Unit 4

Natural Justice

4.1 Nature, Scope and Importance of Natural Justice

Natural justice justifies its force from human nature. These are the principles which every
disciplinary authority should follow while taking any decision, which may adversely affect the
rights of individuals. It is to be seen that rules of natural justice are not codified anywhere; they
are procedural in nature and their aim is to ensure delivery of justice to the parties. It is also
called Universal justice.

Concept
• The Principle of Natural Justice have great significance in the study of Administrative Law
and characterized as fair administrative procedure
• Procedural safeguard against improper exercise of powers by a public authority
• Natural sense of what is right or wrong
• Involves a procedural requirement of fairness
• Also called substantive justice or fundamental justice or universal justice or fair play in
action
• Principles of natural justice are not embodied rules and are not codified.

Principle of Natural Justice

• Principle of natural justice had propounded by philosopher of ancient Greece and Rome.
According to them justice should be deliver without any bias. At that time, principle of
natural justice was called as natural law, universal law, eternal law, the laws of God, Devine
law etc.
• Natural law is the law of nature. It is set by nature and therefore has validity everywhere. It
believes on uniformity and universality.
• For Cicero, natural law is the law of reason, for Aristotle , natural law is the unwritten law in
other word it is not written on brazen tables or on pillars of stone, but solely by the finger of
nature in the hearts of men.
• Later, its concept has been developed and changed. In today's modern time, it means to
protect against arbitrary exercise of power by ensuring fair play.

Nature of Natural Justice

• It is a law of nature
• It is simple and elementary
• It is a settled law and no dispute on its principles
• Principles of natural justice are not embodied rules and are not codified.
• Conscience of what is right and wrong

Scope of Natural Justice

• The scope of Natural law is wider than any other law of the state
• Neutrality and Impartiality
• Its scope can be determined on the basis of ‘Due Process of Law’ and ‘According to Law’
• Its scope depends on the ‘Rule of Law’
• Cannot be limited within any codified laws
• Judge made law

Importance of Natural Justice

• In the present world, the importance of Natural Justice has been gaining its strength and it is
now the essence of any judicial and administrative system
• Principles of natural justice are no doubt, procedural requirements but ensures a strong
safeguard against any judicial or administrative; order or action, adversely affecting the
substantive rights of the individuals
• The term Natural Justice signifies basic principles of justice, which are made available to
everyone litigant during trial
• It protect the public rights against arbitrary decisions
• It allows a person to claim the right to adequate notification of the date, time, place of the
hearing as well as detailed notification of the case to be met

Limbs of Natural Justice

1. The Duty to Act Fairly
2. The Rule Against Bias
(i) Application of the Rule Against Bias
(ii) The test for Bias
(iii) Modification on Bias
3. Right to be Heard:
(a) Prior Notice
(b) The opportunity to be Heard
(c) Scope of the Rule
(d) Legal Representative
(e) Substantive Ultra-vires
(f) To know the Reason of the Decision

Natural justice is based on two fundamental rules:

1. Audi alteram partem (Latin for, hear the other side) and
2. Nemo judex in causa sua (Latin for, no man should be a judge in his own cause)
4.2 Rule Against Bias
Nemo judex in causa sua (Latin for, no man a judge in his own cause):
 It means no man should be a judge in his own cause or case. Own case means that case in
which judge him-self or his relatives, servants are plaintiff or defendant.
 According to natural justice, Judge should deliver impartial justice without any bias. He/she
should not be bias from his/her nearer and dear. Judge should not be guided by nepotism and
favouratism.
 Therefore, it is also called the rule against bias. No decision is valid if it was influenced by
any financial consideration or other interest or bias of the decision maker. A person is barred
from deciding any case in which he or she may be, or may fairly be suspected to be, biased.
This principle includes the basic concept of impartiality, and applies to courts of law,
tribunals, arbitrators and all those having the duty to act judicially.
 According to Sukra Niti(policy), decision maker should behave equally to friend and enemy.
Decision maker should make decision without any kind of bias, greediness and fear.

Forms of bias can be divided into following ways:

1. Personal bias: Judge should not try and dispose any case which is related to No. 30 of Court
proceeding. Judge should not also hear his/her enemy's case. There are two types of personal
bias:
a. Positive bias
b. Negative bias.

Due to positive bias, Judge may favour to his/her relatives whereas he/she may behave
negatively with his/her enemy because of negative bias.

