The 'right to be heard
' originates from the Latin maxim "audi alteram partem
means 'no one should be condemned unheard. The right to be heard is
considered sine qua non of every civilized society. This signifies that even if
the authority already knows everything and the person has nothing more to tell,
even then this rule is attracted unless the application of this rule would be a
mere empty formality.
Natural justice may mean simply 'the natural sense of what is right and
wrong' and even in its technical sense it is now often equated with 'fairness'.
It is believed that if the decision-making authority is apprised of all relevant
facts and issues involved in a dispute, it will come to the right decision, for
it will be difficult for the authority, unless it is completely perverse, to
take a decision ignoring the material on record. Thus, giving a hearing to a
person before making a decision affecting him, leads to good decisions by the
The horizons of the right of hearing have been constantly expanding since 1962.
In that year, in Ghanshyan, the Supreme Court embarked on an expansionist
course in this respect; the Court recognized the nature of the right affected
and the power conferred on the authority as controlling the question of hearing
to the party concerned.
Since 1970, a further expansion in the right of hearing to the person affected
by the administrative process has been consummated by the courts adopting the
strategy. It was in the trend-setting pronouncement by the Supreme Court in A.K.
Kraipak v. Union of India
 that the new liberal trend in judicial thinking was
given vent. Before Kraipak, the distinction between administrative
and quasi-judicial functions used to be a major element in deciding the question
of entitlement to the right to hearing. Kraipak fundamentally changed this
The Supreme Court now categorically propounded the view that the
distinction between quasi-judicial and administrative ought to be discarded for
a hearing being given to the affected party.
In Maneka Gandhi v. Union of India
, The Supreme Court ruled that the
consequences of impounding a passport would be to impair the constitutional
right (under Art. 21 of the Constitution) of the passport holder to go abroad.
The authority can exercise its power only on certain grounds as set out in S. 10
The authority must apply its mind to the facts and circumstances of a given
case and decide whether any ground exists to justify such impounding and the
authority is required to record in writing its reasons for making the order. An
appeal lies from the authority's decision to the Central Government. In these
circumstances, the Court ruled that the power to impound a passport
is quasi-judicial in nature, and rules of natural justice would apply in
exercising the power.
Right to be heard as part of the principle of natural justice
The rules of natural justice have assumed so much significance in the modern
administrative process that the Supreme Court characterized them as
"foundational and fundamental concepts" which are "part of the legal and
Natural justice comprises of two components:
- Doctrine of audi alteram partem.
- Doctrine of bias.
Principles of natural justice are required to be observed by a Court or tribunal
before a decision is rendered involving civil consequences. Their application
may be subject to the provisions of a statute or statutory rule. Hearing before
a decision is the sine qua non of such a proceeding. Therefore, to superimpose
the requirement of hearing in an administrative proceeding, the courts would
characterize it as quasi-judicial. Quasi-judicial thus came to be linked with
natural justice; both of them became concomitant concepts. If a proceeding
before an administrator is regarded as quasi-judicial, giving a hearing to the
concerned person becomes inevitable.
Situations, where the Right to be heard, can be claimed as a basic right:
Lis Inter Partes:
It is usual to characterize a function as quasi-judicial when
there are lis interpartes, and administrative authority is required to
adjudicate upon the lis, that is, a situation involving two or more parties
putting forth claims inconsistent with each other, and an adjudicatory
authority deciding the matter. Prima facie, in such cases the authority
will be regarded as acting in a quasi-judicial manner. This is on the
analogy of courts whose function is to decide disputes between the
litigants. The situation envisaged here is something like a triangle,
with two contestants claiming against each other and an authority
adjudicating upon the dispute. Ordinarily, such disputes are decided by
the courts, but due to some reasons, some such disputes are taken out of
the judicial purview and handed over to tribunals or other adjudicatory
bodies for decision
Authority v. person:
In a situation where an authority itself sits as a
decision-maker in a dispute between itself and a private person, it may not
always be easy to decide in a particular factual situation whether the authority
concerned ought to give a hearing or not to the person concerned. Much depends
upon the nature of the function in question and its impact on the concerned
person. If in a matter, the authority concerned has to base its decision on the
facts determined by it, and the decision of the authority affects the concerned
person adversely, the judicial attitude generally is to hold the function of the
authority as quasi-judicial and to insist that the authority gives a hearing to
the concerned person before deciding upon the matter.
