The Effect of a Failure of Natural Justice

In one line

An order made in breach of natural justice is bad, but whether it is a nullity from the start or merely liable to be set aside, and what the court actually does about it, are three different questions.

In the words a student can write in an exam: an order passed in violation of the principles of natural justice is void, in the sense that it is made without jurisdiction and can be challenged by a writ under Article 226 or Article 32; but the Indian courts have not treated the consequence as automatic, and the practical position is that such an order is voidable at the instance of the person aggrieved, who may waive the breach, and that the remedy is discretionary, so that relief may be refused where no prejudice was caused, where the petitioner has been guilty of delay or has himself acted improperly, or where quashing would serve no purpose, and the usual order is to quash the decision and remit the matter for a fresh hearing rather than to decide the merits.

The three questions, kept apart

Students lose marks here by running three separate questions together. Keep them apart.

1. Is the order void or voidable? A question of legal theory.
2. Can the breach be waived or cured? A question about the person affected.
3. What will the court actually do? A question about remedy and discretion.

Question 1: void or voidable

The theoretical position

The orthodox view is that a breach of natural justice goes to jurisdiction. An authority is empowered to decide only after hearing; if it decides without hearing it has done something the law never authorised, and its order is a nullity, void from the beginning, of no effect for any purpose and incapable of being validated.

The English revival of this view came in Ridge v. Baldwin, where a chief constable was dismissed without notice or a hearing and the House of Lords held the dismissal void. That case is the reason natural justice was restored to administrative decisions in England, and it is named in most Indian discussions of the topic.

Why "void" is an awkward word here

The difficulty is practical. If the order were truly void, then anybody could ignore it, it would need no court to set it aside, and it could be attacked collaterally in any proceeding at any time. That is not how the law works in practice, for three reasons.

1. Somebody must decide whether there was a breach. Until a court says so, the order looks valid and is acted on.
2. The person affected may not object. If he takes no steps, the order stands, which is not what one expects of a nullity.
3. He may waive the breach, and a nullity cannot be waived into existence.