2. Pecuniary bias: If judge makes the decision by accepting economic benefit or by accepting
the assurance of economic benefit, it is called pecuniary bias. Any direct pecuniary interest
however small in the subject matter of inquiry, will disqualify a judge.

3. Subject matter bias: If somebody has already expressed his/her opinion in any matter or
report and later, if s/he became a judge in the case of such matter, it will be subject matter
bias.

4. Departmental bias: Judge should not try and dispose any case if his/her present or past
department is a litigant of the case because there may be departmental bias.

5. Pre-conceived notion bias: If decision maker is already favour in some special concept and
decides as per such concept, it is called pre-conceived notion bias.

Exceptions of Nemo judex in causa sua (no man should be a judge in his own cause):
1. Case related to contempt of the court: No man can be a judge in his own case. But it can not
applied in the case of contempt of the court. The court decides the case related to contempt of
the court in order to maintain the dignity of the court, not to protect the judge ( Supreme
Court Vs. Kushum shrestha, N.K.P. 2023, p-95).
2. Case related to contempt of the parliament: In order to maintain dignity of the parliament, it
can prosecute, hear and decide the case related to contempt of the parliament.
3. Departmental Action: A department can make a verdict against its own employee.
4. Case related to royalty and tax: Department of royalty can investigate and make verdict in the
case related to royalty and tax.

Similarly, in the course of emergency period, to some extent, the government can curtail
principle of natural justice. In the context of the secrecy of the security of the country, the
Government can curtain principle of natural justice by making law.

4.3 Audi Alteram Partem or the Rule of Fair Hearing

Audi alteram partem (Latin for, hear the other side):

• It means no accused, or a person directly affected by a decision, shall be condemned unless
given full chance to prepare and submit his or her case and rebuttal to the opposing party's
arguments. In other words, audi alteram partem means everyone should be heard before
making any decision against him.
• The right to a fair hearing requires that individuals should not be penalized by decisions
affecting their rights or legitimate expectations unless they have been given prior notice of
the case, a fair opportunity to answer it, and the opportunity to present their own case.
• It is also called rule of fair hearing. Natural justice allows a person to claim the right to
adequate notification of the date, time, and place of the hearing as well as detailed
notification of the case to be met. This information allows the person adequate time to
effectively prepare his or her own case and to answer the case against him or her.
• This principle can be divided in following ways:-
1. Right to notice:- The Court or Office should send notice to the defendant mentioning time
to preset, place to come, name of the case, provision relating to attorney etc.
2. Right to present case and evidence:- Litigant should get chance to present in the case and
submit the evidence.
3. Right to rebut adverse evidence:- Litigant has right to rebut adverse evidence against him.
It includes right to cross examination and right to consult with legal practitioner. As per
Article 24(2) of the Interim constitution, every person who is arrested shall have the right
to consult a legal practitioner of his or her choice at the time of arrest.
4. No evidence should be taken at the back of other party:- According to No. 172 of the
court proceeding, if , in conducting investigation into any criminal offence in which the
Government of Nepal is plaintiff, the concerned police officer should give the notice of
the search.
 There should be at least two gentlemen and a representative of concerned V.D.C. or
Municipality as witness. So, without giving notice to the concerned person, search
process can not be made.
5. One who decides must hear: That Court should decide the case which has heard the case.

6. Rule against dictation:- Judge should decide the case as per available evidences and logic.
The decision should be made as per other's dictation.
7. Decision in post-haste:- The court should give adequate time to defense the case, to
present witness.
8. Reasoned decision: Judge should make the verdict on the basis of reason and proper
logic.
9. Report of the enquiry to be shown: The report of the investigation of the case should be
shown to the litigant.

Exceptions to the principle of Audi alteram partem (fair hearing):-

• Word done as per contract service.
• Work done as per an agreement.
• In the course of exile to the foreigner. But as per Article 31 of the Interim
constitution,2007, no citizen shall be exiled.
• Service of an employee can be terminated without hearing in probation period.
• Principle of fair hearing can not be applied to maintain public health and morality. For
example: to decompose adulterated or poisonous food stuff ( Fish, Meat, Oil etc.)
• Principle of fair hearing can not be applied in the course of transfer of the patient who is
suffering from transmitted (contaminated) disease.

4.4 Reasoned Decision

Essential Elements of Reasoned Decision:

• Use of judicial mind or conscience
• Institutional decision or One who decides must hear
• Rule against dictation or direction
• Decision post-hast
• Cause of financial incapacity not to attend the enquiry

Natural Justice in Nepal: