Updated: Aug 12, 2021
Question | Audi alteram partem’, rule is a very flexible, malleable and adaptable concept of natural justice to adjust the need for speed and obligation to act fairly.” Examine the statement with the help of decided case-law
Importance of this question : This question was asked in 2019 UPSC Law Optional Mains under compulsory part for 10 marks.
How to answer this question ?
Step 1: Read the question twice understand it
Step 2 : It’s a statement based question thus, try to find out from where it is picked. Usually these type of statements will be taken from landmark judgments.
Step 3 : Question demands you to write the whole answer – examine the statement with cases. So identify the cases supporting the statement
Step 4 : Start writing your answer by giving cases that support the statement, you can quote cases that go against the statement too since you are in process of examining the statement.
ALL THE BEST !
Answers can be written till 12.08.2021
Solution will be posted on 12.08.2021 Your answer will be evaluated on 14.08.2021
How can I post my answer ?
Step 1 : Write your answer in a sheet of paper and take a picture of it . Step 2 : Use the "+" button in the comment section to post the same.
ANSWER | The statement quoted above was given in the judgment of Swadeshi Cotton Mills v. Union of India, context of the same will be explained later
What is audi alteram partem ? The principles of natural justice are based on fairness, reasonableness and equity. One of the basic concept of principles of natural justice is ‘Audi Alteram Partem’. ‘Audi Alteram Partem’ is derived from the latin phrase ‘audiatur et altera pars’. It means ‘to hear the other side’ i.e. no person shall remain unheard or both the parties must be given an opportunity of being heard.
Understanding principle of natural justice : The concept of natural justice includes two rules that is- no one shall be a judge in his own case and secondly rule of ‘audi alteram partem’ that no decision shall be given against a party without affording him a reasonable hearing.
Swadeshi Cotton Mills v. Union of India AIR 1981 SC 81- context of the statement given
“Audi alteram partem rule may be disregarded in an emergent situation where immediate action brooks no delay to prevent some imminent danger or injury or hazard to paramount public interests.
Thus, Section 133 of the Code of Criminal Procedure, empowers the magistrates specified therein to make an exparte conditional order in emergent cases, for removal of dangerous public nuisances. Action on grounds of public safety public health may justify disregard of the rule of prior hearing.
The audi alteram partem rule, as already pointed out, is a very flexible, malleable and adaptable concept of natural justice.”
Statement explained by court - ( flexibility is )To adjust and harmonise the need for speed and obligation to act fairly, it can be modified and the measure of its application cut short in reasonable proportion to the exigencies of the situation.
To what extent the rule can be flexible ? The question, (as to what extent and in what measure) this rule of fair hearing will apply at the pre-decisional stage will depend upon the degree of urgency, if any, evident from the facts and circumstances of the particular case.”- COURTS WORDS !
In Union of India v. W.N. Chadha AIR 1993 SC 1082 - The Supreme Court observed that rule of ‘audi alteram partem’ is rule of natural justice and its application would be excluded if the rule leads to injustice.
Exceptions to the rule of ‘audi alteram partem’
1) Statutory exclusion
Natural justice is submitted by the Courts when the parent statutes under which an action is made by the administration is quiet as to its application. Exclusion to make reference to one side of hearing in the statutory arrangement does not reject the hearing of the other party. A statute can exclude natural justice either expressly or y necessary implication.
2) Legislative function
Hearing is prohibited in certain circumstances. The ground on which hearing is excluded is that the action of the administrative in question is legislative and not administrative in character. If the legislative exclusion is based on arbitrariness, unreasonableness then the courts can cancel that provision under Article 14 and 21 of the Constitution.
In cases of urgency when the delay would lead to jeopardizing the interest of the public, then rule of hearing would be excluded.
In cases of confidentially, the rule of audi alteram partem can be excluded.
In Malak Singh v. State of P &H, the apex court held that maintaining the surveillance register by the police is a confidential document and public is barred to access it. Further, the court observed that application of principle of natural justice in such cases would defeat the purpose of surveillance.
If it not practicable to apply the rule of natural justice then in such circumstances the rule of hearing is excluded.