Disciplinary action against a student:
Since any disciplinary action harms the
career of the student concerned, the courts have invariably taken the view that
before the concerned authority takes disciplinary action against a student, such
as expulsion from the institution or cancellation of his examination results,
the student concerned must be given a hearing by the concerned disciplinary
authority. In Board of High School v. Ghanshyam, the examination result of
the respondent candidate was canceled, and he was debarred from appearing in the
next year's examination, for using unfair means in the examination. The
examination committee of the board which canceled the results afforded no
opportunity to the respondent to rebut the allegations against him. The Supreme
Court held that the function discharged by the committee was quasi-judicial for,
in the very nature of things, the committee had no personal knowledge of the
matter and had to depend upon the material placed before it.
Dismissal from service:
In the matter of dismissal from service of a government
servant, Art. 311 (2) of the Constitution comes into play according to which,
before a civil servant is "dismissed, removed or reduced in rank," there should
be an inquiry in which he has been informed of the charges against him and given
a "reasonable opportunity" of being heard in respect of these charges. The
"reasonable opportunity" envisaged in Art. 311 (2) has to be in accordance with
the principles of natural justice.
Regulation of trade and commerce:
In Kesava Mills Ltd. v. Union of India, the Supreme Court held that the
government needed to observe principles of natural justice before
passing an order of take-over under S. 18-A (b). Under S. 18-AA, the
government can take over an undertaking in certain circumstances (e.g.
fall in production due to reckless action on the part of management,
etc.) without any investigation if immediate preventive action was
A very commonly used administrative technique to regulate any
activity is licensing. Questions as to hearing arise in the area of licensing at
several stages. The normal judicial approach is to treat the cancellation of a
license (trading, business, or any other license) as a quasi-judicial function
because it entails civil as well as pecuniary consequences as a business cannot
be carried on without a license.
Usually, natural justice must be afforded to a person whose
property rights are adversely affected by any action taken by the
Administration, e.g., demolition of a house, etc.
It is of the essence of natural justice that it should be
observed generally in the exercise of discretionary power. The mere fact that
the discretion conferred is wide is no reason for weakening this principle.
Elements of the right to be heard
The hearing starts with the notice by the authority concerned to the
affected person. Consequently, notice may be taken as the starting point of
hearing. Unless a person knows the case against him, he cannot defend himself.
Therefore, before the proceedings start, the authority concerned is required to
give the affected person the notice of the case against him. The proceedings
started without giving notice to the affected party, which would violate the
principles of natural justice. The notice is required to be served on the
concerned person properly. However, the omission to serve notice would not be
fatal if the notice has not been served on the concerned person on account of
his own fault.
An important concept in Administrative law is that of natural justice
or the right to a fair hearing. The right to hearing becomes an important
safeguard against any abuse, or arbitrary or wrong use, of its powers by the
administration in several ways. There is no readymade formula to judge this
question and every case is to be considered on its own merits.
Whether it includes the right to cross-examination or not
depends upon the provisions of the statute under which the hearing is being held
and the facts and circumstances of each case. Where a domestic inquiry is made
by the employees, the right of cross-examination is regarded as an essential
part of natural justice. In the case of disciplinary proceedings initiated by
the Government against the civil servants, the right to cross-examination is not
taken orally and inquiry is only a fact finding one.
Ordinarily, the representation through a lawyer in the
administrative adjudication is not considered an indispensable part of a fair
hearing. However, in certain situations, denial of the right to legal
representation amounts to a violation of natural justice. Thus where the case
involves a question of law or matter which is complicated and technical or where
the person is illiterate or expert evidence is on record or the prosecution is
conducted by legally trained persons, the denial of legal representation will
amount to a violation of natural justice.
