DR.

RAM MANOHAR LOHIYA NATIONAL LAW UNIVERSITY, LUCKNOW

SESSION: 2020-2025

ADMINISTRATIVE LAW

FINAL DRAFT

AUDI ALTERAM PARTEM IN INDIAN ADMINISTRATIVE LAW SYSTEM

SUBMITTED TO- SUBMITTED BY-

Dr. RAJNEESH KUMAR YADAV Kritin Bahuguna
ASSISTANT PROFESSOR ENROLMENT NO.-210101075
(LAW) B.A LL.B. (HONS.)
Dr. Ram Manohar Lohiya National Law University 5th SEMESTER, SECTION-A

1
 TABLE OF CONTENTS

ACKNOWLEDGEMENT ................................................................................................... 3

DECLARATION.................................................................................................................. 3

RESEARCH METHODOLOGY ....................................................................................... 4

INTRODUCTION................................................................................................................ 4

1. RIGHT TO NOTICE .................................................................................................................................. 4

2. RIGHT TO KNOW THE EVIDENCE AGAINST HIM ........................................................................ 5

3. RIGHT TO PRESENT CASE AND EVIDENCE .................................................................................... 6

4. THE RIGHT TO REBUT ADVERSE EVIDENCE ................................................................................. 6

5. NO EVIDENCE SHOULD BE TAKEN AT THE BACK OF THE OTHER PARTY ........................... 8

6. INSTITUTIONAL DECISION OR ONE WHO DECIDES MUST HEAR ........................................... 9

7. RULE AGAINST DICTATION ................................................................................................................. 9

8. FINANCIAL CAPACITY TO ATTEND THE ENQUIRY.................................................................... 10

9. DECISION POST-HASTE ....................................................................................................................... 10

2
 ACKNOWLEDGEMENT

I have taken a lot of efforts in compiling this project. However, it would not have been possible
without the kind support and help of many individuals and organisations. I would like to extend
my sincere thanks to all of them.

I express my immense gratitude to Dr. Rajneesh Kumar Yadav for providing me with his
exemplary guidance, support and encouragement throughout the course of this project.

I would like to extend my deepest gratitude to my parents and friends for their continuous
words of encouragement and support which helped me in completing this project.

Finally, This project is a result of my efforts combined with all the means and environment that
has been provided to me by Dr. Ram Manohar Lohiya National Law University, Lucknow and
its authorities and I am thankful to them.

DECLARATION

I hereby declare that the project ‘Audi Alteram Partem In Indian Administrative Law System
‘submitted by me to Dr. Ram Manohar Lohiya National Law University, Lucknow, Uttar
Pradesh in partial fulfilment requirement for the award of the degree of B.A.L.L.B(Hons.) is a
record of bonafide project work carried out by me under the guidance of Dr. Rajneesh Kumar
Yadav.

I further declare that the work reported in this project has not been submitted , and will not be
submitted either in part or in full, for the award of any other degree or diploma in this institute
or any another university.

KRITIN BAHUGUNA
ENROLMENT NO.-210101075

B.A LL.B. (HONS.) 5th

SEMESTER, SECTION-A

3
 RESEARCH METHODOLOGY

The research is strictly doctrinal, the sources being exhaustive and limited to the internet,
books, journals and newspaper articles, although reference to all of the aforementioned sources
may not be necessarily made. For the presentation of information in the correct perspective,
due care has been ensured.

INTRODUCTION

‘Audi Alteram Partem’, the Latin expression well ingrained in the common law legal system
translated in English means 'no one should be condemned unheard. It is one of the three basic
principles of natural justice, it has come a long way since it first found favour before the English
Courts since the inception of the common law system.1

The principle of audi alteram partem is the basic concept of the principle of natural justice. The
omni potency inherent in the doctrine is that no one should be condemned unheard. In the field
of administrative action, this principle has been applied to ensure fair play and justice to
affected persons. Its application depends upon the factual matrix to improve administrative
efficiency, expediency and to mete out justice. The procedure adopted must be just and fair.
The expression audi alteram partem simply implies that a person must be given an opportunity
to defend himself. This principle is a sine qua non of every civilized society. Corollary deduced
from this rule is qui aliquid statuerit, parte inaudita altera aeuquum licet dixerit, haud aequum
facerit i.e. he who shall decide anything without the other side having been heard although he
may have said what is right will not have done what is right. The rule of fair hearing is a code
of procedure, and hence covers every stage through which an administrative adjudication
passes, starting from notice to final determination.

