When does right to hearing transform into right to fair hearing:
 a study with reference to the maxim - audi alteram partem

I. MEANING OF audi alteram partem: Audi alteram partem means that no one should be condemned unheard. In a civilized society it is assumed that a person against action is sought to be taken or whose right or interest is being affected, shall be given a reasonable opportunity to defend himself. This principle is a sine qua non of every civilized society.

o In R v. Sussex Justices, exp. McCarthy, 1924
LORD HEWART said that rule of fair hearing is not merely of some importance but is of fundamental importance that justice should not only be done but should manifestly and undoubtedly be seen to be done.
As has been frequently observed that, the benefit of this rule was given to Adam and Eve by God before they were punished for disobeying His command [Ref. case: King v. Chancellor, University of Cambridge, 1723 by FORTESCUE. J., ]

II. COMPONENTS OR INGREDIENTS OF AUDI ALTERAM PARTEM: Generally the maxim includes two components namely –
1. Notice and
2. Hearing.

1. NOTICE: The term notice originated from the Latin word ‘notitia’ which means ‘being known’. In its popular sense it is equivalent to information or knowledge. In legal sense it embraces knowledge of circumstances that ought to induce suspicion or belief, as well as direct information of that fact.

o ADEQUACY OF NOTICE: Notice should be adequate; a notice in order to be adequate must contain the following things –
(i) Time, place and nature of hearing.
(ii) Legal authority and jurisdiction under which hearing is to be held.
(iii) Matters of facts and law as regard the charges.

o SERVICE OF NOTICE: When a statute prescribes a particular mode to serve a notice, the prescribed mode has to be followed. Normally, a statutory rule prescribes the following modes to serve a notice –
(i) By delivering it to the person.
(ii) Sending it to him by registered post.
(iii) By affixing it on the outer door of the residence [when service can not
be made by the above two modes].

2. HEARING: The second requirement of the maxim audi alteram partem is that the party concerned must be given an opportunity of being heard before any adverse action is taken against him.

RELEVANT CASES:
o Ridge v. Baldwin, [1964] AC 40
In this case, under Section 191(4) of the Municipal Corporation Act, 1882, Watch Committee had power to dismiss any constable whom it thought to be negligent in his duty or otherwise unfit for the same. The appellant was dismissed without an opportunity of hearing. The House of Lords held that the power of dismissal cannot be exercised without giving an opportunity to the person concerned of being heard.

o Maneka Gandhi v. Union of India, AIR 1978 SC 597
In this case, the passport of the petitioner was impounded by the Government of India in ‘public interest’. No opportunity was afforded to the petitioner before taking the impugned action. The Supreme Court held that it was violation of audi alteram partem.

o Swadeshi Cotton Mills V. Union of India, AIR 1981 SC 818
In this case the Government of India by exercising its power conferred on it by Section 18-A of the Industries [Development and Regulation] Act, 1951 took over the management of the petitioner company. The company challenged the action on ground of non-observance of the principle of audi alteram partem. The High Court of Delhi held that the requirement of prior notice and hearing were excluded by the statute.

Allowing the appeal, the Supreme Court held that in order to ensure fair play in action it was imperative for the Government to comply substantially with the fundamental rule of prior hearing before passing the impugned order.

o Olga Tellis v. Bombay Municipal Corporation, AIR 1896 SC 180
In this case, under a statute the Commissioner was empowered to remove construction without notice. However, the court held that it was merely an enabling provision and not a command not to issue notice before demolition of any structure. The direction was therefore, required to be exercised according to the principles of natural justice.

RULE OF FAIR HEARING: Natural justice is primarily identified with fair hearing. As a general rule, it is settled that even where the statute is silent about the procedure to be followed by an administrative authority, natural justice would require a minimum of fair procedure. A hearing to be fair must fulfil several the following requirements –

1. RECEPTION OF EVIDENCE PRODUCED BY THE PERSON: The adjudicating authority must give full opportunity to the affected person to produce all relevant evidence in support of his case. For fair hearing it is necessary that the concerned party must be given right to present his case and evidence.

2. DISCLOSURE OF MATERIALS: A cardinal principle of natural justice is that the adjudicating authority must disclose all material placed before it in course of proceedings. The authority cannot base its decision on any material unless the person against whom it is sought be utilized has been given an opportunity to rebut or explain the same.

3. REBUTTAL OF ADVERSE EVIDENCE: For fair hearing it is not enough that the party should know the adverse material but it is further necessary that he must be given an opportunity to rebut the evidence. The right of hearing will be of little value if the concerned party is kept in dark as to the evidence against him and he is not given an opportunity to deal with it.
For making the opportunity to rebut evidence meaningful, it is necessary to consider the following two factors –

(i) CROSS- EXAMINATION: Cross examination is one of the effective modes of establishing truth and establishing false-hood. Generally, in cases of domestic inquiries by employers against their employees in the area of labour management relations, in disciplinary proceedings under Article 311 of the Constitution against civil servants or by a statutory corporation against its employees, the right of cross- examination of witnesses is regarded as an essential content of natural justice and fairness.

(ii) LEGAL REPRESENTATION OR RIGHT OF COUNSEL: Right to fair hearing includes right to counsel or right of legal representation as well.

o In Pett v. Greyhound Racing Assn (I), [1968] 2 All ER 545
LORD DENNING observed, when a man’s reputation or livelihood is at stake, he not only has a right to speak by his mouth. He also has a right to speak by counsel or solicitor.

o In MH Hoskot v. State of Maharashtra, AIR 1978 SC 1548
while importing the concept of ‘fair hearing’ in Article 21, the SC ruled that the right to personal liberty implies provision by the state of free legal service who is indigent or disabled from securing legal assistance where the ends of justice so demand.

Books Referred:
1. CK Takwani, ‘Lecturers on Administrative Law' 3rd Edn. Reprint 2004, Published by Eastern Book Company, Lucknow, India
2. MP Jain and SN Jain, ‘Principles of Administrative Law', 5th Edn. Revised 2007, Published by Wadhwa and Company, Nagpur, India
3. JJR Upadhyaya, ‘Administrative Law’, 7th Edn. 2009. Published by Central Law Agency, Allahabad, India

The  author can be reached at: drrajibhassan@legalserviceindia.com