Exceptions to the Principles of Natural Justice

3. Emergency and urgency

Where immediate action is necessary to protect public health, public safety, public order or the public revenue, a prior hearing may be dispensed with. The seizure of adulterated food, the demolition of a dangerous structure, the suspension of a bank and the closure of a source of infection are the standard examples.

Note the relationship with the previous chapter: urgency ordinarily excludes the pre-decisional hearing only, and a post-decisional hearing is then required: [Post-Decisional Hearing].

The urgency must be real. Administrative convenience, workload, or a wish to avoid argument is not urgency, and a court will examine whether the situation genuinely required immediate action.

4. The useful formality theory

Where a hearing could not have made any difference to the outcome, the courts have sometimes declined to interfere. The classic example is where the facts are admitted and only one legal conclusion is possible.

This exception is the most criticised, and an answer should say why. It invites the authority, and then the court, to decide what the person would have said if he had been heard. That reasoning is circular: the whole purpose of a hearing is that nobody knows in advance what will emerge from it. Indian courts have therefore applied it narrowly, and the safer formulation is that relief may be refused in the court's discretion where the breach has caused no prejudice, rather than that no breach occurred.

5. Legislative action

Natural justice does not apply to rule making, because a rule affects a class defined by description rather than an identified person. Nobody is entitled to be heard before a general rule is made, though the statute may require consultation: [Other Controls: Publication, Consultation and Procedural Safeguards] and [Classification of Administrative Functions].

6. Confidentiality and national security

Where disclosure of the material would itself damage the public interest, the ordinary requirement of disclosure yields. This is closely connected with public interest privilege, treated in [Government Privilege in Legal Proceedings and State Secrets].

Two qualifications matter. The claim must be genuine and is examinable by a court; and, where possible, the substance of the case should be disclosed even if the source is protected, so that the person can answer it.

7. Academic evaluation

The assessment of an examinee's answer script, or of a research student's work, is not a matter for a hearing. Examiners evaluate; they do not adjudicate. But the exception is confined to evaluation. Where a student is charged with misconduct, such as copying, the charge is disciplinary and natural justice applies in full.

8. Admitted facts and no prejudice

Where the person admits the facts on which the action is based, there is nothing to hear him about on those facts, though he may still be entitled to be heard on the penalty.

9. Impracticability

Where the number of persons affected makes individual hearings impossible, or where the person cannot be found, the requirement may be relaxed. This is a genuine but narrow exception, and a general notice or a representative hearing is often the answer rather than no hearing at all.

10. Necessity

Where the authority said to be disqualified for bias is the only one competent to act, it may act, because otherwise the matter could never be decided: [The Rule Against Bias].

11. Interim and preventive orders

An order that is provisional, and that will not become final until the person has been heard, does not require a prior hearing, because nothing is finally determined without one. A suspension pending inquiry is the standard example.

A worked example

The State Government supersedes the elected body of a municipal council and appoints an administrator, acting under a section which says the Government may supersede a council "if in its opinion the council is not competent to perform its duties". No notice is given. Which exception, if any, applies?

Statutory exclusion? No. The section is silent about a hearing, and silence is not exclusion: Swadeshi Cotton Mills v. Union of India, AIR 1981 SC 818.

Emergency? Only if the facts show one. If the council has ceased to function and essential services have stopped, immediate action may be justified and a post-decisional hearing will follow. If the ground is the mismanagement of a contract two years ago, there is no urgency and a hearing should have been given.

Legislative action? No. Supersession of a named council is a determination about an identified body, not a general rule.

Useful formality? The Government may argue that the council's incompetence is established by the audit report and a hearing would change nothing. The answer is that the council might have explained the audit findings, so this is precisely the reasoning the courts distrust.

Conclusion. Absent genuine urgency, the order is bad for want of a hearing.

Now vary the facts. The section reads: "The Government may supersede a council forthwith where in its opinion there is a breakdown of civic services endangering public health, and shall thereafter afford the council an opportunity of being heard within thirty days." Now the exclusion is express, it is confined to a defined emergency, and a post-decisional hearing is built in. It is very likely valid.

