LAW MANTRA THINK BEYOND OTHERS
(International Monthly Journal, I.S.S.N 2321 6417)
Journal.lawmantra.co.in www.lawmantra.co.in
EXCEPTIONS TO THE PRINCIPLES OF NATURAL
JUSTICE BY MS.MOUSHUMI SARMAH
Introduction
It is beyond doubt that there are certain canons of judicial conduct to which all tribunals and
persons that have to give judicial or quasi- judicial decisions ought to conform. The
principles on which they rest are, we think, implicit in the rule of law. Their observance is
demanded by our national sense of justice.
- The Committee on Minister’s Powers
Rules of natural justice have developed with the growth of civilization. It is not the creation
of Constitution or mankind. It originated along with human history. In order to protect
himself against the excess of organized power, man has always appealed to someone which is
not been created by him and such someone could only be God and His laws, Divine law or
Natural law, to which all temporal laws must and actions must conform. It is of ‘higher law
of nature’ or ‘natural law’ which implies fairness, reasonableness, equity and equality.
Natural justice rules are not codified laws. It is not possible to define precisely and
scientifically the expression ‘natural justice’. They are basically common – sense justice
which are built- in the conscience of human being. They are based on natural ideals and
values which are universal in nature. ‘ Natural justice’ and ‘legal justice’ are substances of
‘justices’ which must be secured by both, and whenever legal justice fails to achieve this
purpose, natural justice has to be called in aid of legal justice.
Natural justice has an impressive history which has been recognized from the earliest times.
The Greeks had accepted the principle that ‘no man should be condemned unheard’. It was
first applied in ‘Garden of Eden’ where opportunity to be heard was given to Adam and then
providing him punishment.
Department: Law [ Pursuing LL.M(2014-15)], Gujarat National Law University, Attalika Avenue, Knowledge
Corridor, Koba, Gandhinagar (382007), Gujarat, India
Volume 2 ISSUE 5
, LAW MANTRA THINK BEYOND OTHERS
(International Monthly Journal, I.S.S.N 2321 6417)
Journal.lawmantra.co.in www.lawmantra.co.in
When we say about PNJ, there are mainly two principles which must be followed:
Nemo judex in causa sua: No man shall be a judge in his own cause, or the deciding
authority must be impartial and without bias.
Audi Alteram Partem: To hear the other side, or both the sides must be heard, or no man
should be condemned unheard, or that there must be fairness on the part of the deciding
authority.
The PNJ at one time applied only to judicial proceedings and not to administrative
proceedings but in Ridge vs. Baldwin,1 it was stated that the principles of natural justice are
applicable to ‘almost the whole range of administrative powers’.
This principle is applicable in India also. In State of Orissa vs. Binapani,2 the SC observed
that: “It is true that the order is administrative in character, but even an administrative order
which involves civil consequences…must be made consistently with the rules of natural
justice…”
Now it has been well established that the Principles of Natural Justice supplements the
enacted statute with necessary implications and accordingly administrative authorities
performing public functions are generally required to adopt “fair procedure”. A person may
also have legitimate expectation of fair hearing or procedural fairness/treatment but where
their observance leads to injustice they may be disregarded as Natural Justice Principles are
to be invoked in doing justice only. There are several well established limitations or
exceptions on the Principles of Natural Justice and the existence of such circumstances
deprives the individual from availing its benefits.
