Exceptions to Principles of Natural Justice: Part IV

By Adv. Shriya Maini.

First Part of this Series, can be accessed here.

Second Part of this Series, can be accessed here.

Third Part of this Series, can be accessed here.

  • Where no right of the person is infringed

Where no right has been conferred on a person by any statute nor any such right arises from Common Law, the Principles of Natural Justice are not applicable. This can be illustrated by the decision of the Supreme Court in J.R. Vohra v. Indian Export House (P) Ltd., wherein the Delhi Rent Control Act made provisions for the creation of limited tenancies. More specifically, Sections 21 and 37 of the Act provided for the termination of limited tenancies. The combined effect of these Sections was that after the expiry of the term a limited tenancy could be terminated and warrants of possession could be issued by the authority to the landlord without giving any notice of hearing to the tenant. Upholding the validity of warrants of possession without complying with the Principles of Natural Justice, the Supreme Court held that after the expiry of the period of any limited tenancy, a person had no right to stay in possession and hence, no right of his was prejudicially affected which could warrant the application of the Principles of Natural Justice.

In the same manner, the Court in Andhra Steel Corporation v. Andhra Pradesh State Electricity Board held that a concession can be withdrawn at any time without affording any opportunity of hearing to the affected persons except when the law requires otherwise or when the authority is bound by promissory estoppels. In this case, the Electricity Board had withdrawn the concession in electricity rate, without any notice and hearing to the appellant. Therefore, where an order of extension was cancelled before it became operational or the order of stepping up the salary was withdrawn before the person was actually paid or the services of the probationer terminated without charge, the Principles of Natural Justice were not attracted.

  • Doctrine of Necessity: An inevitable mistake

All the other exceptions have been attributed to the first Principle of Natural Justice of audi alterum partem or Right to Fair Hearing except for this one Rule against bias or Nemo Judex in causa suo.

Very simply put, disqualification on the ground of bias against a person will not be applicable if he is the only person competent or authorized to decide that matter or take that action. The primary objective of providing this exception is that in its absence, there would be no other means of deciding a particular matter and the whole administration would come to a grinding halt. However, it is of utmost importance that the necessity must be genuine and real.

Therefore, in J. Mohapatra & Co. v. State of Orissa, the doctrine of necessity cannot be invoked where the members of the Textbook Selection Committee were themselves the authors of books because the constitution of the selection committee could have been changed very easily by the government.

The case of Charan Lal Sahu v. Union of India (Bhopal Gas Disaster case) is a classic example of the application of this exception. In this case, the constitutional validity of the Bhopal Gas Disaster (Processing of Claims) Act, 1985, which had authorized the Central Government to represent all the victims in matters of compensation award, had been challenged on the ground, that because the Central Government owned 22% shares in the Union Carbide Company and as such was a joint tortfeasor, there was a conflict between the interests of the government and that of the victims. Negating the contention, the Court observed that even if the argument was correct, the doctrine of necessity would be applicable in that situation because if the Government did not represent the whole class of gas victims, no other Sovereign body could so represent them. On these grounds, the Principles of Natural Justice were not attracted therein.

  • Exclusion in case of Government Policy Decision

In BALCO Employees’ Union v. Union of India, the Hon’ble Apex Court was of the view that in taking policy decisions in economic matters, the Principles of Natural Justice have no role to play. The facts of the case were as follows. The employees had challenged the government’s policy decision regarding disinvestment in Public Sector Undertakings. The Court held that even though the workers may have had interest in the decision, unless the policy decision to disinvest is capricious, arbitrary, illegal or uninformed/contrary to law, the decision could not be challenged on the grounds of violation of the Principles of Natural Justice. Therefore, if in exercise of executive powers, the government takes any policy decision, Principles of Natural Justice can be excluded, because it will be impossible and impracticable to accord a formal hearing to all those who may be affected whenever a policy decision is taken and at times it will be against public interest to do so. Hence, the public interest ought to be kept foremost on the priority list to that of individual interest in all circumstances, especially in India- the world’s largest democracy.

  • Exclusion in case of Contractual Arrangement

In the State of Gujarat v. M.P. Shah Charitable Trust, the Hon’ble Supreme Court held that the Principles of Natural Justice were not attracted in case of termination of an arrangement in any contractual field. This is due to the prime reason that termination of an arrangement/agreement was neither a quasi-judicial nor an administrative act, so that a duty to act judicially was not attracted for the question of Principles of Natural Justice to even arise.

  • ‘Useless Formality’ Theory: When ‘Hearing’ a futile ritual?

The most recently carved out ‘Useless Formality’ theory or the Doctrine of ‘Futile Exercise’ is yet another exception to the application of the Principles of Natural Justice. It stipulates that, where, on the admitted or undisputed facts, only one conclusion is possible and under the law only one penalty is permissible, the Court may not insist on the observance of the Principles of Natural Justice because it would be futile to order their observance.

