Principles of Natural Justice

Principles of Natural Justice are those rules which have been laid down by courts as being minimum protection of the rights of the individual against the arbitrary procedure that may be adopted by a judicial, quasi-judicial and administrative authority while making an order affecting those rights.

Norms of Natural Justice: Norms of Natural Justice are as follows:

a. No one should be condemned unheard;

b. No one shall be judge in one’s own case;

c. A party is entitled to know the reasons for the decision;

d. Making available a copy of statutory report.

Principles of Natural Justice: There are mainly two Principles of Natural Justice and these two principles are:

(A) Nemo Judex in Causa Sua (Rule Against Bias) &

(B) Audi Alteram Partem (Rule of Fair Hearing).

(A) Nemo Judex in Causa Sua (Rule Against Bias): 

Nemo Judex in Causa Sua is a Latin word which means “No man shall be a judge in his own cause”. It means the deciding authority must be impartial and without bias. It implies that no man can act as a judge for a cause in which he has some interest which may be pecuniary or otherwise.

Bias: 

Bias means an operative prejudice, whether conscious or unconscious, in relation to a party or issue. As a result of this, the ‘Rule Against Bias’ strikes against those factors which may improperly influence a judge in arriving out at a decision in any particular case.

The requirement of this principle is that the judge must be impartial and must decide the case objectively on the basis of evidence on record and merit. Therefore, if a person for whatever the reason, cannot take an objective decision on the basis of evidence on record and on merit he/she shall be said to be biased.

A person cannot take an objective decision in a case in which he/she has an interest for, as human psychology tells that, very rarely can people take decisions against their own interests. This 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 adjudicatory process because not only must “no man be judge in his/her own cause” but also “justice should not only be done but should manifestly and undoubtedly be seen to be done”.

On the basis of above, it is clear that Rule Against Bias is so important in Principles of Natural Justice and it is required to be discussed in length. There are many kind of ‘Bias’ under this principle. Primely important ‘Bias’ components are discussed in successive paras hereinafter.

Personal Bias: 

It arises from a certain relationship equation between the deciding authorities and the parties which results into inclination of him/her unfavourably or otherwise on the side of one of the parties. Such equation may develop out of varied form of personal or professional hostility or friendship.

An example of Personal Bias can be taken from a judgement delivered by Hon. Apex Court that it quashed the selection list prepared by Departmental Promotion Committee (DPC) which considered the confidential reports of candidates prepared by an officer who himself was a candidate for promotion. In this case, Principle of Natural Justice – Rule against Bias (Personal Bias) was not followed.

Pecuniary Bias: 

The kind of favour/bias which involves financial interest and decision is affected is known as Pecuniary Bias. Judicial approach is unanimous and decisive on the on the point that any financial interest whether small or huge would vitiate administrative as well as judicial action. Pecuniary Biased member cannot be involved in any decision-making machinery as chances of fair and impartial decision may not be delivered.

In a case, Hon. Supreme Court quashed the decision of the Textbook Selection Committee because some of its members were also authors of books which were considered for selection.

Subject Matter Bias: 

Those cases fall within this category where the deciding authority is directly, or indirectly or otherwise, involved in the subject matter of the case. Mere involvement would not vitiate the administrative action unless there is a real likelihood of bias.

In a case, Hon. Supreme Court quashed the decision of the Andhra Pradesh Government, nationalizing road transport on the ground that the Secretary of the Transport Department who gave hearing was interested in the subject-matter.

Departmental bias or Instrumental bias:  

It when the functions of a Judge and the Prosecutor (Public Prosecutor/Government counsel) are combined in the same department as it is not uncommon to find that the same department which initiates the matter also decides, department which heard and decided the case was the same, the element of departmental bias vitiated administrative action.

The problem of departmental bias is something which is inherent in the administrative process, and if it is not effectively checked, it may negate the very concept of fairness in the administrative proceeding.

