Indian Judiciary and Natural Justice

Author(s): Pramila Agrawala and Pramila Agrawal

Source: The Indian Journal of Political Science , JULY—SEPTEMBER—DECEMBER, 1964,
Vol. 25, No. 3/4, CONFERENCE NUMBER FOR XXVI INDIAN POLITICAL SCIENCE
CONFERENCE 1964: ANNAMALAINAGAR (JULY—SEPTEMBER—DECEMBER, 1964), pp.
282-291
Published by: Indian Political Science Association

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 Indian Judiciary and
Natural Justice
Miss Pramila Agra w ala

Research Scholar , Department of Political

Science , Bañaras Hindu University.

The idea of natural justice is not a new one. It has appeared from time to
in different garbs. From the natural law concept of Greeks and Romans to
modern concept of natural law through the natural right concept of the contract
lists, there has been a general transformation.1 When in the 19th century an
20th century statutory law, that is, man-made law, generally replaced natura
divine law and such others, somehow the idea of natural law and natural ju
lingered on us. In the first place, it has been thought that even man-made la
Aquinas long ago suggested was nothing but a reflection of the eternal law of God
natural law ingrained universally in all mankind seeking statutory expression.

In the second place it was thought that even if man-made law does not ref
natural law, it must be made conformable to canons of natural law and nat
justice by constitutional provisions such as the " due process " in the Amer
Constitution which enables the judges to measure every piece of legislation wi
yard-stick of canons of natural justice. In England where such Bill of Right
constitutional privisions do not exist, the idea of natural justice continued to exist
the judgment of the judicial officers in various forms especially in procedural mat

The justification for judicial application of natural justice standard in su

countries is something like this. All laws made by human beings are liable
faulty and effective because they are the result of human effort and defective lang
Human speech has never been found adequate to express fully human though
draftsmen might be intelligent and careful but written word has always been a so
of confusion thus leading to litigation, so the defects of this faulty draftsmanship
be contrawaived by the judiciary by careful application of certain eternal prin

1. " Until the 18th Century the phrase 'natural justice' was used synonymously with n
law which, in its turn, was equated with divine law." From the unpublished thes
Prof. M. N. Chaturvedi for the LL. M. Degree of B. H U. entitled'Judicial Delinea
of Persons Protected under Article 31 1 (2) of the Constitution of India..
2. In 1760 Lord Mansfield C. J. considered the phrase as inclusive of substantial law in Mos
V. Macferlan.

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 283

of justice enshrined in what is called natural justice. Moreover, the modern age is
an age of rapid technological advance which brings about a great social change and
outlook on social, economic and political values thus making the enforcement of the
letter of law, inadequate if not completely wrong, to do justice to the litigant citizens.

At the same time the judges have realised that the problem of natural law and
its application to specific cases has not been an easy matter. Thus says a great
authority.

" No riddle is more difficult to solve, none has more persistently engaged the
attention of thoughtful mind " than the problems of the natural sense of justice.3

But everywhere somehow natural justice is identified with an instinctive and

spontaneous understanding of justice with a tinge of morality, equity and fairplay
all supposed to be ingrained in the human bosom. This spontaneous expression, no
doubt need not be a moral monopoly of judiciary alone but as that branch of govern-
ment entrusted with the task of judicial adjudication. It is in the hands of the judici-
ary that the concept has received elaborate annotation, especially, as already stated
in procedural matters as understood in Anglo-Saxon jurisprudence. Natural
justice means certain eternal absolute principles of justice which may be summarised
in the words of Willis, as follows :4

{a) Opportunity for both the contesting parties to be heard.

(b) Hearing before an impartial tribunal so that no man can be the judge of
his own cause.
(c) Decision made in good faith.
(ď) The party against whom evidence is obtained, must be given an opportu-
nity to contradict it.

The same idea has been expressed by Hood Philipci in the following
way :5
(a) No one shall be a judge in his own cause.
(b) The judges deciding are bound to hear the other side.
(c) The trial must be held in good faith without bias and not arbitrarily or
unreasonably.

