Introduction

Principles of natural justice which are judge-made rules and still continue to be a classical example of judicial activism were developed by the courts to prevent accidents in the exercise of outsourced power of adjudication entrusted to the administrator authority. Sometimes the statue under which the administrative agency exercise power lays down the procedure which the administrative agency must follow but at times the administrative agency is left free to devise its own procedure. However courts have always been insisted that the administrative agency must follow a minimum of fair procedure. This minimum fair procedure refers to the principle of natural justice.

In Maclean vs. The Workers Union[2]it has been stated as follows.

The phrase is, of course, used only in a popular sense and must not be taken to mean that there is any justice natural among men. Among most savages there is no such thing as Justice in the modern sense. In ancient days a person wronged executed his own justice. Amongst our own ancestors, down to the thirteenth century, manifest felony, such as that of a manslayer taken with his weapon, or a thief with the stolen goods, might be punished by summary execution without any form of trial. Again, every student has heard of compurgation and of ordeal; and it is hardly necessary to observe that (for example) a system of ordeal by water in which sinking was the sign of innocence and floating the sign of guilt, a system which lasted in this country for hundreds of years, has little to do with modern ideas of justice. It is unnecessary to give further illustrations. The truth is that justice is a very elaborate conception, the growth of many centuries of civilization; and even now the conception differs widely in countries usually described as civilized.

Origin of the Principles of Natural Justice

‘Natural Justice’ being an expression of English common law & the same has been witnessed in derivative forms under new garbs. The judicial expressions under Abbott vs. Sullivan[3] reported in it is entailed as an idea which is easy to proclaim, but their precise extent is way too far to have a definition. There being absence in a blanket definition of Natural Justice but at the same time there are only possibilities to enumerate the certainty of inclusion of main principles. Usage of the definition of Natural Law was more often interchangeably used as an expression similar to Natural Law but the recent trend has fetched the drift to wear restricted meaning with its notion to enunciate rules of judicial procedures.

Complimenting the ascribed position of Natural Law, the decision in  HL, Local Government Board v. Arlidge,[4] Viscount Haldane observed “…those whose duty is to decide must act Judicially. They must deal with the question referred to them without bias and they must give to each of the parties the opportunity of adequately presenting the case made. The decision must come to the spirit and with the sense of responsibility of a tribunal whose duty it is to meet out justice.”

The international position of the concept of natural law varies with its idea. In United States, the idea relating to the concept of Natural Justice is not used vehemently since the ‘due process of law’ is protected by the Constitution wherever the question s to hindering of individual’s life, liberty or property is affected by the State action. Though the unsettled position of American belief of ‘Due Process of law’ does not yield to a decisive position but observance of principles of Natural Justice is fetched through advantageous understanding of the expression’ due process’.

The common understanding of concept of Natural Law with Greek and Romans to modern framework of Natural Law through the notion of contractualism, the transformation can be duly witnessed. Many a times the attempts to define Natural Justice have taken several courses through judicial expressions. It has also been used a Universal Justice[5] as well the requirement of substantial justice.[6] The enhanced ambit of natural justice was emphasised as the natural sense of what is right and wrong. [7]

Natural Justice and Natural Law

The understanding of natural justice may sound similar with natural law but both of these should not be equated on same footing. Aristotelian concept of ‘Natural Law’ should not be confused with old latin phrase ‘jus naturale’ which means natural law. Aristotelian conception of Natural Law was basically adopted by the Romans.  ‘Natural Law (Jura Naturalia) which is observed equally in all nations, being established by divine providence, remains forever settled and immutable; but that law which each state has established for itself is often changed, either by legislation or by tacit consent of the people. The phrase Natural Law did not, however, always have a constant meaning. In course of its evolution through ages it succumbed to many variations and contradictions.[8] Natural Law has therefore, been differently named by various jurists as Divine Law, Universal Law or Common Law, Eternal Law and sometimes as Law of Reason or Law of Nature. The Phrase ‘jus naturale’ conveys the idea of a natural law which speaks of a physical law of nature like the natural law of gravitation and a philosophical system of legal and moral principles purportedly deriving from a universalized conception of human and divine justice rather than from legislative or judicial action. In the term ‘natural justice’ the word natural tends to create confusion in the minds of the readers because it leads reader to add an ethical angle to it. In codified law ethics may sometimes not find place for example, it may be completely legal to refuse to pay the time-barred debt but the same may be termed as unethical. However, the term natural justice has more to do with the procedural aspect of trial, process and the result rather than with legal theory behind it. The procedure and the process of trial however, must ensure ‘justness’ and ‘fairness’. In course of time however, the judges nurtured in the traditions of British Jurisprudence, often invoked natural justice in conjunction with a reference to ‘equity and good conscience’.