In a case, Hon. Supreme Court quashed the notification of the Government which conferred powers of a Deputy Superintendent of Police on the General Manager, Haryana Roadways in matters of inspection of vehicles on the ground of departmental bias. In this case, private bus operators alleged that the General Manager of Haryana Roadways who is a rival in business in the State, cannot be expected to discharge his duties in a fair and reasonable manner he would be too lenient in inspecting the vehicles belonging to his own department.

Preconceived Notion Bias: 

This type of bias is also known as unconscious bias. All person exercising adjudicatory powers are humans with human prejudices, no matter some persons are more humans than others. This may include class bias and personality bias. Every person is a product of a class and inherits some characteristics of the class which may also reflect in his decision-making process. In the same manner, the personality of every person is a combination of his biological and social heredity which determine his values and attitudes in a way that may condition his/her decision-making process. In general, it can be said community-based bias.

The problem of Preconceived Notion Bias is such which is inherent in any adjudication and cannot be eliminated unless detected by some over action of the authority and also is so detected can vitiate an administrative hearing if it has a direct relation with decision. This may include a situation where the deciding officer openly expresses his/her prejudice.

Bias on Account of Obstinacy: 

It is a new category of bias as discovered by Hon. Supreme Court arising out of thoroughly unreasonable obstinacy. It literally means unreasonable and unwavering persistence and the deciding officer would not take no for an answer. This category of bias was discovered in a situation where a judge of Hon. Calcutta high Court upheld its own judgement while sitting in appeal against its own judgement.

 (B) Audi Alteram Partem (Rule of Fair Hearing): 

Rule of fair hearing simply implies that a person must be given an opportunity to defend himself/herself as it is not merely of some importance but is of fundamental importance that justice should not be done but should manifestly and undoubtedly be seem to be done. However, refusal to participate in enquiry without valid reason cannot be pleaded as violation of natural justice at a later state.

The important components of this rule are – (a) Right to Notice; (b) Right to present case & evidence; (c) Right to Rebut Adverse Evidence; (d) Cross-Examination; (e) Legal Representation; (f) Report of Inquiry to be shown to the Other Party; (g) Post Decisional Hearing. These components of Rule of Fair Hearing are discussed in length in successive paras hereinafter.

Right to Notice: 

The term Notice originated from a latin word notitia means being known. ‘Notice’ is the starting point of any hearing in the case. Unless a person knows the formulation of subjects and issues involved in the case, he/she cannot defend himself/herself. It is not enough that the notice in the case be given, but it must be adequate also. Any decision taken without serving notice is liable to be quashed subject to conditions.

Notice which is to be served in the case is to be adequate and must contain – 

(i) sufficient information and material so as to enable the person concerned to put up an effective defence; 

(b) name of person to whom notice to be served; 

(c) Time, place & nature of hearing; 

(d) sufficient time to be given to comply with the requirement of notice; 

(e) Statement of specific charges which the person has to meet/alleged as a person cannot be punished for any other charge for which notice is not served. A notice should not create any dilapidated condition in the case.

Right to Present Case & Evidence: 

The adjudicatory authority should extend reasonable opportunity to the party to present his/her case. This can be done through writing or orally at the discretion of the authority unless the statute under which the authority is functioning directs or otherwise.

The requirements of natural justice are met only if opportunity to represent is given in view of the proposed action. The demands of natural justice are not met even if the very person proceeded against has been furnished information on which the action is based, if it is furnished in a casual way or for some other purposes. This does not mean that the opportunity need be a “double opportunity”, that is one opportunity on the factual allegations and another on the proposed penalty.

This can be done through writing or orally. Oral hearing is not an integral part of fair hearing unless the circumstances are so exceptional that without oral hearing a person cannot put up an effective defence. In a case where complex legal and technical questions are involved or where stakes are very high, oral hearing shall become a part of fair hearing. Thus, in the absence of a statutory requirement for oral hearing courts will decide the matter taking into consideration the facts and circumstances of every case.

Right to Rebut Adverse Evidence: 

The right to rebut adverse evidence presupposes that the person is informed about the evidence against him. This does not, however, necessitate the supply of adverse material in original in all cases. It is sufficient if the summary of the contents of the adverse material in made available provided it is not misleading.

