12 April, 2018
This is the sixth blog piece in our series entitled “Those Were the Days”, which is published monthly. We hope you enjoy reading this as much as we have enjoyed putting this together.
The need for “rule of law” to prevail is repeatedly espoused by today’s social and political commentators. In light of this, it is important to revisit the origin of the doctrine of “rule of law”, and understand how it originated, so as to fully appreciate its significance and meaning.
In 1676, Sir Mathew Hale, the then Chief Justice of King’s Bench (1671-76), set out 18 tenets for dispensing of justice. The sixth tenet read as follows,
“That I suffer not myself to be possessed with any judgment at all till the whole business of both parties be heard.”
This very sound principle has two fundamental requirements.
The first is that the judge ought not to be predisposed to either one of the adversarial parties, and should not form a view on the merits of the matter before him until all the parties are heard. This of course is very difficult to do given that all persons including judges are bound to have their own views, opinions and preferences. However, through the ages the hallmark of an eminent member of the judiciary is the manner in which he/she overcomes inherent prejudices so as to ensure that the judicial adjudication is based only on the law, the facts based only on evidence on record before the court, and the interplay of the facts in relation to the law.
The second requirement is that “…the whole business of both parties be heard.”This requirement has application across the entire spectrum of any adversarial proceeding. All parties to a dispute have a right to be heard and to state their own case. In criminal cases, an accused person has the right to a full defence. Given the modern-day tendency of trials by media, where some so-called experts talk about the “rule of law”, it may therefore be emphasised that a very fundamental ingredient of the “rule of law”, is that no man should be condemned unheard. This is the maxim of “audi alteram partem”, which literally translated means, listen to the other side. The maxim of “audi alteram partem” has resulted in all democracies enshrining this principle as a constitutional right, espousing this principle to mean the right to a fair trial, which may even be extended to non-citizens facing criminal charges within the jurisdiction of the country concerned.
One of the pillars of the right to a fair trial, is to ensure procedural fairness, for it is believed that a court or tribunal adjudicating on a particular issue, if compelled to act in a procedurally fair manner, will generally always arrive at the right decision. In fact, procedural inequities or inconsistencies would always be arbitrary. An arbitrary act is implicitly violative of the right to equality guaranteed by Article 14 of the Constitution of India. One of the criticisms faced by our judicial system is that it is unduly procedural. While it is true that some procedures could well be simplified, it is not fully understood that the procedures are meant only to ensure fairness and equity between litigants inter se.
Indian courts have therefore very rightly intervened, in no uncertain terms, in situations where lack of procedural fairness impinges on the right of a party to be fully heard. If this were not the case, the process of seeking justice could result in injustices. If the case of any party is not allowed to be fully set out, the adjudication that follows must be struck down, for it is a natural law of justice that the adjudication follows only after the case of the litigants is presented and considered.
The great body of case law which has done precisely this, has resulted in the formulation of what is now known as “the principles of natural justice”. Although these follow fom Article 14 of the Constitution, these principles of procedural fairness, and the right to be heard, are so fundamental to the dispensation of justice, that our Supreme Court has in fact propounded that these principles would naturally exist even in the absence of Article 14 of the Constitution. In the Tulsiram case [(1985) 3 SCC 398], the Supreme Court observed that Article 14 did not create the principles of natural justice, but rather that Article 14 is only their constitutional guardian. In the famous Maneka Gandhi case [(1978) 1 SCC 248], Justice Bhagawati noted these to be, “a great humanising principle”, and went on to hold that procedural fairness is implied even in situations where the statute does not provide for it, thus adopting the lofty concept set out by Byles J. in Cooper v. Wandsworth Board of Works [(1863) 143 ER 414].
