Audi Alteram Partem

The organising idea is that the hearing must be effective, not merely formal. The test is whether the person had a real opportunity to influence the outcome.

The leading case on an implied right to be heard

Facts. Swadeshi Cotton Mills v. Union of India, AIR 1981 SC 818, concerned the Industries (Development and Regulation) Act 1951, under which the Union may in the public interest take under its control the industries in the First Schedule, item 23 being textiles. Section 15 permits a full and complete investigation where the Central Government is of opinion that there has been or is likely to be a substantial fall in production without justification, a marked deterioration in quality, an unjustified rise in price, a need to conserve resources of national importance, or that an undertaking is being managed in a manner highly detrimental to the scheduled industry or to the public interest. Section 16 permits directions after such an investigation. The Central Government took over the management of the company's undertaking under section 18AA(1)(a), which does not in terms require an investigation, without holding one and without hearing the company.

Held. By the majority, Chinnappa Reddy J dissenting, there had been non-compliance with the implied requirement of the audi alteram partem rule at the pre-decisional stage, and the order could have been struck down as invalid on that ground alone; in view of the concession that a hearing would be afforded, the case was remitted to the Central Government to give a full, fair and effective hearing. The phrase natural justice is not capable of a static and precise definition and cannot be imprisoned in the straitjacket of a cast-iron formula, and its rules are not embodied rules. The two fundamental maxims are audi alteram partem and nemo judex in re sua. Audi alteram partem is a highly effective rule devised to ensure that a statutory authority arrives at a just decision, and is calculated to act as a healthy check on the abuse or misuse of power; its reach should not be narrowed and its applicability should not be circumscribed. The rules of natural justice operate only in areas not covered by any validly made law, and a statutory provision may exclude them specifically or by inevitable implication.

Why it matters. Section 18AA said nothing about a hearing, and the Government argued that Parliament had deliberately provided for takeover without the investigation required elsewhere in the Act. The Court read the hearing in anyway. That is the practical importance of the case: silence in a statute is not exclusion, and the burden is on the authority to show express words or inevitable implication.

The constitutional foundation

Facts. Maneka Gandhi v. Union of India, AIR 1978 SC 597, concerned a passport issued in June 1976 and impounded in July 1977 by an order under section 10(3)(c) of the Passports Act 1967 stating only that it was done "in public interest". The petitioner was given no opportunity to be heard, and when she asked for the reasons the Government declined to supply them, saying it was not in the interest of the general public to do so. Section 5(3) of the Act requires reasons to be recorded where a passport is refused.

Held. Article 14 strikes at arbitrariness in State action and ensures fairness and equality of treatment; equality and arbitrariness are sworn enemies, one belonging to the rule of law in a republic and the other to the whim and caprice of an absolute monarch. The procedure contemplated by Article 21 must answer the test of reasonableness in order to be in conformity with Article 14, and it must be right and just and fair, and not arbitrary, fanciful or oppressive. The Passports Act does not provide for a reasonable opportunity to be heard in advance of impounding, but that is not conclusive of the question: even where the statute is silent, the law may in a given case make an implication and apply the principle, natural justice being a great humanising principle intended to invest law with fairness. There can be no distinction between a quasi-judicial function and an administrative function for this purpose.

Why it matters. It put audi alteram partem on a constitutional footing. After it, a statutory procedure that denies a hearing is not merely contrary to the common law; it is open to challenge under Articles 14 and 21 as a procedure that is not right, just and fair.

A worked example

The Regional Transport Authority proposes to cancel the permit of Bhosale Travels on the ground of repeated overloading. Work through what a fair procedure requires.

Notice. A letter stating the dates and vehicle numbers of the alleged overloading, the provision under which cancellation is proposed, and that cancellation is the action contemplated. A letter saying "your conduct has been unsatisfactory, show cause why action should not be taken" would fail on specificity.

Disclosure. Copies, or at least the substance, of the inspectors' reports and the weighbridge records relied on. If the Authority also has an anonymous complaint on the file and intends to act on it, that must be disclosed too, though the identity of the complainant may in some circumstances be withheld.

Time. A reasonable period to reply, measured against the volume of material.

Hearing. Written representations at minimum. If Bhosale Travels disputes that its vehicle was at the weighbridge on a given date and the Authority intends to rely on an inspector's oral account, an oral hearing with an opportunity to question the inspector is likely to be required, because the decision then turns on whom to believe.

The decision maker. The officer who hears should decide. If Officer A hears the matter and Officer B, who was not present, passes the order on the file, the hearing has been wasted.

Reasons. An order stating why the explanation was rejected.

