The Principle of “Audi Alteram Partem” as practiced by Indian Courts

There is a good deal of miscon­ception on the question of the right of cross-examination as part of natural justice. Natural justice is fast becoming the most unnatural and artificial justice and for this confusion the courts are no less responsible than the litigants. Ordinarily, the principle of natural jus­tice is that:

(i) No man shall be a judge in his own cause and

(ii) No man shall be condemned unheard.

This latter doctrine is known as audi alteram partem. It is on this principle that natural justice ensures that both sides should be heard fairly and reasonably.

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A part of this principle is that if any reliance is placed on evidence or record against a person then that evidence or record must be placed before him for his information, comment and criticism. This is all that is meant by the doctrine of audi alteram partem (no party should be condemned unheard). No natural justice requires that there should be a kind of a formal cross- examination.

Formal cross-examination is procedural justice. It is governed by rules of evidence. It is the creation of courts and not a part of natural justice but legal and statutory justice.

Natural justice certainly includes that before any statement of a person is accepted against somebody else, that somebody else should have an oppor­tunity of meeting it, whether by way of interrogation or by way of comment.

So long as the party charged has fair and reasonable oppor­tunity to see, comment and criticise the evidence, statement or record on which the charge is being made against him, the demands and the test of natural justice are satisfied. Cross-examination in that sense is not the technical cross-examination in a court of law in the witness box.

The judicial climate on this point is thickly clothed with many decisions. The result is that the danger of confusion has become real and natural justice is on the misleading road of sentimental poten­tialities.

The case of Union of India v. T.R. Varma, A.I.R. 1957 SC. 882: 1958 S.C.A. 110 was a case of a departmental enquiry on the ques­tion of wrongful dismissal. There is express provision in Rule 55 of the Fundamental Rules giving the aggrieved party the rights to cross- examine. For instance Rule 55 inter alia says:

“At the enquiry, oral evidence shall be heard as to such of the allegations as are not admitted, and the person charged shall be en­titled to cross-examine the witnesses.”

It was observed in this case:

“A stating it broadly and without intending it to be exhaustive, it may be observed that rules of natural justice require that a party should have the opportunity of adducing all relevant evidence on which he relies, that the evidence of the opponent should be taken in his presence, that he should be given the opportunity of cross-examining, the witnesses examined by that party and that no materials should be relied on against him without his being given an oppor­tunity of explaining them.

If these rules are satisfied, the enquiry is not open to attack on the ground that the procedure laid down in the Evidence Act for taking evidence was not strictly followed.”

The case of State of Madhya Pradesh v. Chintaman Sadashiva, A.I.R. 1961 S.C. 1623: Jab. L.J. 702, was also a case of disciplinary proceedings in respect of the dismissal of public servant. It repeated the principles laid down in A.I.R. 1957 S.C. 882.

The case of State of Mysore v. Shivabasappa Shivappa, AIR 1963 SC 375: (1963) 2 SCR 943, was also a case of a departmental enquiry and related to the rules of service. It also followed AIR 1957 SC 882, but it was observed:

“For a correct appreciation of the position, it is necessary to repeat what has often been said that tribunals exercising quasi-judi­cial functions are not courts and that, therefore, they are not bound to follow the procedure prescribed for trial of actions in courts nor are they bound by strict rules of evidence.

They can, unlike courts, obtain all information material for the points under enquiry from all sources and through all channels, without being fettered by rules of procedure which govern proceedings in court.

The only obligation which the law casts on them is that they should not act on any information which they may receive unless they put it to the party against whom it is to be used and give him a fair opportunity to explain it.

What is a fair opportunity depends on the facts and circumstances of each case but where such an opportunity had been given, the proceedings are not open to attack on the ground that the enquiry was not con­ducted in accordance with the procedure followed in courts.”

In conclusion, all that can be said is that natural justice must not be strained to become artificial justice. Procedural justice, according to statutes or under statutory rules, is different from the concepts of natural justice. There the procedure under the statute or the Rules must govern.

If the Collector of Customs were to convey himself to a regular court of law hearing formal cross-examination and applying the Evidence Act and the Civil and Criminal Procedure Codes in this manner as a court of law, then, of course, it will be physically and literally impossible for him to function as the Collector of Customs.

In a Calcutta case, it was observed:—

“The principle that no man should be condemned unheard, is a principle which cannot be exhaustively defined.

It embraces a wide range of situations in which acts or decisions have civil consequences for individuals by directly affecting their legitimate interests or expectations.

In a given context, the presumption in favour of importing the rule might be partly or wholly displaced:

(a) Where compliance with the rule would be inconsistent with a paramount need for taking urgent preventive or remedial action, or

(b) Where a disclosure of confidential but relevant informa­tion to an interested party would be materially prejudi­cial to-

(i) The public interest, or

(ii) The interests of other persons, or

(c) Where it was impracticable to give prior notice of hear­ing, or

(d) Where, in some cases, the Parliament has evinced an in­tention to exclude the operation of the rule-

(i) By conferring on the competent authority unfettered discretionary power, or

(ii) By expressly providing for notice or an opportunity to be heard for one purpose but omitting to make any such provision for another kindred purpose.

Where, however, a general duty to act judicially was cast on the competent authority only clear language would be interpreted as con­ferring the power to exclude the operation of the rule.”

The contention as to the impugned Notification, issued by the Joint Textile Commissioner in exercise of the powers conferred on him under Clause 20 of the Cotton Textiles (Control) Order of 1948, being violative of the principles of natural justice, has no substance.

It is well settled that the question of giving hearing to a class of per­sons does not arise where the Government is required to do some­thing to implement its policies. Policy decisions of the Government fall in different class altogether and are distinct from the administra­tive order of the Government affecting the citizens of the country.