1. Right To Notice
The term ‘notice’ originates from the Latin word ‘notitia’ which means ‘being known’. Notice
is the starting of any hearing. Unless a person knows the formulation of subject and issues
involved in the case, he cannot defend himself. A notice must be adequate and contain:

1
http://legalperspectives.blogspot.in.

4
1) Time, place and nature of hearing,
2) Legal authority under which hearing is to be held,
3) Statement of specific charges (or grounds) and proposed action (or grounds) which the
person has to meet.

The test of adequacy of notice will be whether it gives sufficient information and material so
as to enable the person concerned to put up an effective defence. However, the requirement of
notice will not be insisted upon as a mere technical formality, when the concerned party clearly
knows the case against him, and is not thereby prejudiced in any manner in putting up an
effective defence. Therefore in Keshav Mills Co. V Union of India2, the court did not quash
the order of the government taking over the mill for a period of 5 years on the technical ground
that the appellants were not issued notice before this action was taken, because, at an earlier
stage, a full-scale hearing had already been given and there was nothing more which the
appellant wanted to know. Similarly, in Maharashtra State Financial Corpn. V Suvarna
Board Mill3, the court held that a notice calling upon the party to repay dues within 15 days
failing which factory would be taken over is sufficient for taking over the factory and no fresh
notice is required for pulling down an unauthorised structure when notice for removing such
structure has already been given.

Where a statute expressly provides that a notice must be given, failure to give notice makes the
act void. Article 22 of Constitution requires that detenu must be furnished with the grounds of
detention and if the grounds are vague, the detention order may be quashed by the court. The
grounds given in notice on which the action is proposed to be taken must be clear, specific and
unambiguous. A notice is vague if it merely mentions the charges without mentioning the
action proposed to be taken.

2. Right To Know The Evidence Against Him

Every person before an administrative authority exercising adjudicatory powers has the right
to know the evidence to be used against him. This principle was firmly established
in Dhakeshwari Cotton Mills Ltd V. CIT4 In this case the appellate income tax tribunal did

2
AIR 1973 SC 389.
3
AIR 1994 SC 2657.
4
AIR 1955 SC 65.

5
not disclose the information supplied to it by the department. The SC held that the assessee
was not given fair hearing. However, the supply of adverse material, unless the law otherwise
provides, in original form is not necessary. It is sufficient if the summary of the contents of the
material is supplied provides it is not misleading. A person may be allowed to inspect a file
and take notes. Whatever mode is used, the fundamental remains the same that nothing should
be used against the person which has not been brought to his notice.

3. Right To Present Case And Evidence

This can be done through writing or orally. The courts are unanimous on the point that
oral/personal hearing is not an integral part of fair hearing unless circumstances so exceptional
that without oral hearing a person cannot put up an effective defence. Therefore, where
complex legal and technical questions are involved or where the stakes are very high, oral
hearing shall become a part of fair hearing. Thus, in the absence of a statutory requirement for
oral hearing courts will decide the matter taking into consideration the facts and circumstances
of every case. In Union of India V. J. P. Mitter5 the court refused to quash the order of the
President of India in a dispute relating to the age of high Court judge on the ground that the
President did not grant oral hearing even on request. The court was of the view that when the
person has been given an opportunity to submit his case in writing, there is no violation of the
principles of natural justice if oral hearing is not granted.

The administrative authority must further provide full opportunity to present evidence –
testimonial or documentary. In Dwarkeshwari Cotton Mills Ltd. V. CIT6, the SC quashed
the decision of the administrative authority on the ground that not allowing the assessee to
produce material evidence violates the rule of fair hearing.

4. The Right To Rebut Adverse Evidence

This right presupposes that the person has been informed about the evidence against him. The
opportunity to rebut evidence necessarily involves consideration of two factors-
Cross-examination- It is the most powerful weapon to elicit and establish truth. However, the
courts do not insist on cross-examination in administrative adjudication unless the
circumstances are such that in the absence of it the person cannot put an effective defence. The

5
AIR 1971 SC 1093.
6
AIR 1955 SC 65.

6
SC in Town Area Committee V. Jagdish Prasad7, the department submitted the charge-
sheet, got an explanation and thereafter straightaway passed the dismissal order. The court
quashed the order holding that the rule of fair hearing includes an opportunity to cross-examine
the witnesses and to lead evidences. However, in externment proceedings and proceedings
before customs authorities to determine whether goods are smuggled or not the right of cross-
examination was held not to be a part of natural justice.

