Natural Justice: An Effective Mechanism To Diminish Arbitrary Exercise of Discretionary Power
Natural justice terminology for the rule against bias and the right to a fair hearing. While the term natural justice is often retained as a general concept, it has largely been replaced and extended by the more general ‘’duty to act fairly’’
In Bangladesh there is no statute laying down the minimum procedure which administrative authorities must follow while exercising decision making power1.There is a bewildering variety of administrative procedure. Sometimes the statute under which the administrative authority exercises power lays down the procedure which the administrative authority must follow but at times the administrative authority is left free to devise its own procedure. The courts have always insisted that the administrative agencies must follow a minimum of fair procedure. This minimum fair procedure refers to the concept of natural justice. The concept of Natural Justice is an important concept in administrative law.
In fact, natural justice is a concept of common law and it is the common law world counterpart of the American ‘procedure due process’. Natural justice represents higher procedural rules developed by judges which every administrative authority must follow in taking any decision a diversely affecting the rights of a private individual. Natural justice is important in the field of administration. When an administration acts, it must follow natural justice. If any administration does not follow it, there may be arbitrariness. So every administration should follow natural justice.
Natural justice plays a vital role to diminish the arbitrariness. It controls the administration from taking any bias decision in any mater.
The courtroom of the Supreme Court of Canada in Ottawa, Ontario. In 1999, the Court ruled in Baker v. Canada (Minister of Citizenship and Immigration) that the requirements of natural justice vary according to the context of the matter arising.
Natural justice is a term of art that denotes specific procedural rights in the English legal system and [the systems of other nations based on it. It is similar to the American concepts of fair procedure and procedural due process, the latter having roots that to some degree parallel the origins of natural justice.
Although natural justice has an impressive ancestry and is said to express the close relationship between the common law and moral principles the use of the term today is not to be confused with the “natural law” of the Canonists, the mediaeval philosophers’ visions of an “ideal pattern of society” or the “natural rights” philosophy of the 18th century. Whilst the term natural justice is often retained as a general concept, in jurisdictions such as Australia and the United Kingdom it has largely been replaced and extended by the more general “duty to act fairly”. Natural justice is identified with the two constituents of a fair hearing, which are the rule against bias (nemo iudex in causa sua, or “no man a judge in his own cause”), and the right to a fair hearing (audi alteram partem, or “hear the other side”).
The requirements of natural justice or a duty to act fairly depend on the context. In Baker v. Canada (Minister of Citizenship and Immigration) (1999), the Supreme Court of Canada set out a list of non-exhaustive factors that would influence the content of the duty of fairness, including the nature of the decision being made and the process followed in making it, the statutory scheme under which the decision-maker operates, the importance of the decision to the person challenging it, the person’s legitimate expectations, and the choice of procedure made by the decision-maker. Earlier, in Knight v. Indian Head School Division No. 19 (1990),Supreme Court held that public authorities which make decisions of a legislative and general nature do not have a duty to act fairly, while those that carry out acts of a more administrative and specific nature do. Furthermore, preliminary decisions will generally not trigger the duty to act fairly, but decisions of a more final nature may have such an effect. In addition, whether a duty to act fairly applies depends on the relationship between the public authority and the individual. No duty exists where the relationship is one of master and servant, or where the individual holds office at the pleasure of the authority. On the other hand, a duty tactfairly exists where the individual cannot be removed from office except for cause. Finally, a right to procedural fairness only exists when an authority’s decision is significant and has an important impact on the individual.
Meaning of Natural Justice.
People have drawn their criteria of justice from many cources, i e from the nature of things, from the nature of man and from the nature of God. Natural law is the outcome of man’s quest from an absolute standerd of justice.