However, it does not mean that natural justice though supposed to be derived
from nature is thus of universal validity and also a fixed or uniform concept. .It
has been a dynamic one growing with time and differing from place to place as
Justice Mangham says :
3. Allen : Quoted by B. N. Banerjee in 'Natural justice and Social justice' (Before the Supreme
Court) pp. 3.
4. Willis 'Constitutional Law' (1956) p. 662.
5. Hood Philipci, " Constitutional Law " p. 414,

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 284

"Eminent judges have at times used the phrase, 'the principles of natural justiď,
but the phrase is of course used only in a popular sense and must not be taken to
mean that there is any natural justice among men. The truth is that justice is a very
elaborate conception, the growth of many centuries of civilization, and even now the
conception differs widely in countries usually described as civilized." 6

We can now sum up our impression of natural justice. In the words of Justice
Hamilton " Natural justice means that a result or process should be just, it is a
harmless thought, it may be a high sounding expression but in so far as it attempts
to reflect old 'Jus Naturale it is a confused and unwarranted transfer into the ethical
sphere of a term employed for other distinctions, and in so far as it is resorted for
other purposes, it is vacuous."

The British ideas of natural justice naturally got filtered into the Indian judicial
system. Even before Independence though the Federal Court had no direct juris-
diction over natural justice, the Privy Council had the power of granting special
leave of appeal from the Indian Federal Court. After Independence, naturally we
abolished the jurisdiction of the Privy Council but we provided for natural justice
rather in two ways. There has been a direct provision for natural justice in some of
the Articles protecting individual liberties and the rights of the civil servants- thus
Articles 14, 19 and in a way Article 21 (I say in a way, because the Supreme Court
had denied the meaning of procedural due process to Article 21 of Fundamental
Rights) and Art. 311 dealing with the protective rights of civil servants.

In all these cases the judiciary is given a free hand to decide the reasonableness
of the application of law, reasonableness depending upon the sense of fairplay, on
the part of judges themselves, which means the application of natural justice. Then
they reach the provision of Article 136 which confers on the Supreme Court, the
right to grant special leave whereby some members of the Constituent Assembly
understood as bringing natural justice within the realm of the Supreme Court. Thus
Shree Alladi Krishnaswami Aiyer said in the Constituent Assembly' 7 :

" It is necessary to realise the comprehensive nature and the plenitude of the
jurisdiction conferred by the Article

develop its own rules and conventions in the exercise of its jurisdiction

There is nothing preventing the Supreme Court from

ence in such a way that it could do complete justice in e

Secondly even in the case of other matters than thos

there is nothing to prevent the Supreme Court or th

6. Maclean V. Workers' Union (1929).

7. Constituent Assembly Debates Volume VIII p. 638 to 639

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 285

their notion of natural justice specially in procedural matters. Thus we can conclude
that natural justice is firmly enshrined in our Constitution and jurisprudence.

But a word of caution. Natural justice could find a free place in the Constitu-
tion where the Court accepts to apply the law according to the spirit of the Constitu-
tion. In the American system where the judiciary had accepted it, many cases were
decided on the spirit of the Constitution but in our country at the earliest possible
opportunity in Gopalan V. Madras, our Supreme Court denied its very existence at
all. In a Constitution which is very elaborate, said one of the judges, there could be
no scope for spirit of lhe constitution. Thus the whole import of Article 21 was
diluted by the Supreme Court, yet this very Supreme Court allowed their notions
of fairplay and reasonableness free entry into the otherwise strict adherence to the
letter of the law. There is no doubt that natural justice is firmly enshrined in our
Constitution and jurisprudence.

Now we come to its application by the Supreme Court of India. Since Indepen-
dence until now there are so many cases in the Supreme Court in which we find that
natural justice is used to a very large extent. The Supreme Court of India has not
deviated from the above principles of natural justice and has in substance adopted
them. There are some decided cases in which the Supreme Court applied natural
justice as a fundamental basis of its decision. Here are some decided cases. While
we thought that natural justice had no place in our jurisprudence in view of the
judgment given in Gopalan's case, the Supreme Court made a reference to it in
a case in 1952 where thejudges said that when an inferior tribunal commits, "an error
apparent on the face of the proceeding or any irregularity, it is a case which goes
contrary to the principles of natural justice."8

The Supreme Court linked up the constitutional provision with natural justice
in the case of P. John V. State of Travancore-Cochin. 9 The Civil Servant concerned
was the Chief Engineer. An enquiry was made against the officer. A copy of
report was given to the officer and he was asked to show why he would not be
removed from service, and he did not do so. The Supreme Court held that the
opportunity that was given to the officer to show cause was sufficient but Mahajan,
C. J. went further and said, " that all the rules of natural justice were fully observed
during the enquiry in this case and the petitioner had the fullest opportunity."