On the grounds of practicability also opportunity of cross-examination may be disallowed.

In Hira Nath Mishra V. Principal, Rajendra Medical College8, the SC rejected the
contention of the appellants that they were not allowed to cross-examine the girl students on
the ground that if it was allowed no girl would come forward to give evidence, and further that
it would not be possible for the college authorities to protect girl students outside the college
premises.

Legal Representation- Normally representation through a lawyer in any administrative

proceeding is not considered an indispensable part of the rule of natural justice as oral hearing
is not included in the minima of fair hearing. This denial of legal representation is justified on
the ground that lawyers tend to complicate matters, prolong the proceedings and destroy the
essential informality of the proceedings. It is further justified on the ground that representation
through a lawyer of choice would give an edge to the rich over the poor who cannot afford a
good lawyer.

It is relevant to note at this stage that the SC in M.H. Hoskot V. State of Maharashtra9, while
importing the concept of ‘fair procedure’ in Article 21 of the Constitution held that the right to
personal liberty implies provision by the State of free legal service to a prisoner who is indigent
or otherwise disabled from securing legal assistance where the ends of justice call for such
service.

In Khatri V. State of Bihar10, the SC further ruled that the State is constitutionally bound to
provide legal aid to the poor or indigent accused not only at the stage of trial but at the time of

7
AIR 1978 SC 60.
8
AIR 1973 SC 1260.
9
AIR 1978 SC 1548.
10
(1981) 1 SCC 627.

7
remand also. Such right cannot be denied on the ground of financial constraints or
administrative inability or that the accused did not ask for it. The SC emphasised that it is the
duty of the presiding officer to inform the accused of such right.

In the same manner in Nalini Satpathy V. P.L.Dani11, the court held that the accused must be
allowed legal representation during custodial interrogation and the police must wait for a
reasonable time for the arrival of a lawyer. However, the Court which took the right step, did
not take a long stride in holding that the State must provide a lawyer if the accused is indigent.
The observation of the Court could well be inducted in the administration. In the area of
criminal justice the CPC now provides for legal aid to the accused.

5. No Evidence Should be Taken at The Back of the Other Party

The ex parte evidence taken in the absence of the other party violates the principle of fair
hearing was discussed by the court in Errington V. Minister of Health12. The facts were
that in 1933 Jarrow Corporation passed a clearance order for the demolition of certain
buildings found unfit for human habitation and submitted the same for the confirmation of the
minister of health. An enquiry was held and the owners of the building were given a hearing.
Thereafter some officials of the ministry again visited the place and collected evidence but
the owners were not informed about the visit. The clearance order was confirmed by the
minister after taking into account the facts thus collected. On challenge, the clearance order
was quashed by the court and one of the grounds for so deciding was that the ex parte
statements taken in the absence of the other party, without affording an opportunity to rebut,
is against the recognised principle of natural justice.

The decision does not imply that administrative agencies cannot obtain information in the
manner they consider best. The main thrust of Errington case is that whatever information is
obtained by the administrative authority must be disclosed to the other party and the
opportunity to rebut it must be provided.

The SC reiterated this position in Hira Nath Mishra V. Principle, Rajendra Medical
College13. In this case 36 girls of a medical college filed a report with the Principle regarding

11
AIR 1978 SC 1025.
12
(1935) 1 KB 249.
13
AIR 1973 SC 1260.

8
misbehaviour of the boys in the girl’s hostel. The enquiry committee appointed by the Principle
recorded the statements of the girls, but in the absence of the appellants. The appellants were
also identified by the girls through the photographs. The committee found the appellants guilty
and consequently an expulsion order was served on them. The order of expulsion was
challenged before the SC and one of the grounds of challenge was that the evidence was taken
behind their backs. The court rejected the contention holding that the girls would not have
ventured to make the statements in the presence of the appellants except at a great risk of
retaliation and harassment. In this case, whatever evidence was collected behind their backs of
the appellants was brought to their notice and they were provided with an opportunity to rebut
the evidence.

6. Institutional Decision or One Who Decides Must Hear

The expression ‘one who decides must hear’ which is popular in common law jurisdiction is
known by the term ‘institutional or anonymous decisions’ in American law. Unlike law courts,
the decision in many administrative proceedings is not the decision of one man from start to
finish. Often one person hears and another decides. The divided responsibility may work
contrary to the concept of fair hearing.