The opportunity to rebut evidence necessarily involves the consideration of two factors: 

(i) Cross-Examination and (ii) Legal representation.

Cross-Examination: 

Cross-Examination is the most powerful weapon to elicit and establish truth. In case, where the witnesses have orally deposed, the refusal to allow cross-examination would certainly amount to violation of the principles of natural justice. In the area of labour relations and disciplinary proceedings against civil servants also, the right to cross-examination is included in the rule of fair hearing.

Legal Representation: 

Normally, representation through a lawyer in any administrative proceeding is not considered an indispensable part of the rule of natural justice as oral hearing is not included in the meaning of fair hearing. Denial of legal representation is justified on the ground that lawyers tend to complicate matters, prolong the proceedings and destroy the essential informality of the proceedings.

It is further justified on the ground that the representation through a lawyer of choice would give edge to the rich over the poor who cannot afford a good lawyer. The fact Techniques of Law remains that unless some kind of a legal aid is provided by the agency itself, the denial of legal representation would be a mistaken kindness to the poor people.

It is required to be established to what extent legal representation would be allowed in administrative proceedings depends on the provisions of the Statute. Factory Laws do not permit legal representation, Industrial Dispute Acts allows it with the permission of the Tribunal and some Statutes like Income Tax Act permit legal representation as a matter of right. However, the Courts in India have held that in situations where the person is illiterate, or the matter is complicated and technical, or expert evidence is on record or a question of law is involved, or the person is facing a trained prosecutor, some professional assistance must be given to the party to make his/her right to defend himself/herself correctly.

Report of Inquiry to be shown to the Other Party: 

It is experiences in many cases, especially in matters relating to disciplinary proceedings, on the basis of the report of the inquiry submitted by the Inquiry Officer, suitable action is taken by the competent authority. Under these circumstances a very natural question arises whether the copy of the report of the inquiry officer be supplied to the Charged Officer (DGS) before final decision is taken by the competent authority or otherwise? This question is important both from the constitutional and administrative law point of view.

One of the cardinal principles of the administrative law is that, any action which has civil consequences for any person cannot be taken without complying with the Principles of Natural Justice. Therefore, administrative law practice in disciplinary matter has always been whether failure to supply the copy of the Report of the Inquiry Officer to the Charged Officer (DGS) before final decision is taken by the competent authority would violate the principles of natural justice or otherwise?

In the same manner the constitutional question subsequently arises in such a situation, whether failure to supply the copy of the report of the Inquiry Officer to the Charged Officer (DGS) would violate the provisions of Article – 311(2) of the Constitution of India? 

Article – 311(2) of the Constitution provides that no government employee can be dismissed or removed or reduced in rank without giving him/her a reasonable opportunity of being heard in respect of charges framed against him/her. Therefore, it has always been a perplexing question whether failure to supply the report of the inquiry officer to the DGS before final decision is taken would amount to failure to provide “reasonable opportunity” as required under Article 311(2).

In the same line of interpretation, there is a question arises if copy of Inquiry Officer is not supplied to the DGS be treated as violation of Article 14 of the Constitution which enshrines the great harmonizing and rationalizing principle or otherwise?

Neither the findings nor the recommendations of the Inquiry Officer are binding on the Disciplinary Authority in disciplinary proceeding. The findings of Inquiry Officer with evidence recorded constitute material on which the government has ultimately to act and this is the only purpose of the Inquiry. Hence, it is advisable to show the findings of Inquiry officer to the DGS to satisfy the norm – reasonable opportunity under Principle of natural Justice.

The application of the principles of natural justice varies from case to case depending upon the factual aspect of the matter. For example, in the matters relating to major punishment, the requirement is very strict and full-fledged opportunity is envisaged under the statutory rules before a person is dismissed removed or reduced in rank, but where it relates to only minor punishment, a mere explanation submitted by the DGS concerned meets the requirement of principles of natural justice. Also, in some matters oral hearing may be necessary but in others, It may not be necessary.

Natural Justice

What is Natural Justice?

