A PROJECT ON

PRINCIPLE OF NATURAL JUSTICE IN

ALTERNATE DISPUTE REDRESSAL

AKSHI TANDON4TH semesterBallb (hons)

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INTRODUCTION.

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

powers1. But in some cases, the administrative agencies are left free to device their own

procedure2. 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’3. The norms of natural justice are based on two ideas:

1. audi alteram partem,- the person, who has to be effected by a decision has a right

to be heard; and

2. nemo judex in re sua – the authority deciding the matter should be free from bias.

However the applicability of the principles of natural justice depends upon the facts and

circumstances of each case.

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:

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“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.

NATURAL JUSTICE AND ITS ESSENTIAL ELEMENTS.

The principles of natural justice have been developed and followed by the judiciary to

protect the right of the public against the arbitrariness of the administrative authorities.

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Natural Justice implies fairness, reasonableness, equity and equality. It is the concept of

the Common Law, which stands on the same footing as the concept of “procedural due

process” of America. According to HEGDE J., the aim of natural justice is to secure

justice; to prevent miscarriage of justice and to give protection to the public against the

arbitrariness.

Roman law. In Roman law the concept of natural justice consists of two essential

rules:

1. audi alteram partem,- the person, who has to be effected by a decision has a

right to be heard; and

2. nemo judex in re sua – the authority deciding the matter should be free from

bias.

Common law. From the medieval era, the English Common Law consists of the

principles of natural justice. The rules requiring impartial adjudications and fair

hearings can be traced back to the medieval precedents and indeed they were not

unknown in the ancient world. In Dr. Bonham's Case (1610)4, COKE J. held that

an Act of the Parliament is void if it makes a person judge in his own cause or

was otherwise against common right or reason. Coke then made the following

general statement:

“And it appears in our books, that in many cases, the common law will control acts of parliament, and sometimes adjudge them to be utterly void: for when an act of parliament is against common right and reason, or repugnant, or impossible to be performed, the common law will control it, and adjudge such act to be void; and, therefore, in ... Thomas Tregor's case [Judge] Herle said, some statutes are made against law and right, which those who made them perceiving, would not put them in execution…”

But the year 1963 proved to be watershed in the development of concept of

natural justice in common law world. With the expansion of the administrative process,

the wide abuse of the power of the administrative authorities became evident. In the case

of Ridge v. Baldwin , the applicability of natural justice to the quasi-judicial bodies took

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place. Ridge v. Baldwin is regarded as the Magna Carta of natural justice. The judgment

of LORD REID widened the ambit of natural justice.

Position in India. Article 14, 19, 21 of the Indian Constitution lay down the

cornerstone of natural justice in India. In the case of E P Royappa v. State of

Tamilnadu5 , the apex court held that a properly expressed and authenticated order

can be challenged on the ground that condition precedent to the making of order

has not been fulfilled or the principles of natural justice have not been observed.

In another landmark case of Maneka Gandhi v. Union of India6 , the apex court

held that law which allows any administrative authority to take a decision

affecting the rights of the people, without assigning the reason for such action,

can not be accepted as a procedure, which is just, fair and reasonable, hence

violative of Articles 14 and 21.

RULE OF FAIR HEARING.

The maxim audi alteram partem accentuates the rule of fair hearing. It lays down that no

one should be condemned unheard. It is the first principle of the civilised jurisprudence

that a person facing the charges must be given an opportunity to be heard, before any

decision is taken against him. Hearing means ‘fair hearing’.

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 affected7. 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.

5 AIR, 1974 SC 555.6 (1978) 1 SCC 248: AIR 1978 SC 597.7 Govt. of Mysore v. J V Bhat, (1975) 1 SCC 10: AIR 1975 SC 596.

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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 situation8. In Mineral

Development v. State of Bihar9, 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 seem to be done”10. In this regard the Dr. Bentley case11 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.12 , 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 Works13 ,

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

8 Syndicate Bank v. General Secretary, Syndicate Bank Staff Association, (2000) 5 SCC 65.9 AIR 1960 SC 468: (1960) 2 SCR 609.10 R. v. Sussex Justices, ex p. McCarthy, (1924) 1 KB 256, 259.11 R. v. University of Cambridge, (1723) 1 Str. 757: 93 ER 698.12 (1985) 3 SCC 545.13 (1861-73) All ER Rep 1554.

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‘administrative’, the duty on the administrative authority is to act justly and fairly and not

arbitrarily. In the 1970 case of A. K. Karaipak v. Union of India14, 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 FAIR HEARING.