As the Principles of Natural Justice are ultimately weighed in the balance of fairness and
hence the Courts have been unwilling in extending these principles to situations where it
would cause more injustice rather than justice so, where a right to be fairly heard has been
denied, it is more probably a case of bad decision than of true exception and in such
situations the principles of natural justice can be discarded. The application of the principles
1
(1963) 1 Q.B 539
2
1967 AIR 1269, 1967 SCR (2) 625
Volume 2 ISSUE 5
, LAW MANTRA THINK BEYOND OTHERS
(International Monthly Journal, I.S.S.N 2321 6417)
Journal.lawmantra.co.in www.lawmantra.co.in
of natural justice can be excluded either expressly or by necessary implication but it must be
subject to the provisions of Article 14 and 21 of the constitution. 3
Exclusion of Natural Justice in India
Exceptions to Bias:
Doctrine of Necessity-
The doctrine of necessity is an exception to ‘Bias’. The law permits certain things to be done
as a matter of necessity which it would otherwise not countenance on the touchstone of
judicial propriety. The doctrine of necessity makes it imperative for the authority to decide
and considerations of judicial propriety must yield. It can be invoked in cases of bias where
there is no authority to decide the issue. If the doctrine of necessity is not allowed full play in
certain unavoidable situations, it would impede the course of justice itself and the defaulting
party would benefit from it. If the choice is between either to allow a biased person to act or
to stifle the action altogether, the choice must fall in favour of the former as it is the only way
to promote decision-making.4
Where bias is apparent but the same person who is likely to be biased has to decide, because
of the statutory requirements or the exclusiveness of a competent authority to decide, the
Courts allow such person to decide. In Ashok Kumar Yadav vs. Haryana, 5 the Court held that
a member of the Public Service Commission could not entirely disassociate himself from the
process of selection just because a few candidates were related to him. He should disassociate
himself with the selection of the persons who are related to him, but need not disassociate
with the selection of other candidates. Though his presence on the selection committee could
create a likelihood of bias in favour of his relations yet, since the PSC is a constitutional
authority, such a member cannot be excluded from its work and his presence in the
recruitment process is mandatorily required. The Court further held that where substitution is
possible, this doctrine would not apply.
Doctrine of Absolute Necessity-
3
http://www.legalservicesindia.com/article/article/exceptions-to-the-principles-of-natural-justice-1529-1.html
(last visited Dec. 6th, 2014)
4
S.P SATHE, ADMINISTRATIVE LAW 200 (Lexis Nexis, 2004)
5
AIR 1987 SC 454.
Volume 2 ISSUE 5
(International Monthly Journal, I.S.S.N 2321 6417)
Journal.lawmantra.co.in www.lawmantra.co.in
EXCEPTIONS TO THE PRINCIPLES OF NATURAL
JUSTICE BY MS.MOUSHUMI SARMAH
Introduction
It is beyond doubt that there are certain canons of judicial conduct to which all tribunals and
persons that have to give judicial or quasi- judicial decisions ought to conform. The
principles on which they rest are, we think, implicit in the rule of law. Their observance is
demanded by our national sense of justice.
- The Committee on Minister’s Powers
Rules of natural justice have developed with the growth of civilization. It is not the creation
of Constitution or mankind. It originated along with human history. In order to protect
himself against the excess of organized power, man has always appealed to someone which is
not been created by him and such someone could only be God and His laws, Divine law or
Natural law, to which all temporal laws must and actions must conform. It is of ‘higher law
of nature’ or ‘natural law’ which implies fairness, reasonableness, equity and equality.
Natural justice rules are not codified laws. It is not possible to define precisely and
scientifically the expression ‘natural justice’. They are basically common – sense justice
which are built- in the conscience of human being. They are based on natural ideals and
values which are universal in nature. ‘ Natural justice’ and ‘legal justice’ are substances of
‘justices’ which must be secured by both, and whenever legal justice fails to achieve this
purpose, natural justice has to be called in aid of legal justice.
Natural justice has an impressive history which has been recognized from the earliest times.
The Greeks had accepted the principle that ‘no man should be condemned unheard’. It was
first applied in ‘Garden of Eden’ where opportunity to be heard was given to Adam and then
providing him punishment.
Department: Law [ Pursuing LL.M(2014-15)], Gujarat National Law University, Attalika Avenue, Knowledge
Corridor, Koba, Gandhinagar (382007), Gujarat, India
Volume 2 ISSUE 5
, LAW MANTRA THINK BEYOND OTHERS
(International Monthly Journal, I.S.S.N 2321 6417)
Journal.lawmantra.co.in www.lawmantra.co.in
When we say about PNJ, there are mainly two principles which must be followed:
Nemo judex in causa sua: No man shall be a judge in his own cause, or the deciding
authority must be impartial and without bias.