Natural Justice in simple terms can be defined as the minimum standards or principles which the administrative authorities should follow in deciding matters which have the civil consequences. Natural Justice represents higher procedural principles developed by judges which every administrative agency must follow in taking any decision adversely affecting the rights of a private individual. One of the cardinal principles of the administrative law is that any action which has civil consequences for any person cannot be taken without complying with the Principles of Natural Justice.

The Principles of Natural Justice are firmly grounded under various Articles of the Constitution. There are mainly two principles of Natural Justice – 

(a) Rule against Bias & (b) Rule of Fair Hearing.

Concept of Natural Justice

Natural Justice is a concept of Common Law and it is the Common Law which is the counterpart of the American concept of procedural due process. Natural Justice implies – fairness, reasonableness, equity and equality.

The concept of doctrine of Principles of natural Justice and its application in justice delivery system is since the beginning of justice delivery system.

Natural Justice represents higher procedural principles developed by judges which every administrative agency must follow in taking any decision adversely affecting the rights of a private individual.

Natural Justice is an expression of English common law which involves a procedural requirement of fairness. The term Natural Justice signifies basic principles of justice which are made available to everyone litigant during trial.

Historical background & development: 

Natural Justice is not a creation of Constitution or mankind; it is originated along with human history and civilization. The Greeks accepted the principle that no one should be condemned unheard. It was first applied in ‘Garden of Eden’ where opportunity to be heard was given to Adam and then he was punished.

Principles of Natural Justice are also found in (a) Arthsastra  written by Kautailya; (b) Manusmriti and many different texts as well. Before the beginning of era of Christ, Aristotle spoke about Principles of Natural Justice and called it as universal law.

Legal evolution: 

The birth of the Principle of Natural Justice cannot be ascertained in single time frame as it took its shape and necessity during the course human civilization. But, the Principles of Natural Justice through various decisions of courts can easily be ascertained through their application in a given situation may depend on multifarious factor. Hon. Supreme Court many times in its judgement talked about natural justice.

Constitutional provision: 

The Principles of Natural Justice are firmly grounded under various Articles of the Constitution. All fairness which is included in the principles of Natural justice can be read into Article 21 of the Constitution.

Article 14 applies not only to discriminatory class legislation but also to arbitrary or discriminatory State action. When a person is deprived of his/her life and personal liberty.

Violation of Natural Justice results in arbitration, therefore, violation of natural Justice is violation of Equality Clause of Article 14. As a result now, the principle of natural justice cannot be wholly disregarded by law because this would violate the fundamental rights guaranteed by Article 14 and 21 of the Constitution.

Norms of Natural Justice: 

a. No one should be condemned unheard;

b. No one shall be judge in one’s own case;

c. A party is entitled to know the reasons for the decision;

d. Making available a copy of statutory report.

The application of the principles of natural justice varies from case to case depending upon the factual aspect of the matter.

Registered Will

Registered Will: can it be legally challenged in the court?

The concept of Will has its deep-rooted origin for a very long time in India; its importance grows with the sense of transferring family wealth and business from one generation to another with ease.

A Will is a declaration by way of an established instrument wherein a person disposes of their property which shall take effect after their death and which to its primary nature is ambulatory and revocable during that person’s life. The Will was mainly recognised because of its ambulatory characteristics as it was a distinguishable feature of the disposition from the normal deed. According to the statute, a will is the aggregate of man’s testamentary intention so far as their manifested duly executed.

A will is a written document wherein a person states the procedure of devolution of his/her property and manifest his/her desire as to what and how a lifetime worth of assets will be dealt with after his/her death. A person who creates the Will is known as the ‘Testator’, and the person for whom the Will is executed is known as the “executor”, and the property disposed of in the Will is known as the subject matter of the Will.

