Audi alterum partem

Introduction

• The rule of natural justice has evolved with the growth of civilization. Natural justice is the
concept of common law which implies fairness, reasonableness, equality and equity.
• In India, the principles of natural justice are the grounds of Article 14 and 21 of the Constitution.
Article 14 enshrines that every person should be treated equally. Article 21 in its judgment of
Maneka Gandhi vs. The Union of India, it has been held that the law and procedure must be of a
fair, just and reasonable kind. The principle of natural justice comes into force when no prejudice
is caused to anyone in any administrative action.

Origin and Meaning

 Audi Alteram Partem is a legal maxim of Latin origin. Audi means 'hear/listen', alteram means
'other' and partem means side/ party' and hence, the maxim Audi Alteram Partem means 'Listen to
the other side or Let the other party be heard'.

Explanation

• Audi Alteram Partem is considered to be one of the basic theories of natural justice. In simple
terms, it means that the court must not pronounce any judgment until and unless both the parties
are heard Le. both the plaintiff and the defendant must be given the opportunity to present their
case before the judge.
• It gives a right to the parties to a suit that no party shall be condemned unheard, and any decision
made without listening to both the parties shall be against the principles of natural justice.

Illustration

• •If a person has been arrested and is not being able to represent himself through a lawyer, it is the
duty of the state to provide legal aid to the person or the person should be granted free legal aid if
he is not being able to afford legal services.

Application

Steps/Stages/ The essential elements of the maxim Audi Alteram Partem are as follow:

1.Notice
  Before any action is taken against the party who is affected. A notice must be provided to them in
order to present a cause against the proposed action and pursue his application. Il any order is
passed without giving notice, then it is against the principle of natural justice and is void ab initio
which means void from the beginning.
• It is a right of person to know about the facts before any action is taken and without knowing the
proper facts, a person cannot protect himself. The right to notice means right to be known. The
facts should be known by the party before the hearing of the case. Notice is essential to begin any
hearing. Notice must contain the date, time, place of hearing and the jurisdiction under which a
case is filed. It must also contain the charges and proposed against the person. If any of the thing
is musing in the notice, then notice will be considered invalid. Non issuance of notice does not
affect the jurisdiction but affects the rules of natural justice.

Case - Punjab National Bank v. All India Bank Employees Federation

 In this case the notice, which was given to the party contain certain charges, but it was not
mentioned anywhere that penalty was imposed on the charges. Hence, the charges on which
penalty was imposed was not served as a notice to the parties concerned. The notice was not
proper and thus, the penalty which was imposed was invalid.

2.Hearing

 The second most essential element of Audi alteram partem is fair hearing. If the order passed by
the authority without hearing the party or without giving him an opportunity of being heard, then
it will be considered as an invalid.

Case - Harbans Lal v Commissioner, National Co-operative Bank v. Ajay Kumar and Fateh Singh v State
of Rajasthan

• In this case, it was held that if a person gets a reasonable opportunity of being heard or fair
hearing it is an essential Ingredient of the principal of Audi alteram partem. This condition is
accompanied by the authority providing written or oral hearing, which is discretion of the
authority, unless the statute under which action is taken by the authority provides otherwise. It is
the duty of authority to ensure that affected parties should get a chance of oral or personal hearing
or not.

3.Evidence
 • Evidence Is considered as a most Important part which is brought before the court when both the
parties are present there and the judicial or quasi-judicial authority will act upon the evidence
which is produced before the court.

Case - Stafford v Minister of Health

• In this case, it was held that no evidence should be received in the absence of the other party and
if any such evidence is recorded then it is the duty of authority to make it available to the other
party.

4.Cross examination

• The court should not require revealing the person concerned or material to be taken against him.
but an opportunity has provided them to deny the evidence. The question arises that will witness
will be cross examined

Case - Kanungo & Ca, v Collector of Customs

• In this case, the business property of a person was investigated, and some watches were seized by
the police who was in power under the Sea Customs Act. A person who gave the information was
not allowed for cross examination. The principle of natural justice was not violated, and the court
held that principle of natural justice does not allow the concerned person to cross examine against
the witness in the matter where goods are seized under the Sea Custom Act.

5.Legal Representation

• An important question is whether right to be heard includes right to legal representation? Fairly
speaking, the representation through a lawyer in the administrative adjudication is not considered
as an indispensable part of the fair hearing. But, in certain situations if the right to legal
representation is denied, then it amounts to violation of natural justice.
• Thus, where the case involves question of law as in case of JJ. Mody v. State of Bombay and in
another case of Krishna Chandra v. Union of India, the denial of legal representation will amount
of violation of natural justice because in such conditions the party may not be able to understand
the question of law effectively and. therefore, he should be given an opportunity of being heard
fairly.