Audi Alteram Partem: To hear the other side, or both the sides must be heard, or no man
should be condemned unheard, or that there must be fairness on the part of the deciding
authority.
The PNJ at one time applied only to judicial proceedings and not to administrative
proceedings but in Ridge vs. Baldwin,1 it was stated that the principles of natural justice are
applicable to ‘almost the whole range of administrative powers’.
This principle is applicable in India also. In State of Orissa vs. Binapani,2 the SC observed
that: “It is true that the order is administrative in character, but even an administrative order
which involves civil consequences…must be made consistently with the rules of natural
justice…”
Now it has been well established that the Principles of Natural Justice supplements the
enacted statute with necessary implications and accordingly administrative authorities
performing public functions are generally required to adopt “fair procedure”. A person may
also have legitimate expectation of fair hearing or procedural fairness/treatment but where
their observance leads to injustice they may be disregarded as Natural Justice Principles are
to be invoked in doing justice only. There are several well established limitations or
exceptions on the Principles of Natural Justice and the existence of such circumstances
deprives the individual from availing its benefits.
As the Principles of Natural Justice are ultimately weighed in the balance of fairness and
hence the Courts have been unwilling in extending these principles to situations where it
would cause more injustice rather than justice so, where a right to be fairly heard has been
denied, it is more probably a case of bad decision than of true exception and in such
situations the principles of natural justice can be discarded. The application of the principles
1
(1963) 1 Q.B 539
2
1967 AIR 1269, 1967 SCR (2) 625
Volume 2 ISSUE 5
, LAW MANTRA THINK BEYOND OTHERS
(International Monthly Journal, I.S.S.N 2321 6417)
Journal.lawmantra.co.in www.lawmantra.co.in
of natural justice can be excluded either expressly or by necessary implication but it must be
subject to the provisions of Article 14 and 21 of the constitution. 3
Exclusion of Natural Justice in India
Exceptions to Bias:
Doctrine of Necessity-
The doctrine of necessity is an exception to ‘Bias’. The law permits certain things to be done
as a matter of necessity which it would otherwise not countenance on the touchstone of
judicial propriety. The doctrine of necessity makes it imperative for the authority to decide
and considerations of judicial propriety must yield. It can be invoked in cases of bias where
there is no authority to decide the issue. If the doctrine of necessity is not allowed full play in
certain unavoidable situations, it would impede the course of justice itself and the defaulting
party would benefit from it. If the choice is between either to allow a biased person to act or
to stifle the action altogether, the choice must fall in favour of the former as it is the only way
to promote decision-making.4
Where bias is apparent but the same person who is likely to be biased has to decide, because
of the statutory requirements or the exclusiveness of a competent authority to decide, the
Courts allow such person to decide. In Ashok Kumar Yadav vs. Haryana, 5 the Court held that
a member of the Public Service Commission could not entirely disassociate himself from the
process of selection just because a few candidates were related to him. He should disassociate
himself with the selection of the persons who are related to him, but need not disassociate
with the selection of other candidates. Though his presence on the selection committee could
create a likelihood of bias in favour of his relations yet, since the PSC is a constitutional
authority, such a member cannot be excluded from its work and his presence in the
recruitment process is mandatorily required. The Court further held that where substitution is
possible, this doctrine would not apply.
Doctrine of Absolute Necessity-
3
http://www.legalservicesindia.com/article/article/exceptions-to-the-principles-of-natural-justice-1529-1.html
(last visited Dec. 6th, 2014)
4
S.P SATHE, ADMINISTRATIVE LAW 200 (Lexis Nexis, 2004)
5
AIR 1987 SC 454.
Volume 2 ISSUE 5