Natural Justice has meant many things to many writers, lawyers and systems of law. Professors H. W. R. Wade defines natural justice as ‘’the name given to certain fundamental rules which are so necessary to the proper exercise of power that they are projected from the judicial to the administrative sphere’’.. It is used interchangeably with Divine Law, jus gentium and the common law of the nations. It is a concept of changing content. However, this does not mean that at a given time no fixed rules of natural justice can be identified. The rules of natural justice through various decisions of courts can be easily ascertained, though their application in a given situation may depend on multifarious factors. In Bangladesh, though natural justice enjoys no express constitutional status but the Appellate Division of the supreme court of court of Bangladesh in Abdul Latif Mirza Vs. Government of Bangladesh observed2
It is now well-recognised that the principle of natural justice is a part of the law of the country”
Hence, natural justice is a concept of procedural law developed by courts which administrative authorities in absence of any legally prescribed procedure, must follow at the time of outcome of man’s quest from an absolute standerd of justice.
According to Roman law certatin basic legal principles were required by nature, or so obvious that they should be applied university without needing to be enacted into law by a legisletor. This was a seedbed for the growth of natural justice. The principle of natural justice are now regularly applied by the courts in both common law and Roman law jurisdictions.
The Principle and essential elements of Natural Justice:
In a famous English decision in Abbott vs. Sullivan reported in (1952) 1 K.B.189
at 195 it is stated that “the Principles of Natural Justice are easy to proclaim, but their
precise extent is far less easy to define”. It has been stated that there is no single definition of Natural Justice and it is only possible to enumerate with some certainty the
main principles. During the earlier days the expression natural Justice was often used
interchangeably with the expression natural Law, but in the recent times a restricted meaning has been given to describe certain rules of Judicial Procedure.
There are several decision of the Hon’ble Supreme Court which I shall refer at the appropriate place and these Judgments are sufficient to summarize and explain the two
essential elements of Natural Justice namely
a. No man shall be Judge in his own cause
b. Both sides shall be heard, or audi alteram partem
The other principles which have been stated to constitute elements of Natural Justice are
i. The parties to a proceedings must have due notice of when the Court / Tribunal will
ii. The Court / Tribunal must act honestly and impartially and not under the dictation of
other persons to whom authority is not given by Law
These two elements are extensions or refinements of the two main principles stated above
Forms of bias:
Bias may be actual, imputed or apparent. Actual bias is established where it is actually established that a decision-maker prejudiced in favour of or against a party. However, in practice, the making of such an allegation is rare as it is very hard to prove.
One form of imputed bias is based on the decision-maker being a party to a suit, or having a pecuniary or proprietary interest in the outcome of the decision. Once this fact has been established, the bias is irrebuttable and disqualification is automatic – the decision-maker will be barred from adjudicating the matter without the need for any investigation into the likelihood or suspicion of bias. A classic case is Dimes v. Grand Junction Canal Proprietors (1852)3 which involved an action between Dimes, a local landowner, and the proprietors of the Grand Junction Canal, in which the Lord Chancellor, Lord Cottenham, had affirmed decrees made to the proprietors. However, it was discovered by Dimes that Lord Cottenham in fact owned several pounds worth of shares in the Grand Junction Canal. This eventually led to the judge being disqualified from deciding the case. There was no inquiry as to whether a reasonable person would consider Lord Cottenham to be biased, or as to the circumstances which led Lord Cottenham to hear the case.
Apparent bias is present where a judge or other decision-maker is not a party to a matter and does not have an interest in its outcome, but through his or her conduct or behaviour gives rise to a suspicion that he or she is not impartial. An issue that has arisen is the degree of suspicion which would provide the grounds on which a decision should be set aside for apparent bias. Currently, cases from various jurisdictions apply two different tests: “real likelihood of bias” and “reasonable suspicion of bias”.
The real likelihood test centres on whether the facts, as assessed by the court, give rise to a real likelihood of bias. In R. v. Gough (1993), the House of Lords chose to state the test in terms of a “real danger of bias”, and emphasized that the test was concerned with the possibility, not probability, of bias. Lord Goff of Chievely also stated that “the court should look at the matter through the eyes of a reasonable man, because court in cases such as these personifies the reasonable man”. However, the test in Gough has been disapproved of in some Commonwealth jurisdictions. One criticism is that the emphasis on the court’s view of the facts gives insufficient emphasis to the perception of the public. These criticisms were addressed by the House of Lords in Porter v. Magill (2001). The Court adjusted the
Gough test by stating it to be “whether the fair-minded and informed observer, having considered the facts, would conclude that there was a real possibility that the tribunal was biased”. This case therefore established the current test in the UK to be one of a “real possibility of bias”.