In ordinary judicial proceedings, the person who hears
must decide. In the judicial proceedings, thus the decision is the decision of
the specific authority. But in many of the administrative proceedings the
decision is not of one man or one authority i.e. it is not the personal decision
of any designated officer individually. It is treated as the decision of the
concerned department. Such decision is called institutional decisions. In such a
decision often one person hears and another person decides. In such a decision
there may be division in the decision-making process as one person may hear and
another person may decide.
Post Decisional hearing:
A post-decisional hearing may be taken to mean hearing
after the decision sometimes public interest demands immediate action and it is
not found practicable to afford a hearing before the decision or order. In such
a situation the Supreme Court insists on a hearing after the decision or order.
In short, in situations where a prior hearing is dispensed with on the ground of
public interest or expediency, or emergency the Supreme Court insists on the
post decisional hearing.
Reasoned decision (Speaking order):
Reasoned decision may be taken to mean a
decision that contains reason in its support. When the adjudicator's bodies give
reasons in support of their decisions, the decisions are treated as reasoned
decisions. A decision, thus supported by reasons is called reasoned decision. It
is also called speaking order. In such conditions, the order speaks for itself
or it tells its own story. The reasoned decision introduces fairness in the
administrative powers. It excludes or at least minimizes arbitrariness.
Exceptions to the rule of right to be heard as a principle of natural justice
Though the normal rule is that a person who is affected by administrative action
is entitled to claim natural justice, that requirement may be excluded under
certain exceptional circumstances.
The principle of natural justice may be excluded by the statutory provision.
Where the statute expressly provides for the observance of the principles of
natural justice, the provision is treated as mandatory and the authority is
bound by it. Where the statute is silent as to the observance of the principle
of natural justice, such silence is taken to imply the observance thereto.
However, the principles of natural justice are not incapable of exclusion.
In exceptional cases of urgency or emergency where prompt and preventive action
has required the principle of natural justice need not be observed. Thus, the
pre-decisional hearing may be excluded where prompt action is required to be
taken in the interest of public safety or public morality. Thus, in such a
situation dining social necessity requires exclusion of the pre-decisional
hearing. However, the determination of the situation requiring the exclusion of
the rules of natural justice by the administrative authorities is not final and
the court may review such determination.
The requirement of notice and hearing may be excluded where prompt action is to
be taken in the interest of public safety, public health, and public morality.
In case of pulling down a property to extinguish the fire, destruction of
unwholesome food, etc., action has to be taken without giving the opportunity of
Interim disciplinary action:
The rules of natural justice are not attracted in the case of interim
disciplinary action. For example, the order of suspension of an employee pending
an inquiry against him is not final but an interim order, and the application of
the rules of natural justice are not attracted in the case of such order.
Where a student is removed from an educational institution on the grounds of
unsatisfactory academic performance, the requirement of a pre-decisional hearing
is excluded. The Supreme Court has made it clear that if the competent academic
authority assesses the work of a student over a while and thereafter declares
his work unsatisfactory the rule of natural justice may be excluded but this
exclusion does not apply in the case of disciplinary matters.
Where the authority deals with a large number of people, it is not practicable
to give all of them an opportunity of being heard, and therefore in such
conditions the court does not insist on the observance of the rules of natural
The President of India or the Governor of a State, as the case may be, has been
empowered by the Constitution under Article 311 to deny the right of being heard
to a person employed in civil capacity under the Union or a State if satisfied
that it is the right thing to do in the interest of national security.
- Board of High School v. Ghanshyam, AIR 1962 1110
- A.K. Kraipak v. Union of India, AIR 1970 SC 150.
- Maneka Gandhi v. Union of India, AIR 1978 SC 597.
- Supra note 4.
- Kesava Mills Ltd. v. Union of India, AIR 1973 SC 389.
Award Winning Article Is Written By: Ms.Isha Rathi
Authentication No: AR211056723096A-20-0422