In SL Kapoor v. Jagmohan, R. v. Eailing Magistrate’s Court, the Courts have opined that where the result would not be different, and the same is “demonstrable beyond doubt”, an  Order of Compliance with the Principles of Natural Justice will not be justified. Both the operative terms herein are “admitted facts” and “demonstrated beyond reasonable doubt”. These two prerequisites must be satisfied prior to the application of this theory. It rests on the basic premise that facts are not for the Courts but authorities to consider. Even Garner, in “Administrative Law”, mentions, that a slight proof, that the result would have been different, is sufficient enough to reject the compliance of this theory. In simple terms, this is the theory for open-shut cases only, where, if even the thought of another plausible conclusion arises, the admitted facts are laid bare in front of the Judges to mandate compliance of Principles of Natural Justice.

The Supreme Court applied this theory in Dharmarathmakara Rai Bahadur Arcot Ramaswamy Mudaliar Educational Institution v. Education Appellate Tribunal. Factually, the case dealt with a lecturer, who had been granted leave for completing his M. Phil. However, in violation of her leave conditions, she joined a Ph.D. Course instead. She was given a Notice and after considering her reply, wherein she had admitted joining the Ph.D. Course, her services were terminated. She challenged the termination order before the Education Tribunal on the ground that Sections 6-8 of the Karnataka Private Educational Institutions (Discipline and Control) Act, 1975 provided for a statutory enquiry to be held before termination of the service of any teacher. The Tribunal, and subsequently, the High Court, in appeal, held the termination invalid for failure to comply with the statutory requirement of the Act. However, allowing the appeal, the Hon’ble Supreme Court held that opportunity to show cause was not necessary where facts are undisputed and the affected person could not put forth any valid defence even when opportunity was given by the Court. The Court observed that giving opportunity of hearing is a check and balance concept that no one’s rights be taken away without hearing, where the ‘statute so requires’, but this is not necessary when one admits one’s violations. Thus, in cases where grant of opportunity in terms of the Principles of Natural Justice does not improve the situation, “useless formality” theory is pressed into service’.

However in Malloch v. Aberdeen Corporation, Lord Reid and Lord Wilberforce refused to accept the argument of the respondents contending the ‘useless formality’ theory and maintained that the latter has still not been able to firmly establish itself in Administrative Law because there exists a strong opinion which suggests that this theory is wrong, as a Court cannot prejudge any issue. This position has been reiterated in Glynn v. Keele University as well. Moreover, Ackner, J. has said that the ‘useless formality theory’ is a dangerous one and, however inconvenient, natural justice must be followed. His Lordship observed that ‘convenience and justice are often not on speaking terms’. More recently, Lord Bingham, in his article, “Should Public Law Remedies be Discretionary?” has deprecated the application of ‘useless formality theory’ in R. v. Chief Constable of the Thames Valley Police Forces, ex p. Cotton by giving a plethora of reasons.

A detailed and emphatic criticism of the ‘useless formality theory’ has been made much earlier by Prof. D.H. Clark in ‘Natural Justice, Substance or Shadow’ of Canada contending that Malloch and Glynn were wrongly decided. Foulkes Craig and others say that the Court cannot prejudge what is to be determined by the decision-making authority. Wade says that while futile writs may not be issued, a distinction has to be made according to the nature of the decision. De Smith says that Courts must not have committed themselves to any one view, though discretion always rests with the Court. Thus, in relation to cases relating to admitted or indisputable facts, there is a considerable divergence of opinion whether the applicant can be compelled to prove that the outcome will be in his favour or he has to prove a case of substance or if he can prove a ‘real likelihood’ of success or if he is entitled to relief even if there is some remote chance of success.

NOTE: Links to the preceding parts of this series have been included at the beginning of this post. This is the conclusive part of this series of articles.

About the Author

Advocate Shriya Maini is a young, bright, scholarly, advocate turned entrepreneur, currently practicing at the Supreme Court of India, the Delhi High Court and the District Courts at New Delhi.  She specializes in dispute resolution and as an unabashed feminist, particularly enjoys criminal litigation. She is a graduate of Gujarat National Law University, India who then pursued the Bachelor of Civil Laws Programme on a full scholarship (Dr. Mrs Ambruti Salve Scholarship) sponsored by Dr. Harish Salve, Senior Advocate, from the University of Oxford, specializing in International Crime. As a recipient of the Oxford Global Justice Award 2015 for Public International Law, she assisted the President of the International Residual Mechanism for the Criminal Tribunals (MICT) at The Hague, Netherlands. She is now back in the Courts of New Delhi, India to pursue her passion in litigation. Additionally, she has recently been appointed as a Visiting Professor for International Criminal Law at National Law University, Delhi, India.

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