Now vary it. Suppose the statute says the Authority "may cancel a permit forthwith, without notice, where it is satisfied that continued operation would endanger public safety". Here the exclusion is express and is justified by urgency, so a pre-decisional hearing is excluded; but a post-decisional hearing will ordinarily be required, and the exclusion itself must satisfy Articles 14 and 21: [Exceptions to the Principles of Natural Justice].

The elements that are not automatic

Students commonly overstate the rule, so three limits are worth stating plainly.

There is no general right to an oral hearing. Written representations satisfy the rule in a great many administrative contexts. An oral hearing is required where the facts are disputed or the consequences are grave.

There is no general right to legal representation. The starting point is that a person may present his own case. Representation is allowed where the statute provides it, and is required in fairness where the matter is legally or factually complex, where the other side is represented by a lawyer, or where the consequences are very serious.

There is no general right to cross-examine. It arises where the decision depends on the truthfulness of a witness whose evidence is relied on.

Distinctions worth having straight

What it does NOT mean

It does not mean a trial. The rule requires a fair opportunity, not the procedure of a civil court.

It does not mean the authority must agree. It must consider, not accept.

It does not mean silence in the statute excludes the rule. Swadeshi Cotton Mills and Maneka Gandhi both hold the opposite.

It does not mean every procedural slip invalidates the decision. Where the breach made no difference, the effect is the subject of [The Effect of a Failure of Natural Justice].

Quick revision

1. Audi alteram partem: hear the other side. Two limbs, notice and hearing.
2. Notice must be prior, specific, allow reasonable time, and disclose the material relied on.
3. The hearing must be effective. It may require written representations, an oral hearing, disclosure, evidence in the person's presence, cross-examination, representation, decision by the person who heard, and reasons.
4. Swadeshi Cotton Mills v. Union of India, AIR 1981 SC 818: audi alteram partem was implied into section 18AA of the Industries (Development and Regulation) Act 1951; natural justice cannot be imprisoned in a cast-iron formula; exclusion must be specific or by inevitable implication.
5. Maneka Gandhi v. Union of India, AIR 1978 SC 597: the procedure under Article 21 must be right, just and fair; natural justice may be implied where the statute is silent; no distinction between quasi-judicial and administrative functions.
6. No automatic right to an oral hearing, to a lawyer or to cross-examination; each arises where fairness on the facts requires it.
7. He who hears must decide.

Test yourself

1. Explain the rule audi alteram partem and its contents. It means hear the other side, and requires that a person whose rights or interests are to be affected be given notice and an opportunity to answer before the decision is taken. Notice must be given before the decision, must be specific as to the charge, the grounds and the action proposed, must allow reasonable time, and must disclose the material relied on, since a person cannot answer evidence he has not seen. The hearing must be effective rather than formal, and may require written representations, an oral hearing where facts are disputed or the stakes are high, the taking of evidence in the person's presence, cross-examination where credibility is in issue, legal representation where the matter is complex or the other side is represented, a decision by the authority that heard the matter, and reasons.

2. Can the right to be heard be implied where the statute is silent? Yes. In Swadeshi Cotton Mills v. Union of India, AIR 1981 SC 818, the Government took over an undertaking under section 18AA of the Industries (Development and Regulation) Act 1951, a provision which required no prior investigation and said nothing about a hearing, and the Supreme Court held that the audi alteram partem rule was implied at the pre-decisional stage and had not been complied with. In Maneka Gandhi v. Union of India, AIR 1978 SC 597, the Court held that although the Passports Act 1967 did not provide for a hearing before impounding a passport, that was not conclusive, and that even where the statute is silent the law may make an implication and apply the principle. Exclusion requires express words or inevitable implication.

3. Is there a right to legal representation before an administrative authority? Not as of right. The starting position is that a person may present his own case, and many statutes exclude representation expressly. Fairness will nevertheless require it in particular circumstances: where the matter is legally or factually complex, where the authority or the opposing side is represented by a lawyer, where the person is unable to present his own case, or where the consequences are grave. The question is always whether, without representation, the person had a real opportunity to answer.

4. Must adverse material be disclosed to the person affected? Yes, where the authority relies on it. A hearing is meaningless if the decision rests on material the person has never seen and has had no chance to explain or contradict. The requirement extends to inspection reports, audit notes, complaints and expert opinions relied on. In limited cases the source may be protected while the substance is disclosed, but withholding the substance altogether and then acting on it is a breach of the rule.

5. "He who hears must decide." Explain. Where an oral hearing is held, the authority that heard the person should be the one that takes the decision, because the value of an oral hearing lies in the impression the explanation makes on the mind of the decision maker. If one officer conducts the hearing and another, who was not present, passes the order on the file, the hearing has served no purpose and the requirement of an effective opportunity has not been met. The rule does not prevent a decision on written representations by an officer who has read them, since there is nothing in that case which only presence could convey.