In Gullupalli Nageshwara Rao V. APSRTC14 is a case where an administrative action was

challenged on the ground that the one who decides did not hear. In this case, the petitioners
challenged the order of the government confirming the scheme of road nationalisation. The
Secretary of the Transport Department gave the hearing but the final decision came from the
Chief Minister. The SC held that this divided responsibility was against the concept of fair
hearing because if one who decides does not hear the party, he gets no opportunity of clearing
doubts in his mind by reasoned arguments.

7. Rule Against Dictation

Any administrative authority invested with the power of decision making must exercise this
power to exercise of its own judgment. The decision must be actually his, who decides.
Therefore, if a decision is taken at the direction of any outside agency, there is a violation of
fair hearing. In Mahadayal V. CTO15, the SC quashed the decision of the CTO imposing tax

14
AIR 1959 SC 308.
15
AIR 1958 SC 667.

9
on the petitioner on directions from his superior officer even when he himself was of the
opinion that the petitioner was liable to tax.

8. Financial Capacity To Attend The Enquiry

In Mumtaz Hussain Ansari V. State of U.P.16, the appellant, a District Superintendent of
Police at Pilibhit, had been charged on various counts including wilful absence from duty.
Before the Tribunal he wanted eight witnesses be examined in his defence. The Tribunal asked
him to deposit Rs. 900 for the allowance to be paid to the witnesses. The appellant could not
deposit the amount and hence witnesses could not be examined. The SC ruled that if the
appellant was under suspension for a long time and hence could not deposit the amount due to
financial incapacity, the failure not to summon defence witnesses at the government’s expense
was a violation of the principles of natural justice unless it was decided by the authority that
the evidence of such witnesses was not material.

9. Decision Post-Haste
Fundamentals of ‘fair hearing’ require that the administrative authority must not haste in
making decisions. In S.P. Kapoor V. State of H.P.17, the SC quashed the action of the
government taken in haste. In this case the Departmental Promotional Committee was
constituted the very next day of the finalisation of the seniority list of the candidates who were
continuing on ad hoc promotion for about six years. At the time of the constitution of the
committee, one of the members was on the leave for a short time and therefore, the person
officiating was included in his place as a committee member. Selections were made and the
orders of appointment were also issued on the very date of the constitution of the committee.
The SC held that the way whole thing was completed in haste gives rise to the suspicion that
some high-up was interested in pushing through the matter hastily and hence the matter requires
to be considered afresh.

10. Reasoned Decision

In India, in the absence of any particular statutory requirement, there is no general requirement
for administrative agencies to give reasons for their decisions. However, if the statute under
which the agency is functioning requires reasoned decisions, courts consider it mandatory for

16
AIR 1984 SC 1116
17
AIR 1981 SC 2181

10
the administrative agency to give reasons which should not be merely ‘rubber-stamp’ reasons
but a brief, clear statement providing the link between the material on which certain
conclusions are based and the actual conclusions. In M. J. Sivani V. State of Karnataka18 the
Court reiterated that when the rules direct recording of reasons it is a sine qua non and a
condition precedent for a valid order. Appropriate brief reasons, though not like a judgment,
are necessary for a valid order. Normally they must be communicated to the affected party so
that he may have an opportunity to have them tested in the appropriate forum. An
administrative order itself may contain reasons or the file may disclose reasons to arrive at the
decision showing application of mind to the facts in issue.

CONCLUSION

Audi alteram partam is a wide concept than what it seems to be. It is one of the cardinal
principles of the rules of natural justice rather it would be unjustified to think about natural
justice without taking into account the concept of audi alteram partam. It mean right to fair
hearing. This phrase though sounds simple but it embraces in itself the whole story of justice
right from sending notice to post decisional hearing.

Though, there are certain exceptions where this principle is not followed. But then these
exceptions also have to be justified. There has to be a rational behind skipping this very concept
which forms the very basis of the justice.

Then the questions arises where to skip and where not to? There is no straight jacket formula
to calculate this. It rather depends on the different facts and circumstances of the case. The
presiding judge should balance the gravity of the facts and circumstances of both the parties.

BIBLIOGRAPHY
1. I.P.Massey, Administrative Law.
2. http://legalperspectives.blogspot.in/2010/07/audi-alteram-partem-natural-justice.html.
3. http://www.legalservicesindia.com/article/article/audi-alterem-partem.

18
(1995) 3 SCC 329.

11