Legal experts of earlier generations did not draw any distinction between ‘natural justice’ and ‘natural law’. ‘Natural justice’ was considered as that part of natural law which relates to the administration of justice. Therefore, natural justice used in this way, is another name for natural law although devoid of some at least of the theological and philosophical overtones and implications of that concept.

Despite being different from natural law, natural justice does share a link with the conception of natural law. The principles of natural justice, as they are referred to as today, had once been regarded as a part of the Natural Law and variedly referred to as “right and justice’ or ‘one of the first principles of justice’ ‘or ‘natural equity’. In view of the plethora of the earlier decisions on the subject, the authenticity of the link between natural justice and natural law cannot be doubted and the cases do clearly depict the link between the two.

In the same way as the Romans identified ‘jus naturale’ with their ‘jus gentium’, the English judges identified Natural Law with the Common Law of England; and natural justice is part of Natural Law and of the Common Law and Sir Edward Coke described the English Common Law as ‘nothing else but reason’.

Principles of Natural Justice

The principles of natural justice as evident from its expressions are fundaments of administrative rules. They are deemed as a tool of contraction of fair lead of administration which is inclusive of rule against bias nemo judex in causa sua and fair hearing.

Rule against Bias

It is evident that violation of either of the principles would lead to a decision which would be void ab initio. There are many implications so as wide applications of the same. These applications involve professing the principles to every tribunal or authoritative body on their respective adjudication.[9]The mandate of this principle speak of requirement of officials to keep fair procedures along with their work requisites while pronouncing decisions that affect their audience. The rule against bias affirms the usage of procedures which are fair in their character and discards the ruling of bias and such influences in decision making.

The prima facie action of the principle of Rule against bias lays a role of disqualifying actual or inherent bias as well which is deemed as the one which is difficult to establish. Whether tools of such influences have been monetary/ financial or the usage of autocratic functioning of such authorities lead to disqualification of any authoritative establishment. The judicial expressions have driven the confusion with regard to understanding of apparent as well as inherent bias in any particular matter. As stated the complexity of the same stands on a clumsy footing which requires a clear understanding. There are two tests to decide or deduce the presence of apparent biasness in a matter.

The first test is ‘Real likelihood’ test. It examines whether facts as stated in any particular matter which is seen through the eyes of Court, will eventually yield apparent apportion of biasness or not. It is meant to access the facts instead of drawing perception of it. The statistical understanding of this test runs on probability of biasness instead of possibility. Endorsing the same Lord. Bingham MR says that there is no danger of such allegations of biasness having caused impediments to the parties involved if the court is bale to satisfy itself through the application of relevant facts and laws which are deemed as appropriate.

On the same lines the second test is based upon the finding of Lord Hewart that Justice should be apparently seen to be done not just be done. The test speculates the possibility of bias though suspicion standards.

Fair Hearing

The second facet of the principles of natural justice is audi alteram partem which has a stand point of nobody shall be condemned without being heard. This principle insists that without being given the requisite reasonable opportunity of hearing any order of decision of the authority shall not be passed. It implies that a litigant against whom a decision is being made which does not favour his claimed interests should be informed on priority or in absence of it with a reasonable opportunity to submit submission of explanation for his conduct or interests how it is being played out.

