courts, by the Criminal Procedure Code as well as the Evidence Act. But the adjudicatory bodies functioning outside the purview of the regular court hierarchy are not subject to a uniform statute governing their proceedings.
The components of fair hearing are not fixed but are variable and flexible. Their scope and applicability differ from case to case and situation to situation . In Mineral Development v. State of Bihar , the apex court observed that the concept of fair hearing is elastic and not susceptible of a precise and easy definition. The hearing procedures vary from the tribunal, authority to authority and situation to situation. It is not necessary that the procedures of hearing must be like that of the proceedings followed by the regular courts.
The objective of the giving the accused an opportunity of fair hearing is that an illegal action or decision may not take place. Any wrong order may adversely affect a person. The maxim implies that the person must be given an opportunity to defend himself. LORD HEWART rightly observed that “it is merely of some importance, but is of fundamental importance that justice should not only be done, but should manifestly and undoubtedly be seemed to be done” . In this regard the Dr. Bentley case needs to be elaborately discussed. In this case the Court of King’s Bench condemned the decision of the Cambridge University, of canceling the degree of the scholar, without giving him the opportunity to be reasonably heard.
In another landmark case of Olga Tellis v. Bombay Municipal Corpn. , the court held that even if the legislature authorises the administrative action, without any hearing, the law would be violative of the principles of fair hearing and thus violative of Articles 14 and 21 of the Indian Constitution. In Cooper v. Wandsworth Board of Works , BYLES J. observed that the laws of God and man both give the party an opportunity to defend himself. Even God did not pass a sentence upon Adam before he was called upon to make his defence.
Law envisages that in the cases classified as ‘quasi-judicial’, the duty to follow completely the principles of natural law exists. But the cases which are classified as the ‘administrative’, the duty on the administrative authority is to act justly and fairly and not arbitrarily. In R. v. Gaming Board Ex. p. Benaim Lord Denning held that the view that the principle of natural justice applied only to judicial proceedings and not to administrative proceedings has been over-ruled in Ridge v. Baldwin . The guidance that was given to the Gaming Board was that they should follow the principles laid down in the case of immigrants namely that they have no tight to come in, but they have a right to be heard. The Court held in construing the words the Board “Shall have regard only” to the matter specified, the Board has a duty to act fairly and it must give the applicant an opportunity of satisfying them of the matter specified in the section. They must let him know what their impressions are so that he can disabuse them. In the 1970 case of A. K. Karaipak v. Union of India , the Supreme Court made a statement that the fine distinction between the quasi-judicial and administrative function needs to be discarded for giving a hearing to the affected party. Before the Karaipak’s case, the court applied the natural justice to the quasi-judicial functions only. But after the case, the natural justice could be applied to the administrative functions as well.
COMPONENTS OF RIGHT TO BE HEARD
I. RIGHT TO NOTICE: The term ‘Notice’ originated from the Latin word ‘Notitia’ which means ‘being known’. Thus it connotes the sense of information, intelligence or knowledge. Notice embodies the rule of fairness and must precede an adverse order. It should be clear enough to give the party enough information of the case he has to meet . There should be adequate time for the party, so that he can prepare for his defencehbb. If the notice is a statutory requirement, then it must be given in a manner provided by law. Thus notice is the starting point in the hearing. Unless a person knows about the subjects and issues involved in the case, he cannot be in the position to defend himself. The notice must be adequate also. Its adequacy depends upon the case. But generally, a notice, in order to be adequate must contain following elements:
TIME, PLACE AND NATURE OF HEARING: Legal authority under which hearing is to be held. Statement of specific charges which the person had been charged with. The test of the adequacy of the notice will be whether it gives the sufficient information and material so as to enable the person concerned to prepare for his defence . There should also be sufficient time to comply with the requirements of a notice. Where a notice contains only one charge, the person cannot be punished for the charges which were not mentioned in the notice .
The requirement of notice can be dispensed with, where the party concerned clearly knows the case against it and thus avails the opportunity of his defence. Thus in the case of Keshav mills Co. Ltd. v. Union of India , the court upheld the government order of taking over the mill for a period of 5 years. It quashed the argument of the appellants that they were not issued notice before this action was taken, as there was the opportunity of full-scale hearing and the appellant did not want to know anything more.
II. RIGHT TO KNOW THE EVIDENCE AGAINST HIM: Every person before an administrative authority, exercising adjudicatory powers has right to know the evidence to be used against him. The court in case of Dhakeshwari Cotton Mills Ltd. v. CIT , held that the assesse was not given a fair hearing as the Appellate Income Tax tribunal did not disclose the information supplied to it by the departmtent. A person may be allowed to inspect the file and take notes.
