“Justice is the virtue of social institution, as truth is the system of thought.” ~John Rawls
Justice is an inevitable part of a “good life”. Imagine the life of a person in the Dark Age of 14-15th century, where the whole legal system was making a mockery of justice, the punishments they got as the virtue of an individual, or on an opinion freely expressed. Many scholars, intelligent people of that age like Socrates, Galileo, got executed with death penalty for freely expressing their thoughts or opinions, which were against the opinion of so-called religions or Monarchs at that time without a proper court trial. Is that a just system where a person can even think of living?
Audi Alteram Partem in Natural Justice
The concept of Natural Justice has not come so naturally to humans on Earth. For that too, many gave up on their lives, just to make sure the upcoming generation could live in a free environment, with the freedom to express their thoughts or opinions without crucifixion. In Latin, there is a very famous maxim Audi Alteram Partem – a key principle of Natural Justice, which means to hear the other side. The right to be heard is ensured by providing procedural fairness to both the parties, such as:
- Every party shall get an opportunity to be heard.
- No one shall go unheard;Every individual shall get a right to plea and represent themselves in the court of justice;Ensuring fair hearing and fair justice to both parties;No judgment can be announced without hearing both parties, except ex-parte (where one party is absent even after issuing a summon)
Audi Alteram Partem through Constitutional Lens
Justice Krishna Iyer famously stated that “Natural Justice is not a creation of Constitution but inherent in human values”. However, Indian Constitution does not explicitly mention the concept of Natural Justice but it has been engraved in various fundamental rights. Whenever a person’s right to life and personal liberty is under jeopardies, the very substantive and procedural due process of law under article 21 should be read with fairness and in an unbiased way. The other article 14 states the equality before the law and equal protection of the law, which means the law is equal for everyone, no individual is above law, and equal protection should be given to everyone incorporating the fundamental principle of Natural Justice.
That means a person in any case shall not be deprived of the opportunity of being heard, otherwise it should be treated as a violation of fundamental rights. Here are some cases in which the idea of audi alteram partem is incorporated while giving the judgment or order by the Supreme Court of India.
Case Laws on Audi Alteram Partem
Mohinder Singh Gill v. Chief Election Commissioner (1977)
The Supreme Court held that the concept of natural justice should be in every action whether it is judicial, quasi-judicial, administrative and or quasi-administrative work which involve civil consequences to the parties. The Court said that “The philosophy behind natural justice is participatory justice in the process of democratic rule of law. In the vital area of election where people’s faith in the, democratic process is hypersensitive it is realism to keep alive audi alteram even in emergencies.”
Maneka Gandhi v. Union of India (1978)
The Supreme Court widely interpreted Article 21 through the glance of Natural Justice, where Mrs Gandhi was not given an opportunity to be heard before impounding the passport violating the principle of Natural Justice. The Apex Court did not question the power of Passport Authority in impounding the passport. However, the Court firmly held that before passing any order against Maneka Gandhi, the principle of audi alteram partem should have been upheld, giving her a chance of being heard.
State of Orissa v. Binapani Dei (1967)
The Supreme Court upheld the order of Orissa High Court’s decision, invalidating the State order of compulsory retirement of Binapani Dei after refixing the date of birth by the State without giving any fair opportunity to be heard is the complete violation of the principle of Natural Justice.
The Apex Court expressed that “The rule that a party to whose prejudice an order is intended to be passed is entitled to a hearing applies to judicial tribunals and bodies of persons invested with authority to adjudicate upon matters involving civil consequences. It is one of the fundamental rules of our constitution ‘setup that every citizen is protected against exercise of arbitrary authority by the State or its officers. Duty to act judicially would therefore arise from the very nature of the function intended to be perform; it need not be shown to be super-added. If there is power to decide and determine to the prejudice of a person, duty to act judicially is implicit in the exercise of such power. If the tails of justice be ignored and an order to the prejudice of ‘a person is made, the order is a nullity. That is a basic concept of the rule of law and importance thereof transcends the significance of a decision in any particular case.”
Audi Alteram Partem under the Civil Procedure Code
The principle of Natural Justice is the cornerstone of fair, unbiased, reasonable judiciary and administrative processes incorporating, various principles such as:
Right to be heard: both parties provided enough time to present themselves before the court. This principle also includes notifying the parties about the proceeding, having access to relevant documents, right to present evidence and argue for the case.
Procedural fairness: Natural Justice safeguards the procedural fairness in a matter by following prescribed rules and procedures laid down under the Code of Civil Procedure. The procedure shall be conducted fairly and transparently including in matters related to:
- Service of summon: Parties should be provided with summon notice and other legal documents so that they can have fair opportunity to present their case;
- Witness examination: Witnesses must be examined impartially. Parties should be given the opportunity to cross-examine the witnesses.
- Evidence and argument: Allowing parties to argue their cases based on the evidence provided.
- Judgment and decree: The Court must provide reasoned judgment and ensure that any decree passed is just and fair.
Audi alteram Partem in Bharatiya Nagarik Suraksha Sanhita
The Bhartiya Nagarik Suraksha Sanhita (earlier known as the Code of Criminal Procedure)
- Section 348 addresses the principle of Audi Alteram Partem, which deals with the court’s power to summon the witnesses, present material evidence, and ensure that all parties involved have an opportunity to present the case and be heard before a decision is made.
- Section 223: deals with the examination of complainant and the accused shall be allowed of being heard before taking cognizance of an offence. The accused person shall be given a fair chance of hearing by producing evidence and having the right to cross-examine witnesses with the help of legal counsel, all this before an investigation is done by the police and before a charge sheet is filed.
Conclusion
Principle of Natural Justice asserts that justice should be based on the law of nature rather than on the law of man. Without giving an opportunity of being heard to all the stakeholders, justice cannot flourish. It is the fundamental aspect of any administrative and judiciary process, whenever the right or an interest of an individual gets affected. Audi alteram partem is the essential component of rule of law for providing free and impartial justice, without coming under the pressure of executive and legislative bodies of the State.
The principle of audi alteram partem has been decoded by our intern, Ms Neha Patidar. She has been assisting the team in bringing informational legal blogs.