In India, as the registration of the Will is concerned, the Indian Registration Act, 1908 deals with the provision that has to be complied with, and as per the provision of the Indian Registration Act, 1908, there exists no provision for making the registration of the Will compulsory , because  if the Act makes such document to be registered compulsorily that will attract some adverse consequences in many aspects of its practice in India. The registration of the Will in India is optional and at the peril of the parties creating a Will. The contrary opinions have been formed on the matter of registration of Will. It is always advisable by the legislature that a Will if made, should be registered. The Will has not necessarily been too registered by the testator or the creator of the Will, but any person who is an executor of the Will can write the Will after the testator's death. A Will can be kept with any person by himself (testator) or by any executor with the registrar wherein the Will was registered; the Will of the person can be deposited in the seal covered with the testator's name attached with the statement of nature of the document.

There are several legal considerations to creating a Will. The registered Will is a registered document/deed that can be challenged in the court of law for many reasons mentioned in this article below.

Reasons pursuing to which a registered Will can be challenged in the court of law:

1.     Fraud

A document made by any person that obliges any other person to work in part or in full for consideration or without any consideration will not be allowed to sustain. Such document will not be attributed any validity or legality in the eye of law. A registered document is though earned, a presumption that it is free from any malice or by any way illegal; according to the same understanding, it is interrelated that the registered Will is free from any fraud. The person who challenges the Will in the court of law on the reason that it was created by fraud the burden is upon him to prove the fraud in the registered document or registered Will.

2.     Coercion

Any person committing an act of violence against any such person from whom any obligations have to be fulfilled or any task has to be compelling without the consent of his/her is known as coercion. An act of coercion is illegal in the eyes of the law. If the reregistered Will is created by an act of coercion, it will be deemed unlawful, but such a person claiming the Will to be illegal has to prove that the Will is unlawful in this context.

3.     Undue Influence

Undue influence is to use the influence by way of position of power or for any reason of emotional connection wherein the decision is taken is not based on sound mind or informed reason. Such a factor plays a major role in deciding whether any document registered under such influence has any morality or, for that purpose, any legality. The registered Will for any purpose, if made by the undue influence of any family member or by any member of the testator, can be challenged in the court of law if proven by the substantial evidence on this behalf.

4.     Wills having suspicious nature

Various aspects prove the legality of the Will in the court of law, whereas the nature of Will also falls prey to being challenged if the Will is not created in complete accordance with these aspects. Following are various aspects if found, or deficient such Will could be challenged in the court of law:

a.     When any person creates a Will wherein any of the content(s) of the Will is vague or has no meaning as to substance, then such Will can be challenged, whereas if there exist two Wills wherein one is vague and other supplements other at the same time then such Will can be challenged, and such objection will be allowed by law.

b.     There exists a fault with regards to the stamp required by the Testator for registration of Will, and if such Will is not duly stamped but still registered, it can be challenged.

c.      If the thumb impression is required on the Will or not duly made or if there are more thumbprints though required by the law, such impression creates confusion among the signatories on the Will, such confusion on a Will can also be challenged in the court of law.

d.     If by the creation of Will there exists a disposition of property or devolution of any rights in the property but such disposition or devolution is made in favour of any person who is not remotely connected or there exists no connection to substantiate Will’s validity, then such Will can be challenged in the court of law.

e.    The Will has been executed at any place, but while registration, the date, time, and place has to be mentioned on the Will, but if at all the site of the execution on the Will is not mentioned, then such Will can be challenged in the court of law. E.g., If a person has executed a Will in a hospital, but the executor or any person concerned failed to mention this on a Will, then there can be a question raised on the validity of the Will in the court of law.

5.     Error in executing the Will

As any person who wishes to execute a Will, he has to perform some functions in creating Will and then some legal compliance to validate the Will and create a Will that has the support of law and is recognised in the eye of law. If there are errors in the execution of the “Will”, then such a Will can be challenged in the court of law.

6.     Error in the substance of Intention

As discussed above, the Will can now be fairly understood as the Testator’s demand/desire/order for dealing with his property after death. Any person while making a Will maintains a clear and transparent content as to the wish of the Testator, but such intention of the testator should be made clear, and the content of the Will should be concise and unambiguous, but if by any interpretation of the Will there seems so that the provision of any clause in the Will seems ambiguous or contrary to the intention of the testator then such clause or any Will to that extent can be challenged in the court of law.

