• LAWGIC STRATUM

Audi Alteram Partem

Author: Dikshansh





As we grow, we correct our mistakes and develop ourselves, to become a better version of ourselves. The same is the rule of natural justice, which has evolved with the evolution of civilization.


Article-14 and 21 of the Indian Constitution are the main role-players of natural justice. When there is no partiality, then there is natural justice. Hence, fairness, reasonableness, and equality are the principles of natural justice. One of the pillars of natural justice is Audi alteram partem[1]. This expression states that "no one shall be condemned unheard" or "both the stands must be heard before passing any order". In general, this principle has two ingredients Notice and Hearing.


Notice:


When the pretentious party is under the movement of authority, then it is their right to have warning notice before any action, is taken against them. Any mandate passed without giving "notice" is against the principles of natural justice. The "Right to notice" means the "Right of being known".


In the Bagg case[2], a Chief Burgess of Plymouth, James Bagg, was set aside for abusive conduct as it was alleged, that he told the mayor, you are a cohabiting slave. He condemned Mayor Thomas Fownes as a "rude person" and, in a separate incident, turned his back towards Fownes and publicly said Come and kiss. He returned by mandamus as no "notice or hearing" was given to him before passing the impugned order.


In the case of Punjab National Bank vs All India Bank Employees Federation[3], a notice contained certain charges. But, a "penalty" was imposed on the "charges" other than those mentioned in the "notice". Thus, the charges on which the "penalty" was imposed were not those contained in the "notice" served on the person concerned. The notice was not proper and, therefore, the imposition of "penalty" was invalid.


Hearing:


The second rule of Audi alteram partem is the rule of hearing. If the order is passed by the authority, without adversely providing a reasonable opportunity of hearing to the person affected by it will be invalid.


Case of Harbans Lal v Commissioner[4], National Co-operative Bank v. Ajay Kumar[5] and Fateh Singh v State of Rajasthan[6]


In this cases, it was held that if a person is being heard or gets a fair opportunity for a fair hearing, it is an essential component of the doctrine of Audi alteram partem. The condition lies with the authority providing the written or oral hearing, which is the discretion of the authority unless action is taken by the authority not providing otherwise. The authority should ascertain whether the affected parties should have an opportunity for an oral or personal hearing.


Evidence:


It is considered the most important part brought before the court when both parties are present, and the judicial or quasi-judicial authority will take action on the evidence to be presented before the court.


Case: Stafford v Minister of Health

In this case, it was held that no evidence should be obtained in the absence of the other party and if any such evidence is recorded then it is the duty of the authority to make it available to the other party.


Case – Hiranath v Principal[7]

In this case, it was held that this doctrine is not limited to the main formal evidence, but any information about the previous conviction on which the courts can rely without denying it to give the affected party a chance.


Cross-examination: The court should not be required to reveal the material taken against or against the person concerned, but rather they are provided, with an opportunity to deny the evidence. The question arises whether the witness will be examined.


Case: Kanungo& Co. v Collector of Customs[8]

In this case, the business property of a person was investigated, and some watches were seized, by the police who were in power under the Maritime Customs Act. The person giving the information was not allowed to cross-examine. The principle of natural justice was not violated. The court held that the principle of natural justice did not allow the person concerned to cross-examine the witness in the case where the goods are seized under the Sea Customs Act[9].


Legal Representation:


Representation through a legal advisor in official arbitration is not considered as a mandatory piece of a fair hearing. It may be, as it may be, in specific circumstances if the privilege for legal representation is not denied, and at that point, it calls for a violation of natural justice.


Case of J.J Mody v State of Bombay[10] and Krishna Chandra v Union of India[11]

In this case, it was held that the refusal of legal representation amounts to the violation of natural justice because the party didn't understand the rules of law. The court held that they should get a chance of being heard again.


Exceptions


The Audi alteram partem rule is not applied by the method to a particular case to "play fair in real life", but nothing can be done unfairly by not giving a chance to present a case.


Conclusion


The rule of natural justice has been advanced by human progress. It has evolved not from the Indian constitution but from the human race itself. Everyone has the privilege to talk and listen when the charge is being put, towards the person in question. The Latin saying, "Audi alteram partem" is the standard of specialty equity where every person gets an opportunity to be heard. The importance of a proverb only says that no person will be condemned unheard. In this way, a case will not be adjudicated in the absence of any other party. There are many situations where this rule of natural justice is absent, and the party is not given any opportunity to be heard. Natural justice implies that both parties should be equal in a simple, reasonable, and sensible manner. Under the eye of the court, both sides are equal, and they have an equal chance to speak and prove themselves.


References :


Constitution of India Pg. No. 25,28 - http://legislative.gov.in/constitution-of-india

https://archive.org/stream/lecturesonadmini032796mbp/lecturesonadmini032796mbp_djvu.txt

Name of Cases related to Audi alteram partem: https://thefactfactor.com/facts/law/civil_law/administrative-law/ingredients-of-fair-hearing-notice/4462/ , https://blog.ipleaders.in/audi-alteram-partem/

[1] Audi Alteram Partem Definition: http://www.duhaime.org/LegalDictionary/A/Audialterampartem.aspx [2] James Bagg Case - BAGG, James I (1554/5-1624), of Plymouth, Devon | History of Parliament Online [3]A.I.R. 1960 S.C. 160 - Punjab National Bank vs All India Bank Employees Federation, [4] 2002 (80) ECC 97, 2001 (138) ELT 1078 Tri Kolkata - Harbans Lal vs Commissioner [5] AIR 1994 SC 39, 1994 Supp (3) SCC 406 -, National Co-operative Bank v. Ajay Kumar [6] AIR 1995 Raj 15 - Fateh Singh v State of Rajasthan [7] AIR 1973 SC 1260, (1973) IILLJ 111 SC, (1973) 1 SCC 805 - Hiranath vs Principal [8] AIR 1972 SC 2136, 2003 (89) ECC 764, 1983 (13) ELT 1486 SC, (1973) 2 SCC 438, 1972 (4) UJ 712 SC - Kanungo & Co. v Collector of customs [9] https://www.wipo.int/edocs/lexdocs/laws/en/in/in125en.pdf [10] AIR 1962 Guj 197, (1962) IILLJ 507 Guj - J.J Mody v State of Bombay [11] AIR 1974 SC 1589, 1974 LablC 1010, (1974) 4 SCC 374 - Krishna Chandra v Union of India

113 views0 comments