On the other hand, the reasonable suspicion test asks whether a reasonable and fair-minded person sitting in court and knowing all the relevant facts would have a reasonable suspicion that a fair trial for the litigant is not possible. Although not currently adopted in the UK, this test has been endorsed by the Singapore courts.
It has been suggested that the differences between the two tests are largely semantic and that the two tests operate similarly. In Locabail, the judges stated that in a large proportion of the cases, application of the two tests would lead to the same outcome. It was also held that “[p]rovided that the court, personifying the reasonable man, takes an approach which is based on broad common sense, and without inappropriate reliance on special knowledge, the minutiae of court procedure or other matters outside the ken of the ordinary, reasonably well-informed members of the public, there should be no risk that the courts will not ensure both that justice is done and that it is perceived by the public to be done”. In the Singapore High Court decision Tang Kin Hwa v. Traditional Chinese Medicine Practitioners Board (2005), Judicial Commissioner Andrew Phang observed that the real likelihood test is in reality similar to that of reasonable suspicion. First, likelihood is in fact “possibility”, as opposed to the higher standard of proof centring on “probability”. Secondly, he suggested that real in real likelihood cannot be taken to mean “actual”, as this test relates to apparent and not actual bias. He also observed that both the court’s and the public’s perspectives are “integral parts of a holistic process” with no need to draw a sharp distinction between them.
Rule against Bias:
‘Bias’ means an operative prejudice whether conscious or unconscious in relation to a party or issue. Therefore, the rule against bias strikes those factors which may improperly influence a judge in arriving at a decision in any particular case. The requirement of this rule is that the judge must be impartial and must decide the case objectively on the basis of the evidence or record. A person cannot take an objective decision in a case in which he has an interest for, as human psychology tells us, very rarely can people take decisions against their own interests. Therefore, the maxim is that a person cannot be made a judge in his own cause. The rule of disqualification is applied not only to avoid the possibility of a partial decision but also to ensure public confidence in the impartiality of the administrative adjudicating process because not only must “no man be judge in his own cause” but also “justice should not only be done but should manifestly and undoubtedly be seen to be done”4
In practice, bias may be manifested variously such as personal bias, preconceived notion bias, subject-matter bias, departmental bias, pecuniary bias, etc. and may affect the decision in a variety of ways.
Exceptions to the rule against bias:
There are cases in which a disqualified adjudicator cannot be replaced, as no one else is authorized to act. It has been observed that “disqualification of an adjudicator will not be permitted to destroy the only tribunal with power to act” In such cases, natural justice has to give way to necessity in order to maintain the integrity of judicial and administrative systems.
This issue regarding necessity was raised in Dimes.The Lord Chancellor had to sign an order for enrolment in order to allow the appeal to proceed from the Vice-Chancellor to the House of Lords. It was held that his shareholding in the canal company which barred him from sitting in the appeal did not affect his power to enroll, as no one but him had the authority to do so. It was mentioned this was allowed “for this [was] a case of necessity, and where that occurs the objection of interest cannot prevail”.
Rule of Fair Hearing:
This is the second long arm of natural justice which protects the ‘little man’ from arbitary administrative actions whenever his right to person or property is jeopardised. the expression “ audi alteram partem” simply implies that a person must be given an opportunity to defend himself.
Right to fair hearing is a code of procedure and covers the following stages through which an administrative adjudication is properly performed:
(i) Right to notice;
(ii) Right to present case and evidence;
(iii) Right to rebut adverse evidence;
(iv) No evidence should be taken at the back of other party;
(v) Reasoned decision;
(vi) Institutional decision or one who decides must hear; and
(vii) Rule against dictation i.e., the decision must be actually his who decides.
Article 6 of the European Convention:
The right to a fair hearing is also referred to in Article 6(1) of the European Convention on Human Rights and Fundamental Freedoms, which states: In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law.