Chief Justice Mahajan, made a very cryptic reference to Natural Justice and
probably with some justification. All that Article 311 (2) provides for is 'reasonable
opportunity' being given ; on a narrow view of this constitutional safeguard, it
might be held that an opportunity given to show cause would serve the requirement

8. Parry and Co. V. C.E.A. AIR 1942 S.C.P. 179,

9. 1955 A.I.R. S.C.A. 85.

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 286

of the safeguard. For that purpose the Supreme Court laid down a measure of the
opportunity to be given, firstly in the case of Union of India V. T. R. Verma10
and again in the case of Khemchanda V. Union of India.11

Another remarkable application we find in the case of Mukhtar Singh V. State

of U.P.12 A Division Bench of the Court laid down :

" The principles of natural justice are those rules which have been laid down by
the Courts as being the minimum protection of the rights of the individual against
the arbitrary procedure that may be adopted by a judicial or quasi-judicial autho-
rity while making an order, affecting those rights.. .These rules are intended to
prevent such authority from doing injustice."

Excepting in cases of dismissal or removal by departmental action, the attitude

of the Supreme Court towards rules of Natural Justice has been " a positivist
attitude."13 This has been made by the Supreme Court in two cases. In the first
case Sangram Singh V. Election Tribunal, Kotah,14 Justice Bose said -

" A law of natural justice exists in the sense that a party must be heard in a
Court of law, or at any rate be afforded an opportunity to appear and defend himself,
unless there is express provision to the contrary, is we think beyond dispute. "

In the case of Nagendera Nath Bose V. The Commissioner of Hill Division,

Sinha J. observed.

" The question whether or not any rules of natural justice had been contravened
should be decided not under any preconcieved notions but in the light of statutory
rules and provisions."

In the same case the Court has laid down that, " the rules of natural justice vary
with the varying circusmtances of statutory bodies and the rules prescribed by the
Act under which they function and the question whether or not any rules of natural
justice had been contravened, shall be decided not under any preconceived notion,
but in the light of the statutory rules and provisions."

The decision of the Supreme Court in the case of Nageshwar Rao V. State of
A.P.1 5 naturally followed from the above. What happened was that after the decision

10. 1958 S.C.A. 110

11. 1958 S.C.A. 220.
12. A.I.R. 1957 All. 297.
13. B.N. Banerjee : 'Natural Justice and Social Justice, p. 17,
14. 1955 S.C.A. p. 545.
15. 1959 A,I,R. S.Ç. 1376,

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 íil

oí the case, reported in the case,16 the proceeding of nationalisation of the Road
Transport was carried through the Chief Minister of the State who also happened to
be the Minister-in-charge. The objections were mainly :

1. The Chief Minister being a party, could not be a judge in his own cause.
2. That the Chief Minister having prejudged had no fair mind and as such
was disqualified to act. It was against the principle of natural justice.1 7

In Phulbari Tea Estate V. Its workmen,1 8 the principle of natural justice was
applied to an Industrial Dispute under section 2 of the Industrial Dispute Act (1947)
and the Court quoted with approval the statement of law contained in the case of
Union of India V. T. R. Verma.19

Relying on these cases, again in the case of New Prakash Transport Co. Ltd., V.
New Swarna Transport Co. Ltd.20 and in Pnujab National Bank Ltd. V.
All India Punjab National Bank Employees Federation,21 the same proposition was
accepted by the Supreme Court which observed ;

" The principle of natural justice must be followed and that the employee
against whom disciplinary action is sought to be taken must be given charge-sheet,
evidence against him must be recorded in his presence, and he must have an
opportunity to rebut the said evidence. "

A similar liberal expression of Natural Justice is to be found in Babul Chandra

Mitra V. C.J. and other Judges of Patna High Court,22 a case under section 9 of the
Indian Bar Councils Act 1926. In this case Mukherjee J. laid greater emphasis
on the extension of the principle of natural justice. Along with this the Supreme
Court paid special attention regarding the termination of employment.

