The maxim audialterampartem accentuates the rule of fair hearing. It lays down that no one should be condemned unheard. It is the first principle of the civilised jurisprudence that a person facing the charges must be given an opportunity to be heard, before any decision is taken against him. Hearing means ‘fair hearing’.
The norms of reasonableness of opportunity of hearing vary from body to body and even case to case relating to the same body. The courts, in order to look into the reasonableness of the opportunity, must keep in mind the nature of the functions imposed by the statute in context of the right affected. The civil courts, in India, are governed in the matter of proceedings, through the Civil Procedure Code and the criminal courts, by the Criminal Procedure Code as well as the Evidence Act. But the adjudicatory bodies functioning outside the purview of the regular court hierarchy are not subject to a uniform statute governing their proceedings.
The components of fair hearing are not fixed but are variable and flexible. Their scope and applicability differ from case to case and situation to situation. In Mineral Development v. State of Bihar, the apex court observed that the concept of fair hearing is elastic and not susceptible of a precise and easy definition. The hearing procedures vary from the tribunal, authority to authority and situation to situation. It is not necessary that the procedures of hearing must be like that of the proceedings followed by the regular courts.
The objective of the giving the accused an opportunity of fair hearing is that an illegal action or decision may not take place. Any wrong order may adversely affect a person. The maxim implies that the person must be given an opportunity to defend himself. LORD HEWART rightly observed that “ it is merely of some importance, but is of fundamental importance that justice should not only be done, but should manifestly and undoubtedly be seem to be done”. In this regard the Dr. Bentley case needs to be elaborately discussed. In this case the Court of King’s Bench condemned the decision of the Cambridge University, of canceling the degree of the scholar, without giving him the opportunity to be reasonably heard.
In another landmark case of Olga Tellis v. Bombay Municipal Corpn., the court held that even if the legislature authorises the administrative action, without any hearing, the law would be violative of the principles of fair hearing and thus violative of Articles 14 and 21 of the Indian Constitution. In Cooper v. Wandsworth Board of Works, BYLES J. observed that the laws of God and man both give the party an opportunity to defend himself. Even God did not pass a sentence upon Adam before he was called upon to make his defence.
Law envisages that in the cases classified as ‘quasi-judicial’, the duty to follow completely the principles of natural law exists. But the cases which are classified as the ‘administrative’, the duty on the administrative authority is to act justly and fairly and not arbitrarily. In the 1970 case of A. K. Karaipak v. Union of India, the Supreme Court made a statement that the fine distinction between the quasi-judicial and administrative function needs to be discarded for giving a hearing to the affected party. Before the Karaipak’s case, the court applied the natural justice to the quasi-judicial functions only. But after the case, the natural justice could be applied to the administrative functions as well.
Govt. of Mysore v. J V Bhat, (1975) 1 SCC 10: AIR 1975 SC 596
Syndicate Bank v. General Secretary, Syndicate Bank Staff Association, (2000) 5 SCC 65
AIR 1960 SC 468: (1960) 2 SCR 609
R. v. Sussex Justices, ex p. McCarthy, (1924) 1 KB 256, 259
R. v. University of Cambridge, (1723) 1 Str. 757: 93 ER 698
(1985) 3 SCC 545
(1861-73) All ER Rep 1554
AIR 1970 SC 150: (1969) 2 SCC 262
National Law University, Orissa
[Submitted as an entry for the MightyLaws.in Blog Post Writing Competition, 2011]