Central Cooperative Bank v. Ajay Kumar. case imposes on the administration compliance with standardized “procedural fairness” through the application of the principle of fair hearing or the common law doctrine of natural justice that comprises of two maxims: nemo judex incausa sua (a man may not be a judge in his own course); and audi altarem patem (hear the other side), and these apply to all courts and administrative adjudication bodies.

Reasoned Decision

The last pillar of principle of natural justice is that every pronouncement of a decision should be endorsed through the application of a reason. This principle was a product of recommendation by the Minister’s Power Committee in England. In Rama Varma Bharathan Thampuran v. State of Kerala,[10]the same application was endorsed with an expression that an Administrative body while having judicial powers shall have to keep the principles of Natural Justice in consonance. When the pronouncement is made through the words of Administrative authority, he has an obligation to state the reason for the same. It should not have to suffice its presence as a rubber stamp but it has to be a statement which entitles the required reasons to the interests of the parties involved in a particular matter. The objective of the same is meant to be to keep the sound interest of the litigants and validate the authority as well.

The legal backing of United States of America, section 8(b) of the Administrative Procedure Act, 1946 requires that the administrative authority to give reasons for the decisions. It is a clause of American Due Process. The Committee on Minister’s power held that the reason supported by the decision is principles of natural justice. The underlying concept is fair treatment of those potentially affected by administrative action. Decision affecting personal liberty invariably requires reasons. Further as a rule a professional judge should provide reason for his decisions.[11] The applied principle has to compliment reasonability and fair disclosure as well.

Status of Natural Justice Principles: Comparison between USA and UK

United Kingdom

The principle of fair play is deeply deep-rooted in the minds of English men. In order to develop natural justice principles fair administrative procedure has been propounded by the courts, just as they control the acts of public authorities by means of rules of reasonableness, improper purpose, the procedure adopted by the latter can be checked upon by means of rule of natural justice.^[12] Essence of the principle of natural justice lies in the fact that it should be observed when discretionary power is exercised; conferring wide discretionary power is no exception to applying natural justice principles.

In administrative law parlance natural justice means the natural sense of what is wrong and what is right which is equated to the principle of fairness.^[13] It is a well settled principle that decisions made without principles of natural justice been observed are out of the jurisdiction of the authority making such decision. Decision can be rendered void on the basis of non observance of the natural justice principles as in most of the cases their observance is obligatory. 

During the nineteenth and twentieth century there was an increase in local and central administrative authorities which widened the scope of natural justice. Principles of natural justice are observes not foe the power to be exercised but to protect the legal rights and interests of the persons affected.

The 1855 Act of UK provided that no one might put up a building in London without giving seven days notice to the local board of works and that if any one did so, the board might have demolished the building. In line of the above provision CJ. Erle, J. William, J. Byles were of the opinion that despite of the fact that there were no positive words in the statute which require that the parties should be heard but justice under common law fill in  voids of the legislation.^[14]

Hence it can be rightly asserted that the principle is flexible and is applicable even in events wherein the statute is silent.

Donoughmore Report in 1932 recommended the principle of Audi Alteram Partem which in view of the committee means that no party should be condemned unheard, and if right to be heard is to be a reality, he must know in good time the case he has to meet. The committee however mentioned that the principles of natural justice do not have a particular procedure to be followed which is to be regarded as fundamental. Natural justice principles are not only followed in the courts or administrative decisions but also in parliaments. Parliament is conferred with both judicial and legislative powers; judicial function of the parliament includes hearing appeals by the House of Lords from the superior court of UK. On the other hand, the courts also followed the principle of contradictory regulation. Generally, the courts comply with the legal requirements. The legal provisions are based on the principle Audi Alteram Partem, namely dismissal, summons, evidence, argumentation and cross-examination. If the law on certain aspects of Audi Alteram Partem is silent or expressly or implicitly deprives the person concerned of its protection, the legislator will adopt the principle in its entirety. The legislator makes them legally required for the implementation of a specific parliamentary law. If the legislator excludes the rule of the hearing due to circumstances, the courts must respect the rules of hearing in order to protect the citizens.

