Exceptions to Principles of Natural Justice: Part I

By Adv. Shriya Maini.

“There are no Victors in the game of law until the Court verdicts…”

Justice is the most important task of Rule of Law of the State. The role of an attorney is an integral part of the justice system of the State which fails its society if the litigant is not zealously represented. The prime object of this post is to develop an understanding of exceptions to Principles of Natural Justice with a special emphasis on its legal aspects conducive to equip the law students with a profound understanding of how an advocate ought to approach a case procedurally.

It has been accepted that law is a dynamic and living field and by merely clinging on to the procedures or strict observance of the rules never can a fair and satisfactory outcome be achieved. The imaginative application of mind and the appropriate interpretation of the various rules and provisions of the laws is a significant area where the judges have an essentially fundamental role to play in this regard. The supreme and sovereign power of the State to make laws, via the organ of legislature, is the most essential feature of a democratic establishment like India, and the laws enacted by the legislature are liable to be used arbitrarily in the absence of a well-laid down procedure for its application and administration. The Principles of Natural Justice indeed go a long way to remedy the situation arising out of the departure from this established procedure.

Natural Justice is another name of common sense Justice, and its rules are not codified canons but principles, ingrained into the conscience of man. Natural Justice is the administration of Justice in a common sense liberal way. Justice based substantially on Natural Justice is that based substantially on natural ideals and human values. Thus, the administration of justice is to be freed from the narrow and restricted considerations which are usually associated with a formulated law, involving linguistic technicalities and grammatical niceties. In the early 1950s, in the famous English case of Abbott vs. Sullivan, it was stated that “the Principles of Natural Justice are easy to proclaim, but their precise extent is far less easy to define”. Even till today, there is no single definition of Natural Justice and it is only possible to enumerate with some certainty, the main principles. The expressions “natural justice” and “legal justice” do not present a water-tight classification. It is basically the substance of justice which is to be secured by both, and whenever legal justice fails to achieve this solemn purpose, natural justice is called in aid of legal justice. In simpler words, it supplies the omissions of a formulated law. Natural justice relieves legal justice from unnecessary technicality, grammatical pedantry or logical prevarication.

Indeed, it is plausible to exclude the otherwise mandatory, obligatory and necessary Principles of Natural Justice in cases of express or implied statutory exclusion, confidentiality, impracticability to provide hearing, interim preventive action, purely legislative or administrative actions (such as academic evaluation or disciplinary action) etc. To what extent and in what circumstances would it be conducive to apply these exclusions is a matter to be determined by the judiciary from case to case, based on individual facts and circumstances. An unfettered power has been given to the judicial interpreters who must exercise extreme care and caution while applying these Principles. Accordingly, all the criteria for exclusions have been beautifully and rightfully carved out of precedential evidences. Judicial creativity and activism may be observed at their peak, in each and every case, as discussed hereafter. Except for statutory exclusion where the Legislators are able to determine the situation prior to its occurrence, and are thus able to provide for the exceptions to be made within the Act itself, all the other criteria for exclusion may be considered a boon, granted by the adjudicating authorities. Another very essential factor to be kept in mind is that it is of utmost necessity to comply with the Principles of Natural Justice in all situations, but only when it becomes absolutely impossible to do so, can these well laid out exceptions be resorted to, without any available viable alternative.

The exceptions or exclusions may be based on statutory provisions {as in the case of Dr. Umrao Singh Chaudhary v. State of M.P. or a legislative action, as elaborated in Charan Lal Sahu v. Union of India and Sunder Lal Kanya Lal v Collector, Thane} or like in the very famous case of Maneka Gandhi v. Union of India, emergency/prompt action in case of public interest, public safety or public health was found to be a reasonable, valid and justifiable ground for exclusion of Principles of Natural Justice. Ramarao v. Lokayuta stresses on the requirement to maintain confidentiality, while Bihar School Exam Board v. Subhash Chandra relies on grounds of impracticability so as to legitimately exclude Principles of Natural Justice without attracting liability in any manner. Interestingly, even academic evaluation (Jawaharlal Nehru University v. B.S. Nariwal); interim disciplinary action (Abhay Kumar v. K. Shrinivasan) and contractual transactions based on State of Gujarat v. M.P. Shah Charitable Trust, have been deliberately kept outside the ambit of mandatory compliance of Principles of Natural Justice. Lastly, the very recent and perhaps the most interesting exception to Principles of Natural Justice is that of the Useless Formality Theory which was explicitly developed in Dr. B.A.R.M. Educational Institution v. Education Appellate Tribunal.

