UNIVERSITY OF PETROLEUM AND ENERGY STUDIESCOLLEGE OF LEGAL STUDIESDEHRADUN

Administrative Law AssignmentRight to Legal Representation as a facet of Natural Justice

Submitted to: Submitted by:Prof. Ramesh KumarAditi Gupta(7)(COLS)B.A LLBVI 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.

What are the rules of natural justice?

The principles of natural justice concern procedural fairness and ensure a fair decision is reached by an objective decision maker.Maintaining procedural fairness protects the rights of individuals and enhances public confidence in the process.A word used to refer to situations whereaudi alteram partem(the right to be heard) and nemo judex in parte sua (no person may judge their own case) apply.The principles of natural justice were derived from the Romans who believed that some legal principles were "natural" or self-evident and did not require a statutory basis.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

AUDI ALTERAM PARTEM OR RULE OF FAIR HEARING

The next 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.

Srikrishna v. State of M.P[footnoteRef:1]., It has been observed that the principles of natural justice are flexible and the test is that the adjudicating authority must be impartial and fair hearing must be given to the person concerned [1: AIR 1977 SC 1691]

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 notice2. Right to present case and evidence3. Right to rebut adverse evidence(i) Right to cross examination(ii) Right to legal representation4. Disclosure of evidence to party5. Report of enquiry to be shown to the other party6. 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.

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.

Mankea Gandhi Vs. UOI[footnoteRef:2] [2: AIR 1978 SC 597]

Facts

In this case the passport dated 01.06.1976 of the petitioner, a journalist, was impounded `in 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

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

RIGHT OF LEGAL REPRESENTATION

Legal representation is not considered as an indispensable part of the rule of fair hearing in administrative proceedings.

But speaking generally, it can be said that right to be represented by a counsel has been recognized in Administrative Law. Professor Allen[footnoteRef:3] rightly says: Experience has taught me that to deny a person who is unable to express himself a services of a competent spokesmen is a very mistaken kindness. [3: Administrative Jurisprudence, 1956, p.79.]

In Dladla v Administrator Natal[footnoteRef:4], Didcott J, referred to Pett v Greyhound Racing Association, Ltd (I)[footnoteRef:5], an English case about a licensed trainer of greyhounds who had been denied legal representation at a disciplinary enquiry into his conduct. [4: 1995(3) SA 769 (N).] [5: (1968) 2 All ER 545]

Lord Denning MR had this to say43:

Mr Pett is here facing a serious charge...If he is found guilty, he may be suspended or his license may not be renewed. The charge concerns his reputation and his livelihood. On such an enquiry I think that he is entitled not only to appear by himself but also appoint an agent to act for him...Once it is seen that a man has a right to appear by an agent, then I see no reason why that agent should not be a lawyer. It is not every man who has the ability to defend himself on his own. He cannot bring out the points in his own favour or the weaknesses in the other side. He may be tongue-tied or nervous, confused or wanting his intelligence. He cannot examine or cross-examine witnesses. We see it every day. A magistrate says to a man: You can ask any questions you like; whereupon the man immediately starts to make a speech. If justice is to be done, he ought to have the help of someone to speak for him and who better than a lawyer who has been trained for the task? I should have thought, therefore, that when a mans reputation or livelihood is at stake, he not only has to speak by his own mouth. He has the right to speak by council or solicitorNatural justice then requires that he can be defended, if he wishes, by council or solicitor.Even a prisoner can have his friend.

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.

Whether legal representation is allowed in administrative proceedings depends on the provisions of the statute. Factory laws do not permit legal representation, IndustrialDisputes 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) Illiterateb) Matter is technical or complicatedc) Expert evidence is on recordd) Question of law is involvede) Person is facing trained prosecutorThe 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 Board of Trustees, Port of Bombay Vs. Dilip Kumar[footnoteRef: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. [6: AIR 1983 SC 109]

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.

Constitutional Provisions Relating To Legal Aid

Legal Aid a Constitutional right Articles 21 & 39 A of the Constitution are as under;-Article 21 - Protection of life and personal liberty No person shall be deprived of his life or personal liberty except according to procedure established by law.Article 39 A -Equal justice and free legal aid. The State shall secure that the operation of the legal system promotes justice, on a basis of equal opportunity, and shall, in particular, provide free legal aid, by suitable legislation or schemes or in any other way, to ensure that opportunities for securing justice are not denied to any citizen by reason of economic or other disabilities.

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 courtIn 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 Arizona[footnoteRef:7], it was held that: [7: 384 U.S. 436 (1966)]

'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, andthat 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.'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 suchproceedings in the sight, but not in the hearing, of a 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.Evolution of Legal Aid Scheme Article 14(3) of the International Convention on Civil and Political Rights guarantees to everyone, the right to have legal assistance assigned to him in case where the interest of justice shall require,and without payment by him in any such case if he does not have sufficient means to pay for it. The Fourteenth Report of the Law Commission also echoes this concept: Equality is the basis of all modern systems of jurisprudence and administration of justice. In so far as a person is unable to obtain access to a court of law for having his wrongs redressed or for defending himself against a criminal charge, justice becomes unequal and laws which are meant for his protection have no meaning and to that extent fail in their purpose. Unless some provision is made for assisting the poor man for the payment of court fees and lawyers fees and other incidental costs of litigation, he is denied equality in the opportunity to seek justiceReport of the Bhagavati Committee, 1977

To make more focused recommendations regarding legal aid schemes, the government of India appointed in May, 1976 another committee with Shri Justice P.N.Bhagavati as chairman and Shri Justice V.R.Krishna as member. The report of this Committee, titled as the Report on National Juridicare: Equal Justice-Social Justice, was submitted in August, 1977. Its major recommendations are presented below: a) Setting up state legal aid boards and legal aid committees at district, Taluk/Tehsils/block levels as well as at Supreme Court and High Court levels. b) Legal aid programs should be based on the socio-economic conditions prevailing in the country. c) Prepare and encourage social workers for para legal services. d) Nyaya Panchayats may be constituted and encouraged e) Special provision for legal aid to women, scheduled castes, scheduled tribes and minorities. f) Initiating public interest litigation. g) Association of NGOs for LAS. h) Conciliation cells, to minimize litigation.

Committee for Implementing Legal Aid Schemes (CILAS)

Around this time (1976-77), the idea of Legal Aid Schemes had caught up in the country. Also, the Constitution (forty-second amendments) Act, 1976 had introduced Article 39A, which gave the concept of legal aid a constitutional status. To give effect to the intent of this Article as well as to the recommendations of the Bhagavati Committee, the government of India constituted in September 1980, the committee for implementing legal aid schemes (CILAS). The Charter for CILAS was as follows: a. To formulate specific Legal Aid Schemes (LASs). b. To monitor implementation LASs. c. To take steps for implementation of LASs.