Jamia Millia Islamia: Adm8Nistative Law
Jamia Millia Islamia: Adm8Nistative Law
Jamia Millia Islamia: Adm8Nistative Law
2018 - 1PROJECT ON
ADM8NISTATIVE LAW
ACKNOWLEDGEMENT
I feel highly elated to work on this dynamic and highly important topic
that is “Natural Justice and Biasness”. This topic instantly drew my
attention and attracted me to research on it.
So, I hope I have tried my level best to bring in new ideas and thoughts
regarding the basics of this topic. Not to forget the deep sense of regard and
gratitude to my faculty adviser, Miss Vasudhara Kamath, who played the role
of a protagonist. Last but not the least; I thank all the members of the MATS
Law School and all others who have helped me in making this project a
success.
INTRODUCTION
The basis for the rule against bias is the need to maintain public confidence in
the legal system. Bias can take the form of actual bias, imputed bias or
apparent bias. Actual bias is very difficult to prove in practice while imputed
bias, once shown, will result in a decision being void without the need for any
investigation into the likelihood or suspicion of bias. Cases from different
jurisdictions currently apply two tests for apparent bias: the "reasonable
suspicion of bias" test and the "real likelihood of bias" test. One view that has
been taken is that the differences between these two tests are largely
semantic and that they operate similarly.
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. The mere fact that a decision affects
rights or interests is sufficient to subject the decision to the procedures
required by natural justice.
Although natural justice has an impressive ancestry and is said to express the
close relationship between the common law and moral principles, the use of
the term today is not to be confused with the "natural law" of the Canonists,
the mediaeval philosophers' visions of an "ideal pattern of society" or the
"natural rights" philosophy of the 18th century. While the term natural
justice is often retained as a general concept, in jurisdictions such as Australia
and the United Kingdom it has largely been replaced and extended by the
more general "duty to act fairly". Natural justice is identified with the two
constituents of a fair hearing, which are the rule against bias i.e nemo iudex in
causa sua, or "no man a judge in his own cause", and the right to a fair hearing
i.e audi alteram partem, or "hear the other side"
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
In a welfare state like India, the role and jurisdiction of administrative agencies
is increasing at a rapid pace. The concept of Rule of Law would lose its validity
if the instrumentalities of the State are not charged with the duty of
discharging these functions in a fair and just manner.
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.
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 embodies the basic concept of
impartiality, and applies to courts of law, tribunals, arbitrators and all those
having the duty to act judicially. A public authority has a duty to act judicially
whenever it makes decisions that affect people's rights or interests, and not
only when it applies some judicial-type procedure in arriving at decisions.
Thus a judge should not only be impartial but should be in a position to apply
his mind objectively to the dispute before him.
The rule against bias thus has two main aspects: -
Issue-
Whether the selection of candidate would vitiate for bias if close relative of a
members of the Public Service Commission is appearing for selection?
Held
The SC laid down the following propositions: -
1. Such member must withdraw altogether from the entire selection process
otherwise all selection would be vitiated on account of reasonable likelihood of
bias affecting the process of selection
2. This is not applicable in case of Constitutional Authority like PSC whether
Central or State. This is so because if a member was to withdraw altogether
from the selection process, no other person save a member can be substituted
in his place and it may sometimes happen that no other member is available to
take the place of such a member and the functioning of PSC may be affected.
3. In such a case, it is desirable that the member must withdraw from
participation in interview of such a candidate and he should also not take part
in the discussions.
The principle of audi alteram partem is the basic concept of principle of natural
justice. The expression audi alteram partem implies that a person must be
given opportunity to defend himself. This principle is “sine qua non” of every
civilized society.
1. Right to notice
2. Right to present case and evidence
3. Right to rebut adverse evidence
(i) Right to cross examination
(ii) Right to legal representation
4. Disclosure of evidence to party
5. Report of enquiry to be shown to the other party
6. Reasoned decisions or speaking orders
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
In H.L.Trehan Vs. UOI, a circular was issued by the Govt. on taking over the
company prejudicially altering the terms and conditions of its employees w/o
affording an opportunity of hearing to them. The SC observed that "In our
opinion, the post decisional opportunity of hearing does not observe the rules
of natural justice. The authority who embarks upon a post-decisional hearing
will normally proceed with a closed mind and there is hardly any chance of
getting proper consideration of the representation at such a post decisional
hearing."