A grey area of law where the legislature is silent or perhaps, the drafters could not have imagined or intended for situations to take such a spin. It is indeed captivating to watch as a lawyer, how the Courts have appropriately stridden in to fill the gaps instead of being mute silent spectators, following in the footsteps of the stalwart Lord Denning. I aim to elaborate on all the dimensions in this series of posts (whether moral or legal), in order to advance an argument for and against the Exceptions to Principles of Natural Justice and leave it upto you to assess for yourself its current need and necessity.

• Exclusion by a Statute – “Catering to the legislator’s wish”.

The basic question is that whether [though a Quasi-Judicial obligation to hear the parties may arise under common law owing to the mandate of Principles of Natural Justice] in view of the nature of the functions, can an obligation to follow the Principles of Natural Justice be excluded by legislation?

De Smith in his book “Judicial Review” very beautifully sums up this detailed concept of the first exclusion criteria in a single sentence – “Provided it does so “clearly and expressly” (for instance Wiseman v. Boneman), an act of the Parliament may dispense with the requirements of fair procedures where they would otherwise be required”. This statutory exclusion seems to be a very powerful tool, thereby highlighting the importance of Doctrine of Legislative Supremacy and Parliamentary Sovereignty which may altogether do away with the requirements of a notice or decline the necessity of an oral hearing to ensure administrative expediency and efficiency or dispose of the matter sans particular kinds of objections and representations.

In U.S.A and India, application of the Principles of Natural Justice can be excluded either expressly or by necessary implication, subject to the provisions of Articles 14 and 21 of the Indian Constitution (where of course the requirement cannot be dispensed with by ordinary legislation).

For the first time in Indian Judicial history, the exclusion of right to hearing was categorically justified by the Apex Court due to it being expressly provided for in the statute of compulsory retirement in the case of Union of India v. J.N. Sinha. In contrast to this express exclusion, the Supreme Court in Dr. Umrao Singh Choudhary v. State of M.P. & Anr., and Union of India v. M.E. Reddy justified that an implied exclusion could possibly exclude the mandatory requirement of complying with the principles of Natural Justice. This implied exclusion primarily depends upon how a judge interprets a statutory provision so as to exclude the Principles of Natural Justice. For instance, the word “require” was interpreted to be conferring an “unqualified” and “absolute” power by the Courts in the latter. However, this judgement when put to severe constructive criticism, highlighting that there is indeed no inconsistency between discretion and Principles of Natural Justice. The Courts must not lightly infer exclusion of hearing in a situation where a person suffers adversely. Even though the impugned order was passed by the President, the highest authority, the mere vesting of powers in a higher authority does not ipso facto exclude application of Principles of Natural Justice. Another instance was, before taking over non-government schools when the Ordinance passed contained an explicit provision for hearing but the Act following the Ordinance deliberately omitted it, the Supreme Court held that by implication, the Legislature excluded the rule of hearing.

The Apex Court in very significant and beautiful words in Umrao Singh case emphatically stated that: “…. The Principles of Natural Justice do not merely supplant the law but supplement it. Its application thus, may be excluded by either, express or necessary implication.” Therefore, if the statute, expressly or by necessary implication, precludes the rules of Natural Justice, it will not suffer invalidation on the ground of arbitrariness.

However, it is necessary that this exclusion based Principle must be used strictly and not be stretched too far for it could become an untamed horse thereby leading to potential abuse and gross misuse with tones of litigations and writs filed in the Courts, wherein all the Respondents would hide under the garb of what we call Statutory Exclusion and claim exclusion of Principles of Natural Justice, even when the statute nowhere calls for such an exception. It must be kept in mind that in R. v. Devon and Cornwell Rent Tribunal Ex. P. West, the Court clarified that a subordinate legislation purporting to exclude a hearing should be strictly construed.