7.     Incapacitate for Testamentary

There are certain pre-conditions required by any person who creates the Will that is mandatory for him/her to comply, without which anything done in such process of creation will be termed as null and void.

Following are certain conditions for creating a Will:

a. A person should be in the clear conscious to understand the terms and content of the Will and its effect with regards to the execution.

b. A person should be told, or he/she should understand the extent of his/her property he/she wishes to dispose of or his/her rights he/she wishes to devolve to someone.

c. A person willing to create a Will shall be able to comprehend and appreciate the claims to which he/she ought to give effect in terms of execution.

d. A person should be sound, and every decision taken by him/her should be in clear mind to its application when it’s brought in effect as to substance.

e. No person should be allowed to make a decision or create a Will at the time of any phase of paralysis of sound thinking or informed decision making.

f. If a person has a situation of mental disorder in intervals, a Will can only be created when the person is of sound mind.

g. A person should comply with all the requirements of section 10 of the Indian Contract Act, 1872 for a valid establishment of Will.

Conclusion

A Will is a very important aspect of a person’s life as it decides who will inherit all the hard-earned money once the person is dead. Therefore, in a country like India, it becomes very important that if a person finds a Will formed to be unsatisfactory, then he/she has the right to challenge the registered Will in the court to make sure there is no misconduct happening. The registered Will can be challenged for all the reasons mentioned above, and the procedure to be followed has been discussed in the article.

 - Adv. Anita Adsul

Writing a Will?

5 Things to know before writing a Will

1. Who will be the Executor of your estate?

You should decide who will be the Executor of your estate, and ask them if they will take on the role. Honesty and integrity are both important when choosing your Executor, as they will ensure that the terms of your Will are carried out.

It’s best to nominate someone you know and trust. This could be someone outside your family or friend circle, such as an accountant or lawyer. You can also appoint more than one executor in case the first person you choose is unable to fulfil the role at the time it’s needed.

2. Who will be the Beneficiaries of your Will?

A beneficiary is a person or people who inherit gifts or your estate, when you pass away. You get to choose your beneficiaries, with people most often choosing loved ones who mean a lot to them.

If you have a child or children, you will most likely nominate them as beneficiaries, so you can have peace of mind that they will be cared for and protected. Other beneficiaries can be parents, siblings, significant others, other relatives, and good friends. Many people also include charities and worthy causes in their Will as a beneficiary.

3. What will happen to your pets after you pass away?

Our pets are important members of our families. If you have a much-loved pet, you may want to ensure that they are cared for in the future.

You can’t leave a gift directly to your pet, but you can nominate a family member or friend to care for them. You can then allocate funds for the care of your pet, which your friend or family member will manage.

4. Can you leave a gift to a charity in your Will? 

You decide who will benefit from specific gifts in your Will or a share in your estate, after any outstanding expenses are paid. 

This means that as well as choosing family and friends as beneficiaries, you can also include a favourite charity, such as The Fred Hollows Foundation, in your Will. 

By choosing to leave a bequest to The Foundation, you will be helping restore sight to some of the most vulnerable people in Australia, and in 25 countries where we work. And just like Fred, your legacy will live on, helping to end avoidable blindness and strengthening eye health systems and the global health workforce for generations to come. A gift of as little as 1% of your Estate can make a significant difference to causes that you care about.

Alison, a passionate supporter of The Fred Hollows Foundation, who has left  a gift in her Will, says: "I strongly encourage anyone who supports The Foundation to seriously consider leaving a gift in their Will. It leaves a warm and fuzzy feeling to know that folks’ lives will be improved due to my contribution."

5. What happens if your don't have a Will? 

If you pass away unexpectedly without having written a Will, the court in your State or Territory will be appointed Executor and will use its own rules to decide what happens to your children (if you have any), as well as your assets and estate. This can be lengthy, stressful and expensive for your loved ones, who will have to bear the burden, while grieving. 

Having a Will in place will give you peace of mind that all your affairs are in order, and your nearest and dearest will be cared for, with one thing less to stress about.

-Adv. Anita Adsul