Conclusion
1. where the original decision does not cause any prejudice or detriment to the
person affected;
2. where there is urgent need for prompt action;
3. where it is impracticable to afford pre-decisional hearing.
The decision of excluding pre-decisional hearing is justiciable.
REQUIREMENT OF CROSS EXAMINATION
Cross-examination is used to rebut evidence or elicit and establish truth. In
administrative adjudication, as a general rule, the courts do not insist on cross-
examination unless the circumstances are such that in the absence of it, an
effective defence cannot be put up.
In Town Area Committee Vs. Jagdish Prasad , the department submitted the
charge, got an explanation and thereafter straightaway passed the dismissal
order. The court quashed the order holding that the rule of fair hearing
includes an opportunity to cross-examine the witness and to lead evidence.
In Hira Nath Misra Vs. Principal, Rajendra Medical College the court disallowed
the opportunity of cross-examination on the grounds of practicability. The SC
rejected the contention of the appellants that they were not allowed to cross-
examine the girl students on the ground that if it was allowed no girl would
come forward to give evidence, and further that it would not be possible for
the college authorities to protect the girl students outside the college
precincts.
Where, however, witnesses depose orally before the authority, the refusal to
allow crossexamination would certainly amount to violation of principles of
natural justice.
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.
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) Illiterate
b) Matter is technical or complicated
c) Expert evidence is on record
d) Question of law is involved
e) Person is facing trained prosecutor
The 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 Nandlal Bajaj Vs. State of Punjab, the court
allowed legal representation to the detainee through a lawyer despite Section
8(e) of COFEPOSA specifically denied legal representation in express terms
because the State had been represented through a lawyer.
1. It ensures that the administrative authority will apply its mind and objective
look at the facts and evidence of the case.
2. It ensures that all the relevant factors have been considered and that the
irrelevant factors have been left out.
3. It satisfies the aggrieved party in the sense that his view points have been
examined and considered prior to reaching a conclusion.
4. The appellate authorities and courts are in a better position to consider the
appeals on the question of law.
In short, reasons reveal the rational nexus between the facts considered and
the conclusions reached.
However, mere recording of reasons serves no purpose unless the same are
communicated either orally or in writing to the parties. In fact mere
communication of reasons has no meaning unless the corrective machinery is
in place.
Whether the reasons should be recorded or not depends on the facts of the
case.
Issue
Whether it was incumbent upon the Chief of Army Staff to record the reasons
of the orders passed by him while confirming the findings and the sentence of
the CG
Held
Under sec 162 of the Army Act, the reasons have to be reached only in cases
where the proceedings of a summary court martial are set aside or the
sentence is reduced and not when the findings and sentence are confirmed.
Thus requirement of recording reasons cannot be insisted upon at the stage of
consideration of post-confirmation petition by the
CG.
Facts
Appellant Co. after doing business for 30 years closed down. 1200 persons
unemployed -
On the basis of commission to enquire into the affairs of the co. u/s 15 of IDRA,
GOI passed an order u/s 18-A to take over the mill. Challenged before SC on
the ground that enquiry report not submitted
Held
Not possible to lay down general principle on this .
Answer depends on facts and circumstances of each case
If the non-disclosure of the report causes any prejudice in any manner
to the party, it must be disclosed, otherwise non-disclosure would not
amount to violation of principles of natural justice.
CONCLUSION
Natural justice have a close relation with common law and moral
principles but it is not the natural law. Natural justice aims at providing
fairness equity and equality to the people and it aims at decisions and
judgement free from any kind of biasness to give proper justice to
people in absence of this, judgements would go influenced with
biasness and would change their nature so we cannot hope to get
justice from court as they would be partial which would thus make a
court a useless place to get justice from. Rule against biasness makes a
judge to be impartial and to put his mind objectly to the dispute or
problem before him The basis on which impartiality operates is the
need to maintain public confidence in the legal system. The erosion of
public confidence undermines the nobility of the legal system, and leads
to ensuing chaos Justice must be rooted in confidence and confidence
is destroyed when right-minded people go away thinking: 'The judge
was biased. And thus the complete law and order fails without natural
justice and rule against biasness.