Article 6 does not, however, replace the common law duty to ensure a fair hearing. It has been suggested that Article 6 alone is not enough to protect procedural due process, and only with the development of a more sophisticated common law will the protection of procedural due process extend further into the administrative machine Nonetheless, Article supplements the common law. For example, the common law does not impose a general duty to give reasons for a decision, but under Article 6(1) a decision-maker must give a reasoned judgment so as to enable an affected individual to decide whether to appeal
Aspects of a fair hearing:
Prior notice of hearing:
Natural justice allows a person to claim the right to adequate notification of the date, time, place of the hearing as well as detailed notification of the case to be met. This information allows the person adequate time to effectively prepare his or her own case and to answer the case against him or her. In Cooper v. Wandsworth,[ Chief Justice William Erle went so far as to state that the lack of notice and hearing afforded to Cooper could be said to be a form of abuse, as he had been treated as if he did not matter. As Lord Mustill famously held in R. v. Secretary of State for the Home Department, ex parte Doody (1993): “Since the person affected usually cannot make worthwhile representations without knowing what factors may weigh against his interests fairness will very often require that he is informed of the gist of the case which he has to answer.”
It has been suggested that the requirement of prior notice serves three important purposes:
The interest in good outcomes – giving prior notice increases the value of the proceedings as it is only when the interested person knows the issues and the relevant information that he or she can make a useful contribution.
The duty of respect – the affected person has the right to know what is at stake, and it is not enough to simply inform him or her that there will be a hearing.
The rule of law – notice of issues and disclosure of information opens up the operations of the public authority to public scrutiny.
The British courts have held it is not enough for an affected person to merely be informed of a hearing. He or she must also be told what is at stake; in other words, the gist of the case.
Opportunity to be heard:
Every person has the right to have a hearing and be allowed to present his or her own case. Should a person not attend the hearing, even with adequate notice given, the adjudicator has the discretion to decide if the hearing should proceed. In Ridge v. Baldwin, a chief constable succeeded in having his dismissal from service declared void as he had not been given the opportunity to make a defence. In another case, Chief Constable of the North Wales Police v. Evans (1982), a chief constable required a police probationer to resign on account of allegations about his private life which he was given no fair opportunity to rebut. The House of Lords found the dismissal to be unlawful. Likewise in Surinder Singh Kanda v. Government of the Federation of Malaya (1962) a public servant facing disciplinary proceedings was not supplied with a copy of prejudicial report by a board of inquiry which the adjudicating officer had access to before the hearing. The Privy Council held that the proceedings had failed to provide him a reasonable opportunity of being heard.
According to W.H.W. Wade, any decision rendered in violation of the rules of Natural Justice is void. But according to D.M. gordon, procedural breaches can never render a decision void as jurisdictional error. In judicial sphere, the Courts are also divided on this question of legal effect. The supreme court of India in Maneka gandhi Vs. Union of India4 held that an order, which infringes fundamental freedom, taken in violation of the rule of fair hearing is nullity, which may, however, be validated through a post-decisional hearing. In Dhakeswari cotton Mills Ltd. vs. C.I.T5 the Supreme Court of India quashed the decision of the administrative authority on the ground that not allowing the assessee to produce material evidence violaes the rule of fair hearing. In Nawab Khan Vs. State of Gujarat8 the supreme Court of India ruled that ‘perhaps not all violations of the rules of Natural justice knock down the order with nullity.’
In Abdul Latif Mirza Vs. Government of Bangladesh 6the Appellate Division of the Bangladesh Supreme Court observed the “ the principle of Natural Justice is a part of the law of the country.” However, to understand the scope and importance of the foregoing rules of natural justice in Bangladsh, the following relevant cases decided by the Appellate Division of the Bangladesh Supreme Court may be examined and evaluated:
The Banglad esh Bank (Nationalisation) Order, 1972 (P.O.26 of 1972)
Articale 23: Service in Nationalised Bank- Establishment of byelaws containing service rules framed by Bank prior to promulgation of the Presidential Order of nationalisation have no statutory force Employees of Bank cannot be deprived of rules of natural justice.
The Constitution of Bangladesh, 1972
Article 102: Judgement was passed in a writ petition in the absence of the respondent- On review application for hearing the writ petition in the absence of the appellant, the judgment passed earlier was set aside- The High Court in writ jurisdiction whether can restore a writ petition to the file on setting aside the judgement already pronounced and signed.