Exceptions To Audi Alteram Partem

• The word exception in the context of natural justice is really a misnomer, but in the below
mentioned exclusionary cases, the rule of Audi alteram partem is held inapplicable not by way of
 an exception to "fair play in action", but because nothing unfair can be inferred by not affording
an opportunity to present or meet a case. But such situations where nothing unfair can be inferred
by not affording a fair hearing must be few and exceptional in every civilized society.

1) Constitutional Exclusion:

• The Courts imply natural justice when the parent statute under which an action is being taken by
the Administration is silent as to its application. Omission to mention the right of hearing in the
statutory provision does not ipso facto exclude a hearing to the affected Maneka Gandhi vs.
• Union of India. A statute can exclude natural justice either expressly or by necessary implication.
• But Article 14 allows challenges to such statutes, requiring justification.

2) Legislative Function:

• A ground on which hearing may be excluded is that the action of the Administrative in question &
legislative and not administrative in character: Usually, an order of general nature, and not
applying to one or a few specified persons, is regarded as legislative in nature. Legislative action,
plenary or subordinate, is not subject to the rules of natural justice because these rules lay down a
policy without reference to a particular individual. On the same logic, principles of natural justice
can also be excluded by a provision of the Constitution as well. The Indian Constitution excludes
the principles of natural justice in Art. 22, 31(A), (P), (C) and 311(2) as a matter of policy.
Nevertheless, il the legislative exclusion is arbitrary, unreasonable and unfair, courts may quash
such a provision under Art.14 and 21 of the Constitution.
• In Charan Lal Sahu vs. UOl, the constitutional validity of the Bhopal Gas Disaster (Processing of
Claims) Act, 1985, was involved. This legislation provides for details of how to determine claims
and pay them. The affected parties approached the Supreme Court, contending that they had not
received a hearing, violating the principle of the Audi Alteram Partem. The SC declared, "Natural
justice principles don't apply to parliamentary legislation, assuming such legislation is within the
legislature's power."

3) Impracticability:

• Natural justice can be followed and applied when it is practicable to do so, but in a situation when
it is impracticable to apply the principle of natural justice then it can be excluded.
 In Bihar School Examination Board vs. Subhash Chandra, the Board conducted final tenth
standard examination. At a particular center, where there were more than thousand students, it
was alleged to have mass copying. Even in evaluation, Il was prima-fade found that there was
 mass copying as most of the answers were same and they received same marks. For this reason,
the Board cancelled the exam without giving any opportunity of hearing and ordered for fresh
examination, whereby all students were directed to appear for the same. Many of the students
approached the Patra HC challenging il on the ground that before cancellation of exam, no
opportunity of hearing was been given to the students.
• The HC struck down the decision of the Board in violation of Audi Alteram Partem. The Board
unsatisfied with the decision of the Court approached the SC. The SC rejected the HC Judgment
and held that in this situation, conducting hearing is impossible as thousand notices have to be
issued and everyone must be given an opportunity of hearing, reexamination, rebuttal, presenting
evidences etc. which is not practicable at all, So, the SC held that, on the ground of
impracticability, bearing can be excluded.

(4) Academic Evaluation:

 Where authority is purely administrative, one cannot claim a right to a hearing.

5) Inter-Disciplinary Action:

• In Inter- Disciplinary action like suspension etc. there is no requirement to follow the principle of
natural justice.
• In S.A Khan vs. State of Haryana, Mr. Khan is an IPS Officer holding the post of Deputy
Inspector General of Haryana: The Haryana Government suspended Haryana Govt. because of
various complaints against him. Thus, he approached the Supreme Court on the grounds of
violation of PNJ, as he was not given an opportunity to be heard. The SC held that the suspension
being interim-disciplinary action, there is no requirement to afford hearing. It can be ordered
without affording an opportunity of hearing.

Conclusion

• The principle of natural justice has evolved through civilization. It has not evolved from the
constitution but from mankind itself. Every person has the right to speak and be heard when
allegations are being put towards him or her. The Latin maxim, 'Audi Alteram Partem' is the
principle of natural justice where every person gets a chance of being heard. The meaning of the
maxim Itself says no person shall be condemned unheard. Hence, no case or judgment can be
decided without listening to the point of another party. There are many cases where this principle
of natural justice is excluded, and no option is given to the party to speak. Natural Justice means
that justice should be given to both the parties in a Just, fair and reasonable manner. Before the
court. both the parties are equal and have an equal opportunity to represent them.