While the courts have consistently upheld the principles of natural justice, in general, several nuances within this broad framework have arisen over time, which have resulted in some controversial decisions. One of the questions that arose is whether the principles of natural justice were also applicable to administrative bodies such as selection boards. In Kraipak’s case [(1969) 2 SCC 262], a five judge bench observed that the dividing line between the administrative powers and quasi-judicial powers is quite thin and is being obliterated, and then set out the common-sense principle that one has to look to the nature of the power conferred, the framework of the law conferring that power, the consequences ensuing from the exercise of that power, and the manner in which that power is expected to be exercised. The five-judge bench, then concluded, what to me remains one of the most important principles ever articulated by the judiciary, when it said that, “under our Constitution the rule of law pervades over the entire field of administration”.
This decision set at rest the body of emerging judicial opinion according to which, unless the authority concerned was required by the law under which it functioned to act judicially, there was no room for the application of the principles of natural justice. This was famously reiterated in the Maneka Gandhi case, where it was held that an unjust decision in an administrative enquiry may have far more serious consequences than a decision of a quasi-judicial enquiry, and hence the principles of natural justice must apply equally in an administrative enquiry which entails civil consequences.
It is noteworthy that in the Maneka Gandhi case, it was argued that the circumstances were such, that having a hearing before impounding a passport would defeat and paralyse the administration of the law, and in such cases the rule of “audi alteram partem” ought not to be applied. The court however held that merely because the traditional methodology of a formalised hearing may have the effect of stultifying the exercise of the statutory power, did not mean that the “audi alteram partem” rule should be wholly excluded. The court must make every effort to salvage this cardinal rule to the maximum extent permissible in a given case.
A five-judge bench in M.S. Gill v. Chief Election Commissioner [(1978) 1 SCC 405], re-iterated this principle saying that, the dichotomy between administrative and quasi-judicial functions vis-à-vis the doctrine of natural justice is presumably obsolescent after Kraipak in India, and Schmidt in England.[1]
Although, the interests of expediency have subsequently resulted in some decisions where courts have held that strict rules of evidence need not always be followed, the inescapable conclusion even in such exceptional situations, is that there must be fair play in action. In Kishinchand Chellaram v. CIT [1980 (Supp) SCC 660], it was held that even though strict rules of evidence might not be applicable, the tribunal cannot rely upon hearsay.
In the landmark case of S.L. Kapoor v. Jagmohan & Ors. [AIR 1981 SC 136(1)], the question that arose is whether the rules of natural justice should be followed even when there are undisputed facts that speak for themselves, since no purpose would be served by following the process of formal notice, as the result would ultimately be the same. The Supreme Court concluded that “merely because facts are admitted or are indisputable it does not follow that natural justice need not be observed.”
In the obiter, the Supreme Court seems to have carved out an exception in a situation where, on admitted or indisputable facts, only one conclusion is possible, and one penalty permissible, in which case the court may not issue its writ to compel observance of natural justice. However, it proceeded to clarify that the court in such a case may not interfere not because the need for natural justice is dispensed with, but only because courts do not issue writs that are futile. It then proceeded to clarify that such dispensation would be pernicious to apply in situations where conclusions are controversial, however slightly, and penalties are discretionary, and accordingly concluded that absence of prejudice is not sufficient grounds to dispense with the rules of natural justice.
In S.L. Kapoor’s case, the Supreme Court also clarified what may be considered to be a civil consequence, and stated that everything that affects a citizen in his civil life, inflicts a civil consequence.
As the jurisprudence continues to evolve, there will no doubt be several difficult issues that the courts will grapple with. One such question, which oddly is yet to be fully resolved, is whether the right to be heard includes the right to rebut the counterparty. While this may appear somewhat axiomatic, and some courts have mentioned this to be the case, an authoritative exposition of this principle will no doubt be forthcoming.
[1] Schmidt v. Secretary of State for Home Affairs, (1969) 2Ch 149
For further information, please contact:
Percival Billimoria, Partner, Cyril Amarchand Mangaldas
percy.billimoria@cyrilshroff.com