While setting aside the judgment of July 12, 1979, the High Court passed the order without hearing both sides and without giving an opportunity to the appellant to make out his case against the prayer for rehearing of the writ petition setting aside the judgment. In setting aside the order, hearing was given to the advocate for one of the respondents. No opportunity of hearing was given to the apellant. The minimum requirement was to see whether the respondents to the writ petition did receive the notices in time and if so, had they sufficient cause in failling to appear at the time of hearing and present their case and had they succeeded in making out a case for review, so that the ends of justice demanded re-hearing of the writ petition and in so doing the earlier judgment and order could be reviewed if at all. The order containing reason for allowing the review, therefore cannot be sustained.
The Code of Civil Procedure, 1908
Contents of the Code-The Civil Procedure Code deals with procedural matters and not substantive rights. The procedural laws are grounded on rules of natural justice8.
If summons are not duly served on the defendant, that is a good ground for setting aside an exparte decree under Order 9, Rule 13 of the C.P.C. In such a case, question of knowledge is not at all relevant and exparte decree will be set aside even if the defendant had knowledge of institution of suit.
On the other hand, if we analyse the public servants (inquiries) Act, 1950, and the Government Servants (Discipline and Appeal) rules of 1985, we find the following important contents:
(1) Notice to accused
(2) Copy of charge and list to be furnished to accused
(3) Evidence of prosecution and examination of witnesses
(4) Evidence for defense and examination of witnesses
(5) Report of the officer with reasons
Moreover, the constitution of Bangladesh provides that no person who holds any civil post in the service of the republic shall be dismissed or removed or reduced in rank until he has been given a reasonable opportunity of showing cause why action should not be taken.
From the foregoing discussion, it is clearly convincing that violation of any of the rules of natural justice is not sustainable in the fields of Administrative Law in Bangladesh. And with the changes and growth of Administrative Law in the country, the rules of natural justice have thus gained considerable advances to ensure free and fair administrative justice in this administrative era of 21st century.
Natural Justice helps to diminish Arbitrariness in any adjudication. No one can take any decision whatever he likes. It is a good mechanism to remove arbitrariness from a country.
In the regulation of trade and commerce: Generally, where a person’s right to carry on trade and commerce resticed it is necessary that the administration show give a fair hearing and apply natural justice to the affected persons case.
Licensing is a common administrative technique used to regulate any activity. Cancellation of a license is a quasi- Judicial activity because it involves civil as well as pecuniary consequences as the license con not carry or business without a license.
In the taking over of management of an undertaking: If the government, after an investigation finds out that the management of a public undertaking is being managed by inefficient persons and in such manner which is detrimental to public interest the government may take over the management in its hands.
Powers of search and Seizure:
The power of search and seizure are extraordinary powers in the hands of the state for the protection of security which is of an extreme nature and constitutes a serious invasion of the privacy, reputation business and freedom of the affected person.
Discretionary Powers are subject to control and fair hearing before the decision making bodies and they may act as control magnesium on the decision making powers. Discretionary action may cmprise of dominant elements such as a major administrative policy, economic or any threat to the community which may negate the idea of fair hearing.
Supercession of statutory bodies and Municipal Corporation: The principle of natural justice must be observed when the government suspends bodies, such as panchayats.
When the government is under contract with a private party and where the action was statutory basic the principles of natural Justice is applicable
Under a modern administrative technology, a person is blacklisted for the purpose of disqualifying him for certain purposes and after which he is not eligible to deal with the concerned authority of the area.
Right to Property:
A person whose property rights are adversely affected by any administrative action is entitled to natural justice before passing orders to demolish. house the licensed administrative authorities must give the occupant a show cause against such order.
Before a student faces disciplinary action, such as expulsion canceling the exam results, he is entitled to fair hearing on the principles of natural justice.
Exceptions to the Rules of Natural Justice:
In the following grounds, there may be exclusion to the rules of Natural Justice:
Exclusion in exceptional cases of Emergency:
Where a company has to be wound up to save the depositors or a trade dangerous to society is to be prohibited or a dangerous building is to be demolished or in such other exceptioanl cases of emergency, where urgent/prompt action, preventive or remedial, is needed application of the rule of fair hearing may be excluded (Joseph Vs. Reserve Bank of India).