1. 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 defence. It is the sine qua non of the right of hearing. 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.

Statements of specific charges which the person has to meet.

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 notice15.

14 AIR 1970 SC 150: (1969) 2 SCC 262.15 Govindsingh v. Subbarao, AIR 1971 Guj 131: (1970) 11 GLR 897.

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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 India16, 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.

2. 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. CIT17,

held that the assessee was not given a fair hearing as the Appellate Income Tax

tribunal did not disclose the information supplied to it by the department. A

person may be allowed to inspect the file and take notes.

3. 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.

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 Mitter18, 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.

4. 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

16 (1973) 1 SCC 380: AIR 1973 SC 389. 17 AIR 1955 SC 65.18 (1971) 1 SCC 396: AIR 1971 SC 1093.

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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-examin. The cross-examination of the witnesses is not regarded as an

obligatory part of natural justice. Whether the oppoetunity 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.19 ,

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-examin 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, Ranchi20, 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 can not be

cross-examined that that may expose them to the harassment.

5. Right to counsel. For sometime 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

19 AIR 1967 SC 122: 1966 Supp SCR 401.20 AIR 1973 SC 1260: (1973) 1 SCC 805.

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Alternate Dispute Resolution:

In a rapidly developing society multiplicity of, human needs results in conflict of interests, which is further compounded due to the lack of discipline in litigation, due to this the judicial mechanism, finds it extremely difficult to cope up with its enormous case load. Litigation particularly civil litigation in India is notoriously known for pendency of cases. Government of India Statistics indicate that a total of 23.9 million cases are pending in various courts of India

Majority of Indian Courts are flooded by adjournments, revisions, appeals, and cross appeals; on an average a civil case takes anything from about 5 to 8 years for its final disposal & causes are not wanting when cases have lingered in courts for 15 to 20 years.

The workload of Indian Judiciary increased by leaps and bounds and has now reached a stage of unmanageable magnitude, which has in fact led to a large backlog of cases.

In Surjit Singh’s Case , the Supreme Court expressed its anguish for such long delay, as the particular case was lying pending in the civil court at Patiala with no sight of its finalization.

It was in fact the common man’s disgust for traditional court litigation, which led to the evolution of alternate methods of dispute resolution.

To quote, Mr. Justice V.R Krishna Iyer “Interminable, time consuming, complex and expensive court procedure impelled jurists to search for an alternate forum less formal, more effective and speedy for resolution of dispute avoiding procedural clap trap led tothe Arbitration act

The Constitution Of India Provides For The Right To Speedy Justice: The Preamble to the constitution of India, as well as Directive Principals enumerated under Art -39(A), of Indian Constitution promise to secure socio, economic, political justice and equality of status and opportunity to all citizens. However all things said and

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done the ground reality is that, the Indian judicial system ,has not on one but several occasions fallen short of fulfilling such promises.

Alternate Dispute Resolution (Meaning):

Alternate Dispute Resolution, is a procedure for settling a dispute by means other than litigation, such as arbitration, mediation or mini-trial 21

Purpose of ADR Mechanism:

The purpose of ADR is to resolve the conflict in a more cost effective and expedited manner, while fostering long term relationships. ADR is in fact a less adverse means, of settling disputes that may not involve courts. ADR involves finding other ways (apart from regular litigation) which act as a substitute for litigation and resolve civil disputes ,ADR procedure are widely recommended to reduce the number of cases and provide cheaper and less adverse form of justice, which is a lesser formal and complicated system. Off late even Judges have started recommending ADR to avoid court cases.22

In essence the system of ADR emphasizes upon:

Mediation rather than winner take all. Increasing Accessibility to justice. Improving efficiency and reducing court delays

Historical Background of Development of ADR:

To Quote, Victor Hugo: An Invasion of Armies can be resisted, but not an idea whose time has come. The time to settle disputes through ADR has quietly and irresistibly come.

21 Black’s Law Dictionary-17th Edition22 www.slideshare.net

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Alternate Dispute Resolution has become an indispensable need for today‘s world,Our Court’s are already overburdened by arrears which appear to be insoluble in near future, Cases are increasing in courts in a super fast speed and the courts have proved to be helpless in rendering speedy justice in majority of the pending cases, so much so that: A resolution had been adopted by the Chief Minister and the Chief Justices of The High Court on 4th of December 1993,declaring that the courts were not in a position to bear the entire burden of the justice system and that a no. of disputes would be better settled, if resolved by alternative modes like; Arbitration, Mediation and Negotiation ,

Alternate to dispute resolution need to have procedural flexibility in order to save time, money and avoid miseries and delays associated with conventional trial, under the scheme of ADR the litigants are in fact encouraged to resort to alternative dispute resolution, so that the actual court systems would be left with a smaller number of important disputes that demand judicial attention. Consequently ADR has received a grand welcome in each and every field in which it has ventured.