Lord Justice Jenkins^[15] explained that “… one party to an act is first and foremost entitled to have heard it in his presence, and he is entitled to challenge his opponent’s case and interrogate his witnesses, and he is also entitled to his Prima facie, that is his right, and if by any accident or accident a party is excluded from this right and an injunction is made in his absence, then the general justice system demands, as far as they are concerned The one who happens to be absent should be allowed to come to the court and report his case.

The administrative measures taken by the authority concerned must follow the principles of natural justice before any discretionary decisions are taken. Any administrative measure was treated as a judicial act if it affected a personal right.

The Ridge v. Baldwin^[16] is a landmark case which shifted the judicial attitude in order to secure fairness in the sphere of administration.

The Appeals Tribunal has argued that whether the function exercised by the administration can be considered quasi judicial or administrative, it must nevertheless be fair.^[17]

The courts have rejected earlier suggestions that the principles of natural justice do not apply to disciplinary bodies. Originally, the rules of natural justice were only applicable in the courts, but over time, the courts have extended their application to jurisdictional bodies and administrative bodies ranging from tribunals to ministerial decisions. Now it is well regulated that when an institution is of a judicial nature, the application of natural justice is a necessity and the procedures to follow are common to those of a court. But when the body is administrative, different standards are applied and the body only has to act fairly.

Fair play or fair hearing is flexible. The requirement of natural justice varies according to context. It is not possible to impose strict rules on when to apply the principle of natural justice, because everything depends on the object. There must be flexibility in applying the principles of natural justice, since urgent action can be taken for reasons of public health or safety.

The flexibility in the application of natural justice is generally expressed by the courts in the formulations: “The requirement of natural justice must depend on the circumstances of the case, the nature of the investigation, the rules that govern the court, the subject matters that have to be done and so on.

Legal intervention owes much to the Frank Committee, which recommends the rationale. This was enacted in the Tribunals and Inquiries Act 1958 S.12 (1). Now superseded by the Tribunal and Inquiries Act 1992, S. 10 (1), which requires the courts listed in the Act to issue a written or oral statement of the reasons for a decision if the individual so requests.

United States

The right of the administrative procedure begins with the constitutional requirements that no one should be “deprived of life, liberty or property” without a legal process. A citizen may not be deprived of his life, liberty, or property without having the opportunity to defend his rights. The constitutional provision that no one may be deprived of these without proper legal process is justified in this rule.^[18]

In Lawrence v. Texas^[19] fundamental elements of due process were laid down as are not concrete actions that deserve constitutional protection, but the relationships and commitments that make those actions.

The right to a fair trial at federal hearings is set by the Administrative Procedure Act at the state level by state administrative procedure laws.^[20] The agency’s decision as to whether to apply a judicial procedure is limited by the doctrine of the constitutional procedure.

The administration of justice under applicable laws and regulations is based on the principle that a person cannot be deprived of his life, liberty or property without proper legal procedures and guarantees. The Due Process is the foundation on which the Fair Hearing and Jurisdiction Building was built.^[21] A due process requires that a party is properly brought to justice and that it has the opportunity to prove facts that protect the individual or his property under the Constitution and the application of customary law.

In the cases of London v. city and country of Denver^[22], and Bi-Mettalic Investment Co. v. State Board of Equalization of Colorado^[23] the court has championed the theory that agencies are only bound by ordinary process requirements if they exercise a judicial function involving a relatively small number of people.

These two decisions show that a due process does not apply to all types of administrative measures, but only applies to administrative decisions.

Justice Frank in the case of In re Linahan^[24] defined rule against bias as to have some element of preconceived notion as if that would have been the case then according to him no person would have ever had a fair trial and no one ever will. According to him an individual birth with predispositions and education, formal or informal attitudes which precede reasoning in specific instances which are prejudices by definition.