Distinctions worth having straight

What it does NOT mean

It does not mean silence excludes natural justice. Silence is the situation in which the rules are most often implied.

It does not mean an express exclusion is the end of the matter. It must still satisfy Articles 14 and 21.

It does not mean urgency excludes the hearing altogether. It usually postpones it.

It does not mean the useful formality theory is a general escape. It is applied narrowly, and the safer analysis is the discretionary refusal of relief where no prejudice was caused.

Quick revision

1. Natural justice supplements the law and yields to a valid statute, but exclusion must be specific or by inevitable implication: Swadeshi Cotton Mills v. Union of India, AIR 1981 SC 818.
2. An express exclusion must still satisfy Articles 14 and 21 after Maneka Gandhi v. Union of India, AIR 1978 SC 597.
3. The exceptions: statutory exclusion; constitutional exclusion under the second proviso to Article 311(2); emergency; useful formality; legislative action; confidentiality and security; academic evaluation; admitted facts; impracticability; necessity; and interim or preventive orders.
4. Second proviso to Article 311(2): conviction on a criminal charge; not reasonably practicable to hold an inquiry, for reasons recorded; and security of the State.
5. Urgency ordinarily postpones the hearing rather than abolishing it.
6. The useful formality theory is criticised because it requires guessing what the person would have said, and is applied narrowly.
7. Academic evaluation is excluded, but disciplinary proceedings against a student are not.

Test yourself

1. State the exceptions to the principles of natural justice. Express statutory exclusion, or exclusion by inevitable implication from the scheme of the Act; constitutional exclusion, most importantly under the second proviso to Article 311(2); emergency or urgency requiring immediate action; the useful formality theory, where a hearing could not have affected the outcome; legislative action such as rule making, which affects a class and not an individual; confidentiality and the security of the State; academic evaluation as distinct from disciplinary action; cases where the facts are admitted; impracticability, where the numbers affected make individual hearings impossible; the doctrine of necessity, where the authority alleged to be biased is the only one competent to act; and interim or preventive orders which do not finally determine anything.

2. Can a statute exclude natural justice? How clearly must it do so? Yes, because natural justice supplements the law rather than overriding it. But the exclusion must be specific or arise by inevitable implication from the statutory scheme, as Swadeshi Cotton Mills v. Union of India, AIR 1981 SC 818, holds. Mere silence is not exclusion; in that very case the audi alteram partem rule was read into section 18AA of the Industries (Development and Regulation) Act 1951, which said nothing about a hearing and required no prior investigation. Furthermore, an express exclusion is not immune from challenge: after Maneka Gandhi v. Union of India, AIR 1978 SC 597, a procedure under Article 21 must be right, just and fair, and a provision denying a hearing may itself be unconstitutional under Articles 14 and 21.

3. Explain the useful formality theory and the criticism of it. The theory is that where a hearing could not have made any difference to the result, for example because the facts are admitted and only one conclusion is legally possible, the absence of a hearing does not vitiate the decision. It is criticised because it requires the court to decide what the person would have said had he been heard, which is precisely what nobody can know in advance; the purpose of a hearing is that it may produce something unexpected. Indian courts apply it narrowly, and the sounder formulation is that relief may be refused in the court's discretion where no prejudice was in fact caused, rather than that there was no breach at all.

4. Does urgency dispense with natural justice altogether? Ordinarily not. Urgency excludes the pre-decisional hearing where immediate action is necessary to protect public health, safety, order or revenue and where delay would defeat the purpose of the power. A post-decisional hearing is then required, and it must be full, fair and effective: Swadeshi Cotton Mills v. Union of India, AIR 1981 SC 818. The urgency must also be genuine; administrative convenience or a wish to avoid argument does not qualify, and the court will examine whether immediate action was really required.

5. Does natural justice apply to the evaluation of an examination answer script? No. Academic evaluation is an exception: an examiner assesses, he does not adjudicate between parties, and there is nothing on which the candidate could usefully be heard. The exception is confined to evaluation. Where a student is charged with misconduct such as copying or impersonation, the proceeding is disciplinary and not evaluative, and the full requirements of natural justice apply, including notice of the specific charge, disclosure of the material and an opportunity to answer.