The closing years of the 20th century witnessed a world wide change, towards the growing trend of resolving problems of disputants; it was during this time that the popularity of ADR methods as a good substitute for conventional judicial convention gained popularity.

Most countries including India have accepted Arbitration, Mediation and Conciliation as the best ADR techniques for resolution of civil disputes, particularly those relating to money suits, injunctions and specific performance of contracts.

A D R as a mode of dispute resolution has been quite popular with the business community, Due to globalization of economy and competitive market policy; there has been a tremendous increase in trade, commerce and industry, which has resulted in a surge in disputes pertaining to commercial transactions and businesses. Business community and industrial entrepreneurs cannot afford to indulge in protracted litigation and thus prefer to get their disputes settled through ADR.

To Quote, Mr. Justice A.M.Ahmadi23 ,While we encourage ADR Mechanisms ,we must create a culture for settlement of disputes through these mechanisms , unless members of bar encourage their clients to settle their disputes through negotiation ,such mechanism cannot succeed.

Thus to summarize the above discussion ADR shall be instrumental in tackling the menace and monstrosity of what is known as Docket Explosion-,”An unmanageable upsurge in the number of pending cases , before regular courts.24

Various Types of Alternate Dispute Resolution:

23 Former chief Justice of India24 DK Sharma “Lok Adalat The Mission-2002 AIR Journal,Pg-97

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Arbitration alone is not ADR; ADR may be through the following modes of ADR:

Negotiation: Is a non-binding procedure, in which discussions between the parties are initiated without the intervention of any third party, with the sole objective of arriving at a negotiated settlement of a dispute.

Conciliation/Mediation: A non-binding procedure in which an impartial third party i.e the conciliator or the mediator, assists the parties to a dispute in reaching a mutually satisfactory and agreed settlement of disputes.

Mediation/Arbitration : A Procedure which combines conciliation and mediation at a subsequent stage in instances where the dispute is not settled through either conciliation /mediation within a period of time agreed in advance by the parties to arbitration.

MEDOLA : Is a procedure in which ,if parties fail to reach an agreement through mediation, a neutral person ,who may be the original mediator or an arbitrator ,will select between the final negotiated offers of parties, such selection being binding on the parties.

Mini Trial: A Non-binding procedure in which the disputing parties are presented with summaries of their cases, so as to enable them to access the strengths, weaknesses and prospects of their case and then an opportunity to settle it is explores.

Arbitration: Is a procedure in which the dispute is submitted to an arbitral tribunal which makes a decision(an award) on the dispute, that is binding upon the parties

Fast Track Arbitration: A form of Arbitration in which the arbitration procedure is rendered in a particularly short time and that too at a reduced cost.

Lok Adalats: Besides the above , Lok Adalats are also doing well as a mode of alternate dispute resolution system

Ombudsman: Ombudsman is a person with special powers to investigate cases in certain areas such as health, pensions or in instances where there may be a dispute particularly if a government body is involved. An ombudsman can only recommend as to how a dispute may be resolved, however his/her recommendations cannot be enforced.

Tribunals: Tribunals are similar to a court without the ritual or formality they, there are a no. of specialized tribunals which bear the name of their specialization, eg: Employment Tribunal, Immigration Tribunal.

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Salient Features of ADR:

ADR encompasses a variety of techniques such as mediation, arbitration, conciliation, judicial settlement, lok adalat and early neutral evaluation, which gives an opportunity to settle the disputes by mutual consent by parties through more or less informal and flexible processes.

Scope of ADR:

Under ADR, a dispute may be settled out of court and that too without litigation, however ADR system applies to only those disputes, as have arisen out of a legal relationship which may or may not be contractual.