For the first time the Supreme Court had invoked the principles of natural
justice in determining whether a law was validly promulgated or published. In the
case of Haría V. The state of Rajasthan,23 Bose J. observed :

" Natural Justice requires that before a law can become operative it must be
promulgated or published. It must be broadcast in some recognisable way so that
all men may know what it is

16. 1959 A.I.R. S.C. 308.

17. Suranjan Chakravarti, 'Natural Justice' p. 20.
18. A.I.R. 1959 S.C. p. 1111.
19. A.I.R. 1957 S.C. p. 882, 885.
20 .A.I.R. 1957 S.C. p. 232.
21. A.I.R. 1960 S.C. p. 160.
22. A.I.R. 1954 S.C. p. 524.
23. (1951) S<C. p. 299.

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 288

Again in the case of State of Madhya Pradesh V. Chintamani Sadashiva

Waishampayan,23 Gajendragadkar J quoted the judgement given by Venkatraman
Aiyer J in the Union of India V. T. R. Verma :24

"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, and 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."

Gajendragadkar J declared in his own judgement :

" It is hardly necessary to emphasise that the right to cross-examine the witnesses
who give evidence against him is a very valuable right. If it appears that effective
exercise of this right has been prevented by the enquiry officer by not giving to the
officer relevant documents to which he is entitled, that inevitably would be that the
inquiry had not been held in accordnce with rules of natural justice, That is the
view taken by the High Court, and in the present appeal which has been brought to
this Court under Article 136 we see no justification for interfering with it."

The same expression has been imprinted by Sinha, C.J., in the case of the New
Prakash Transport Co. Ltd. V. The New Swarna Transport Co. Ltd.25 Here
Sinha C.J. made three propositions of natural justice :

(a) If an Administrative Tribunal conforms to statutory rules of procedure

there is no violation of natural justice, however summary the procedure may be.

(b) The measure of opportunity to be given to rebut the said evidence may be as
informed on reading out that evidence before the parties, leaving them to decide what
to do thereafter.

(c) The requirements of natural justice may be waived.

In the light of the above cases it becomes apparent that the principle of natural
justice was applied by the Supreme Court. However, it is not one-sided. There
are some instances of cases where the Supreme Court did not apply these rules of
natural justice. So neither the Supreme Court has applied it in all the cases nor has
it applied in a full sense too. The following are some of the cases in which the
Supreme Court had refused to accept the principle of natural justice in full.

24. A.I.R. 1962 S.C.

25. A.I.R. 1958 S.C.R. 499 at p. 507.
26. 1957 S.CAt 178.

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 289

In the first constitutional case A. K. Gopalan V. State of Madras,2 6many of the

judges differed with one another on the element of "procedural due process" in the
Indian system. Justice Patanjali Shastri observed.2 7

"

by such vague and uncertain concepts as 'the

of natural justice."

Justice Fazal AH reported :28

" I am aware that some judges have expressed a

'natural justice' on the ground that it is too v
well-known principles with no vagueness about
respected and recognised, they cannot be disc
ultimate analysis found to be based on natural ju

In the case of F. RoyV. Collector of Custom

Sea Customs Act (1878), the complaint of the app
a personal hearing in his appeal before the Ce
was a case of violation of natural justice. Sark

" There is no rule of natural justice that at e

personal hearing."

Further in the case of New Prakash Transpo

port Co. Ltd.,29 at one place Sinha J. accepted
the same case, in some places he had refused

" The only question which requires determi

not there has been a failure of natural justice in
adopted by the Appellate Authority. But befor
that the question whether the rules of natural
cular case must itself be judged in the light of th
which has to function in accordance with the
in that sense the rules themselves must vary.