Exclusion in cases of Dire Public Interest:
In Mohinder Sing gill Vs. Chief Election Commissioner, the Supreme Court of India held that the Rule of Fair Hearing can be obviated in administrative adjudication or in a decision-making process to save greater public interest.
Exclusion in cases of confidentiality:
If application of the rule of fair hearing breaks any confidentiality which is detrimental to national interest or public order, in that case this rule may be excluded (Malak Singh Vs. State of Punjab).
Exclusion in case of Academic Adjudication:
A student of the University was removed from the rolls for unsatisfactory academic performance without giving any pre-decisional hearing. The Supreme Court of India held that where the competent academic authorities examine and assess the work of a student over a period of time and declare his performance unsatisfactory, application of the rule of fair hearing is not needed (Jawaharlal Nehru University Vs. B.S Narwal).12
Exclusion based on Impracticability:
In R. Radakrishnan Vs. Osmania University13 it is found that the entire M. B. A. entrance examination was cancelled by the University authority because of mass copying. The court held that notice and fair hearing to all candidates is impossible, which has assumed national proportions.
Exclusion in cases of Interim Preventive Action:
If any order taken by an administrative authority is a suspension order being preventive in nature and not a final order, in that case application of the rules of Natural Justice may be excluded (Abhay Kumar Vs. S. Srinivasan0.
Exclusion in cases of Legislative Action:
Exclusion is justified if the nature of administrative action is legislative. If any administrative action, taken in violation of Natural Justice, does not apply to a single individual or a few specified persons and is of general nature, it may be called legislative (Saraswati Industrial Syndicate Vs. Union of India).
In the case of statutory exclusion the natural justice is not applicable.
(i) Selection of candidates: natural justice is not applicable
(ii) Suspen of employees: where disciplinary action is pending, then the natural justice is not applicable
(iii) Large number of cases : In this case, a large number of cases natural justice is not applicable
Due process of law and the rules of natural justice:
In U.S.A. the concept of the rules of Natural Justice is not frequently heard. Because it is not necessary for them to rely on this concept as the concept of due process of law has been guaranteed by the U.S.A. constitution by its 5th and 14th constitutional amendments, the gist of which stands as “no person shall be deprived of life, liberty or property without due process of law”. In the hands of the Supreme Court, the phrase due process of law early came to evolve a twofold meaning substantive and procedural and the rules of natural justice were considered to be implied in the procedural aspect of due process. 
Thus, in Hagar vs. Reclamation District, the court held that “whenever it is necessary for the protection of the protection of the parties, it must give them an opportunity to be heard respecting the justness of the judgment sought.
It is, thus, to be seen that the ingredients of procedural due process basically correspond to the English Common Law rules of natural justice. Indeed, Natural Justice is a concept of common law world counterpart of the American procedural due process.
Equity and the Rules of Natural Justice:
“Equity” may be defined to be natural right or justice, as addressed to the conscience, independent of express or positive law; a system of jurisprudence, the object of which is to render the administration of justice more competent, either by the application of rule to cases not provided for by positive law, or by adopting remedies more exactly to the exigencies of particular cases (Burril Law Diet. tit. “Equity”). Equity is based on good conscience, fair dealing and justice. It does not interfere when law provides adequate remedy. It only denotes the spirit and the habit of fairness and justness. It desires to gie to each man his dues according to natural law.
Now, it is observed from the forgoing discussion that the concept of ‘equity’ actually covers the doctrine of reasonableness, the concept of striking down malafide action and also the concept of rules of Natural Justice. Indeed, the concept of Natural Justice comes within the ambit of the concept of equity. The exclusions to the rules of Natural Justice are also based on the concept of ‘Equity’. In fact, both these concepts are not contrary to each other rather conducive and complementary.
The concept of natural justice has been established in case laws. Although there is no specific statutes containing provisions of the concept of natural justice, But it has become an integral part of procedural laws. It has an important role to diminish arbitrary exercise of discretionary power.