REALATIONSHIP BETWEEN NATURAL JUSTICE AND ADR

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Alternate dispute resolution is becoming more and more popular in India in the present day context. The backlog of cases is alarmingly increasing and disposal of disputes expeditiously are a must for the maintenance of rule of law in the largest democracy in the world. The economic liberalisation in 1991 made more burdens on the courts. The present paper discusses the use of ADR as a tool to reduce the backlog of cases in India through Arbitration, Mediation and Conciliation. Lok Adalats, Gram Nyayalayas and Nyaya Panchayats are the contribution of India to the jurisprudence of ADR. The new Nyaya Panchayat Bill, 2006 and Gram Nyayalayas Bill, 2007 are examined closely. This paper argues that the concept of ADR should be "Indianised" to adapt to the local conditions. In order to counter the opposition from the lawyer community, the law schools should include curriculum to train the law students for amicable settlement of the disputes rather than the present system of promoting litigation

disputes, grievances and complaintsI. The respondent must be given full details of the accusations. That is, the factual issues andallegations to be examined and discussed should be specified in sufficient detail to enableadequate preparation of a defence and a reasonable opportunity of adequate refutation.II. Relevant documents used in judgment on a case must be disclosed to both parties.III. Decisions to admit or exclude evidence should be based on whether it is relevant, reliableand logically valid, capable of being tested in some form. The evidentiary basis fordetermination in harassment and discrimination cases is “on the balance of probabilities” asopposed to “beyond all reasonable doubt”.IV. There should not be undue delay in hearing the matter. (If a complainant/respondent fails toappear on a number of occasions the case might be determined on the evidence of the partyappearing).V. Notice of a hearing or conciliation conference should be serviced on the parties withreasonable time to enable them to prepare their case. The time and place must be clearlyspecified.VI. Unless there are exceptional circumstances, do not hear one side in the absence of theother.VII. Give each party the opportunity to state their case adequately.VIII. Give each party the opportunity to correct or contradict any statement prejudicial to theircase.IX. Witnesses, if any, should be examined or questioned and allowed to be questioned by theother party. Adequate time should be allowed for this “cross-examination”.

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-X. If there are different allegations by different complainants against the same respondent in thesame subject area, it may be a breach of procedural fairness to hear the evidence orallegations together rather than separately as one may unreasonably influence the other(Chambers v James Cook University 1995). It is also improper in such a case to inform thecomplainants of the nature or details of each other’s complaints.Role of ConciliatorsI. If a person has preconceived opinions or personal involvement in a matter they should notattempt to settle it.II. A conciliator previously involved in trying to resolve a matter should not sit on a panel hearingthe complaint.“Conciliators are charged with the task of assisting both parties to settle complaints amicably .... theremust be a full, fair and detached assessment of the strengths and weaknesses of both sides and ofthe possible remedies.” (Einfield J in his judgment in Hall & Ors v Shaban & Anor (1988) EOC 92-227 (At pp 77, 142)In brief:Foremost rules and procedures to be followed by any person or body charged with the duty ofadjudicating upon disputes:1. Act fairly:I. in good faithII. without biasIII. and in a judicial temper2. Give each party the opportunity to state their case adequately:I. to correct or contradict any statement prejudicial to their caseII. to not hear one side in the absence of the other3. Not to act in your own cause - declare any interest4. Gain full knowledge of the accusations5. Ensure relevant documents used in judgment of a case are disclosed to both partiesFinally:Principles of Natural Justice which apply when managing complaints of discrimination orharassment, staff grievances, staff and student discipline matters and otherdisputes……………..I. Any allegation against an employee or student should be made known to that person;II. The staff member or student should have the opportunity to respond to the allegation/s andhave their response appropriately considered;III. All investigations and decisions must be made by persons with appropriate authority;

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IV. In the circumstances of discipline, a staff member or student would be given the opportunityto improve their performance or behaviour before any sanctions or actions are applied (thismay be excluded in cases of serious misconduct)V. Staff and students must feel confident that they will not suffer any victimization ordiscrimination as a result of taking a complaint, a grievance or being subject to discipline and;VI. In all cases, appropriate levels of confidentiality must be maintained.

A strict compliance with the principles of natural justice wouldprevent a lot of litigation while following the requirements of fairnessand transparency. The principle of nemo judex in sua causam requiresa procedure free of any appearance of bias. Nobody should be seen asjudging his own case. Whoever has an interest in a particular mattershould avoid taking any decision or action, especially those whichwill have negative consequences on others. The other principle of audialteram partem (hear the other party) is equally important. Everybodyhas a right to a hearing before being subjected to any detrimentalconsequence. Alternative dispute redressal mechanisms likearbitration, mediation and reconciliation ought to be used in allmatters relating to minority institutions

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