III. RIGHT TO PRESENT CASE AND EVIDENCE: The adjudicatory authority must provide the party a reasonable opportunity to present his case. This can be done either orally or in written. The requirement of natural justice is not met if the party is not given the opportunity to represent in view of the proposed action. “The requirements of natural justice must depend on the circumstances of the case, the nature of the inquiry, the rules under which the tribunal is acting , the subject matter that is being dealt with, and so forth but, whatever standard is adopted, one essential is that the person concerned should have a reasonable opportunity of presenting his case .”
Courts have unanimously held that the oral hearing is not an integral part of the fair hearing, unless the circumstances call for the oral hearing. In Union of India v. J P Mitter , the court refused to quash the order of the President of India in respect of the dispute relating to the age of a High Court judge. It was held that where the written submission is allowed, there is no violation of natural justice, if the oral hearing is not granted.
IV. RIGHT TO CROSS-EXAMINATION: The right to rebut adverse evidence presupposes that the person has been informed about the evidence against him. Rebuttal can be done either orally or in written, provided that the statute does not provide otherwise. Cross examination is a very important weapon to bring out the truth. Section 33 of the Indian Evidence Act, 1972, provides for the rights of the parties to cross-examination. The cross-examination of the witnesses is not regarded as an obligatory part of natural justice. Whether the opportunity of cross examination is to be give or not depends upon the circumstances of the case and statute under which hearing is held. State of Jammu and Kashmir v. Bakshii Ghulam Mohd. , the Government of Jammu and Kashmir appointed a Commissioner of Inquiry to inquire into the charges of corruption and maladministration against the ex-Chief Minister of the state. He claimed the right to cross-examine the witnesses on the ground of natural justice. The Court interpreted the statute and held that only those witnesses who deposed orally against the chief Minister can be cross-examined and not of those who merely filed affidavits.
Similarly, in Hira nath mishra v. Rajendra medical College, Ranchi , some male students of medical college entered the girls’ hostel and misbehaved with the girls. An enquiry committee was set up against whom the complaints were made. The complainants were examined but not in presence of the boys. On the report of the committee, four students were expelled from the college. They challenged the decision of the committee on the ground of violation of the natural justice. The court rejected the plea and held that in presence of the boys, the girls cannot be cross-examined that that may expose them to the harassment.
V. RIGHT TO COUNSEL: For some time the thinking had been that the lawyers should be kept away from the administrative adjudication, as it saves time and expense. But the right to be heard would be of little avail if the counsel were not allowed to appear, as everyone is not articulate enough to present his case. In India few statutes like the Industrial Disputes Act, 1947, specifically bar the legal practitioners from appearing before the administrative bodies.
Till recently the view was that the right to counsel was not inevitable part of the natural justice. But this view has been almost done away with.
The Supreme Court of India ruled in Ali v. State of Assam that a criminal defendant has a right to counsel under Article 21 of the Constitution of India.
Article 21, Protection of life and personal liberty, provides: “No person shall be deprived of his life or personal liberty except according to procedure established by law”.
The Court described Article 21 as the “heart and soul” of fundamental rights and “the most important feature of our Constitution.” But the Court also cited Article 22(1), Protection against arrest and detention in certain cases; U.S. Supreme Court cases Powell v. Alabama, Gideon v. Wainwright, and Brewer v. Williams; its own precedent; and a treatise.
The Court even drew on its own brand of originalism: The Founding Fathers of our Constitution were themselves freedom fighters who had seen civil liberties of our people trampled under foreign rule, and who had themselves been incarcerated for long periods under the formula Na vakeel, na daleel, na appeal (No lawyer, no hearing, no appeal). Many of them were lawyers by professor, and knew the importance of counsel, particularly in criminal cases. It was for this reason that they provided for assistance by counsel under Article 22(1), and that provision must be given the widest construction to effectuate the intention of the Founding Fathers.
The natural justice forms the cornerstone of every civilized legal system. It is not found in the codified statutes. But it is inherent in the nature. Being uncodified, the natural justice does not have a uniform definition. However, it lays down the minimum standard that an administrative agency has to follow in its procedure. Where the legal justice fails, the role of natural justice becomes evident in preventing the miscarriage of justice. Even God never denied the natural justice to the human beings. So the human laws also need to be in conformity with the rules of natural justice.
The rule of fair hearing must be followed to prevent the miscarriage of justice. If an accused is punished unheard, the purpose of law is defeated. The adjudicatory authority does not know whether the accused is innocent or not. What if the accused is punished unheard and later he turns out to be an innocent? Before taking any action the adjudicatory authority has to keep in mind the several considerations.