"And the assumption that the methods of na

the Courts of justice, is wholly unfounded. It is
dure or forms of pleading. In so far as the t
means that a result or process should be just,

27. A.I.R. 1950 S.C. p. 27.

28. Ibid p. 12.
29r 1950, S.C.R. 88C(vide minority judgment;)
37

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 290

higfi sounding expression in so far as it attempts to reflect the old jus naturale , it is a
confused and unwarranted transfer into the ethical sphere of a term employed for
other distinction, and in so far as it is resorted to for other purpose, it is vacuous."

The above cases show that the Supreme Court has refused to apply the principles
of natural justice, although it has admitted its validity and implications. The
same thing has been elaborated in the case Delhi Cloth and General Mills Ltd. V.
Kaushal Bhan,30 by Wanchoo J. :

"It is true that very often employers stay out inquiries pending the decision
of the criminal trial courts and that is fair, but we can not say that principles of
natural justice require that an employer must wait for the decision at least of the
criminal trial Court before taking action against an employee."

In the case of the Punjab National Bank Ltd. V. A.I.P.N.B.E. Federation 31,
Gajendragadkar C.J., made a similar statement :

"The other general contention raised is that in refusing reinstatement to the

employee other than Mr. Puri the appellate tribunal has acted contrary to natural
justice in as much as no opportunity was given to them to meet the case of the Bank
that they were directly or actively concerned with the offending documents. The
learned Attorney- General has strongly i elied on the principle that in enquiries of this
kind the principles of natural justice must be followed and that the employee against
whom disciplinary action is sought to be taken, must be given a charge-sheet, evi-
dence against him must be recorded in his presence and he must have an opportu-
nity to rebut the said evidence. Has this principle of natural justice been really
contravened in the present proceedings ? In our opinion, the answer to this
must be in the negative."

Further in conclusion he said - " Therefore we do not think that in the circums-
tances of the case it can be said that the conclusion of the appellate tribunal against
these employees is vitiated by the contravention of any rule of natural justice. "

The cases cited above all refer to the same kind where the Supreme Court has
deliberately made use of the concept of natural justice ; they all refer to case under
the procedural law specially under Article 311. Even in these cases our perusal
makes it quite clear that the Supreme Court has not used this term on any doctrinaire
basis. In all cases, an authority on the subject, Dr. J. D. M. Derrett 32 is of the
opinion that the emphasis on natural justice in India was with a view to avoiding the
application of Common Law. In England the concept of natural justice as we have

30. A.I.R. 1958 S.C. p. 232.

31. A.I.R. 1960 S.C. p. 806.
32. Quoted by Prof. M. N. Chatruvedi of B.H.U. in his unpublished thesis for L.L.M. Degree.

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 291

seen, got merged in 'common law' whereas in America it has got a constitutional
assertion in 'due process' but we in India though occasionally dependent upon Roman
and American law, deliberately refused to derive it from the common law and at the
same time our judges draw inspiration from the British precedents.

As understanding of its application makes us to believe that, after all it depends

entirely on the marginal possibility of the judge's own propensity to obey the dictates
of his own reason. Thus it is one kind of 'reasonableness' though not explicitly
written in the Constitution about these particular procedural matters in the cases
referred to above but at the same time the Constitution itself makes it mandatory
that the Supreme Court should judge the reasonableness of the legislative and
executive measures, specially enshrined in Articles 14 and 19. Here also the
judges obey reasonable dictates of their own reason.

But why is the judiciary prepared to see reason in all matters under Articles 14,19
and other procedural matters? What is surprising to a layman is that the Supreme
Court has denied its application in one Article by which the Constitution wanted to
guarantee a procedural safeguard. I am here referring to the judgement given in
A.K. Gopalan V. Madras. In the same case the judiciary has denied the existence
of the spirit of the Constitution, but if one could argue so, the reasonableness of the
judges depends upon the social environment of the time which in its turn determines
the weaving of the spirit of the Constitution. Thus we could say that reasonableness
or natural justice is a result of the judiciary following the social conscience determined
by the spiiit of times. If that is so, in the nearest future, we maye xpect that the
judiciary will give procedural due process tinge to Article 21.

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