Conclusion

In every modern state, the authority must have some discretion. The granting of discretion is not bad, but the transfer without any parameters is against the rule of law and natural justice.

Previously, the principles of natural justice were applied only to those bodies that exercise a quasi-judicial role, rather than purely administrative functions. But during the development of administrative law, the judiciary decided that there was no need to distinguish between administrative function and quasi-judicial function for the purposes of natural justice. Whatever the nature of power exercised by the administrative authority, they must follow the principles of natural justice. During the period of development, the administrative authorities are least concerned about the violation of individual rights.

In certain cases there is an exclusion of natural justice, and in such cases the validity of the administrative measure must be checked. In the modern administrative era, the administrative authorities have more discretion. The need to confer discretionary powers on the administrative authorities is based on a number of factors. Difficulties in formulating precise rules, the need for flexibility, the potential for experimentation, the need for urgent action, the assessment of circumstances, and the need for expertise are the most important of these factors. Discretion itself is not bad, but giving too much discretion without setting any parameters violates the rule of law and principles of natural justice.

There are many reasons for judicial review of the discretion of the administration. For these reasons, one of the most effective reasons for controlling administrative discretion is the principles of natural justice.

Principles of natural justice are an important factor in the area of ​​administrative law. It is used as a minimal process in the administrative process to create justice. Natural justice is the great humanizing principles embodied in nature itself. Natural judges are procedural rules that are followed when codified rules are missing. The principles of natural justice contain rules to be followed by the administrative authorities when exercising their discretion.

If the law that establishes discretion is silent on the procedures to be followed by the administrative authorities, the principles of natural justice apply.

If the administrative authorities do not follow procedural law when issuing a decision, the only legal remedy available to the party concerned is the court. The principles of natural justice, given their flexibility in application, are considered to be an important instrument for controlling the discretion of the administration. There are no rigid standards for the application of natural justice. The procedural elements vary according to the circumstances and circumstances of the case.

The Court acknowledges that the quality of the discretionary decision will be improved if the decision-maker gives the person concerned the opportunity to present his case before deciding on the matter.

The position of other countries like USA, UK is not much different with respect to the application of principles of natural justice in administrative actions.

[2] (1929) 1 Ch. 602, 624

[3] (1952) 1 K.B.189 at 195

[4] (1915) AC 120 (138)

[5] Drew V. Drew and Lebura (1855 (2) Macg. 1.8

[6] James Dunber Smith v. Her Majesty the Queen (1877-78 (3)

[7] Vionet v. Barrett (1885 (55) LJRD 39, 41)

[8]B.N. Baneijee, Natural Justice and Social Justice Before the Supreme Court, (1950-59), (1960), p.4.

[9] Gullapalli Nageswara Rao v. APSRTC, AIR 1959 SC 308.

[10] (1979) 4 SCC 782

[11] R v. Lambeth B. C ex p. Walter, (1994) 2 FCR 336,

[12] Paul Jackson,“Natural Justice,” Sweet and Maxwell, 1973 pp-10.

[13] Wade,“Administrative Law,” Oxford University Press, 8th Edn. 2000 pp-435.

[14] Cooper v Wandworth Board of Works,(1863) 14 CBNS 180

[15] Grimshaw v. Dunbar, [1953] 1 QB 408 

[16] (1963) 1 All E R 66

[17] Infant K (H), (1967)1 All E R 226

[18] Stuart v. Palmar, (74) N.Y.183,189.

[19] (2003) 123 S.Ct.2472

[20] Garry Lawson, Federal Administrative Law, American case book series, West Publishing Co.1998 at pp-346

[21] B.C.Sarma, Fair Hearing and Access to Justice, Eastern law House, 2012 at pp-16

[22] 210 US 373

[23] 239 US 441

[24] 138 F.2d 650 (2d Cir. 1943)

Note: This article has been published in Legal Desire International Journal of Law, 19th Edition (ISSN:2347-3525)