But what is interesting to note here is that if the discretion to exercise audi alterum partum is conferred by a statute, it “may” constitute denial of Principles of Natural Justice if fairness clearly demands! The use of the word “may” highlights the aspect that this is primarily upto the Courts to apply their judicial conscience and fairplay, to determine from case to case, based upon the facts and circumstances, where exactly can such Principles be omitted from being declared mandatory and whether the discretionary power therein, is being exercised appropriately or not. Moreover, excluding one mode of hearing by an express provision laid down in the statute may not necessarily exclude the others, such as an express statutory provision excluding a duty to give reasons has been held not to exclude a duty to disclose the substance of a case. Through the application of the maxim expressio unius est exelusio alterius (expression of one thing implies the exclusion of another), protection might be sought even when impliedly such exclusion may be made but Courts have expressed serious reservations about the application of this maxim. The most important criterion to decide whether there exists a statutory exclusion, either implied or express, is to gather the legislative intent that this procedural safeguard whether the same should be excluded, rather than it being a case of a mere omission which may be filled in by the Courts. For example, a State may provide for disclosure of certain and not all documents or a duty to give reasons may not arise in respect of circumstances not listed in the specifically excluded regulations.

Interesting cases of Union of India v. Tulsi Ram Patel and Sahadeo Singh v. Union of India came up with respect to such a statutory express exclusion furnished by Art. 311(2) of the Indian Constitution. The issue before the Hon’ble Supreme Court of India concerned the interpretation of Articles 309, 310 and 311 of the Constitution of India and in particular after the amendment of Clause 2 of Article 311 by the Constitution (42nd Amendment) Act, 1976, more specifically the 2nd proviso to that clause. Though the subject matter of the decision related to a service matter and the safeguards conferred in Article 311 concerned the persons employed in civil capacities under the Union of India or the State, the Apex Court scrutinized the Principles of Natural Justice in depth. It was categorically stated that the Principles of Natural Justice were not a creation of Article 14 of the Constitution of India and that Article 14 was not their begetter but their Constitutional Guardian. The Apex Court went on to emphatically state that: “… Whether it was practicable to hold enquiry or not must be judged in the context of whether it was reasonably practicable to do so. It is not a total impracticably clause, thus, the matter falls within the realm of discretionary power.”

But the Apex Court in Chief Security Officer v. Singasan Rabi Das and Jaswant Singh v State of Punjab cautioned that it may question the very ground that to dispense with the enquiry was sufficient/relevant and quash such an exclusion if there was no satisfactory basis to justify the reasons of impracticability of holding an enquiry.

Another exception to the Principles of Natural Justice may be impliedly inferred, if the parent statute itself contains a procedure to be followed as enumerated in the cases of Malloch v. Aberdeen Corporation and Institute of Chartered Accountants of India v. L.K. Ratna. However, if the prescribed procedures fall deficit in any of the norms of Natural Justice, then they may have to be supplemented with the Rules of Natural Justice. In the Ratna Case, the Apex Court opined: “…Principles of Natural Justice must be read into the unoccupied intricacies of the statute unless there is a clear mandate to the contrary.” On the other hand, the proposition that a detailed, fair, complete and just statutory procedure might imply automatic exclusion of Principles of Natural Justice (evolved in Furnell v. Whangarei High Schools Board) has been thoroughly refuted and the same suggests that Furnell can only be invoked, if at all, when the relevant statute prescribes a fair and full procedure by evaluating this procedure with reference to Principles of Natural Justice and filling in all the gaps present, by bringing in the norms of Natural Justice. The exemplary Indian case parallel to Furnell is that of Subhash Oil Industries v. State of U.P. wherein the Court categorically rejected the contention of the consumer reiterating that the Sections 57 and 57A of the Electricity Supply Act, 1948 lay down an exhaustive procedure for enhancement of electricity rates and therefore, no right to be heard could be claimed therein. Thus, the Furnell Doctrine ought to be used with great care and caution, especially in India.

Part II of the series can be accessed here.

Part III of the series can be accessed here.

Part IV (Conclusive Part) of the series can be accessed here.

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.