Listen to the other side or let the other side be heard as well
In most law frameworks, “Audi alteram partem” is called a theory of fundamental justice or equality, or the concept of natural justice. This theory covers the privilege of a defendant or its attorneys to question the witnesses against him, to have an equal chance to contest the facts provided by the other side, to call one’s own witnesses and to present proof, and to provide representation, if necessary at public expense, in order to render a reasonable argument. Natural justice is the common law theory which means fairness, reasonableness, equality, and equity. In India, the principles of natural justice form the basis of Article 14 and Article 21 of the Constitution.
This doctrine gives a right that one shall not be condemned of anything without being heard. It is based on the principles of natural justice and ensures a just and fair hearing. It gives both parties, the right to be heard and an opportunity to defend themselves before the court of law. Any decision made without giving fair opportunity to both the parties is held to be against the principle of natural justice. It is mainly applicable in the field of administrative action which is regarded as the first principle of civilized jurisprudence. In simple terms, before an order is passed against any person, a reasonable opportunity of being heard must be given to him.
“No suggestion can be more obviously settled than that a man can’t cause the loss of freedom or property for an offense by a legal continuing until he has had a reasonable chance of noting the body of evidence against him”.
It simply means that “A person will not suffer unless and until he had an opportunity of being heard. This is the primary rule of the humanized statute and is acknowledged by the laws of men and god. Before any order is passed against any individual person, a sensible chance of being heard must be given to him. In this maxim, two principles are considered that is fundamental justice and equity.”
This maxim includes the following elements:
1. Notice: Before any action is taken, the affected party must be given the notice to show cause against the proposed action and seek his explanation. It is a sine qua non (an essential condition) of the right of fair hearing. Any order passed without giving notice is against the principles of natural justice and is regarded as void ab initio (not legally binding). The right to notice means the right of being known. The right to know the facts of the suit or case happens at the start of any hearing. Therefore, notice is a must to start a hearing. Non-issue of the notice or any defective service of the notice does not affect the jurisdiction of the authority but violates the principle of natural justice.
2. Hearing: The reasonable opportunity of hearing which is also well known as ‘fair hearing’ is an important ingredient of the Audi alteram partem rule. This condition may be complied by the authority by providing written or oral hearing which is the discretion of the authority unless the statute under which the action being taken by the authority provides otherwise. It is the duty of the authority to ensure that the affected party to be given an opportunity of oral or personal hearing if the context requires otherwise.
3. Evidence: Another important aspect of this maxim is Evidence, which is to be brought properly before the Court in the presence of both the parties and a judicial or quasi-judicial authority must have to act on the evidence produced and not merely on any information which the authority may receive otherwise. The principle is not confined to formal evidence but extends to any material including information regarding previous conviction, upon which the Tribunal may act, without giving an opportunity to the affected party to rebut it.
4. Cross-Examination: The adjudicating authority in a fair hearing is not only required to disclose the person concerned to the evidence or material to be taken against him, but he should also be provided an opportunity to rebut the evidence or material. The important question before the authority is that the witness should be cross-examined or not.
However, there can be an exception in cases where the statute itself excludes it (statutory exception) or where a legislative function is involved, or due to the impracticability of application of the principle, or due to an inter-disciplinary action.
If a person has been arrested and is not being able to represent himself through a lawyer, it the duty of the state to provide legal aid to that person, or the person should be granted free legal aid if he is not being able to afford legal services.
In Maneka Gandhi vs. The Union of India, it was held that the law and procedure must be fair, just, and reasonable. The principle of natural justice comes into force when no prejudice is caused to anyone in any administrative action. The principle of Audi Alteram Partem is the primary notion of the principle of natural justice. This doctrine states that no one shall be condemned unheard and ensures a fair hearing as well as fair justice to both the parties. Under this doctrine, both parties have the right to speak. No decision can be declared without hearing both the parties. Both parties are given equal rights to defend themselves.
In Jawaharlal Nehru University v. B.S. Narwal, B.S Narwal, a student of Jawaharlal Nehru University was expelled from the class without giving any pre-decisional hearing, because of his unsatisfactory academic performance. The Supreme Court held that the idea of academic adjudication seems to be negative. In this way, if the skilled scholarly experts look at work crafted by students over some duration and declare his work unacceptable, the principle of natural justice might be rejected.
In Eshav Mills Co. Ltd. v. Union of India, it was held that the notice which is given to the parties should be clear and unambiguous. If it is ambiguous and it is not clear then the notice will not be considered as reasonable and proper.
In Punjab National Bank v. All India Bank Employees Federation, it was held that the notice is given to the party only contained certain charges and not any penalty imposed on those charges. Hence, the charges on which penalty was imposed were not served as a notice to the parties concerned. The notice was not proper and thus, the penalty which was imposed was invalid.