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Contents

Concept of Natural Justice ................................................................................................... 1


Definition ......................................................................................................................... 1
History of the growth of Natural Justice .......................................................................... 2
Two Rules of Natural Justice .............................................................................................. 3
Right to a Fair Hearing ..................................................................................................... 3
At a Glance ................................................................................................................... 3
Scope of Fair Hearing ................................................................................................... 5
Aspects of a fair hearing ............................................................................................... 6
Rule Against Bias ........................................................................................................... 12
At a Glance ................................................................................................................. 12
Scope of the Rule against Bias ................................................................................... 12
Forms of bias .............................................................................................................. 13
Application of Natural Justice in Administrative Law ...................................................... 17
Application of Natural Justice in Bangladesh ................................................................... 22
The Constitution ............................................................................................................. 22
The Case Laws ............................................................................................................... 22
Natural Justice as Mechanism to Diminish Arbitrary Discretion ...................................... 25
Conclusion ......................................................................................................................... 27

Natural Justice : An Effective Mechanism


to Diminish Arbitrary Exercise
of Discretionary Power
1. Concept of Natural Justice
1.1. Definition
Natural Justice is an important concept in administrative law. The principles of natural
justice of fundamental rules of procedure is the preliminary basis of a good
administrative set up of any country. Natural justice represents higher procedural rules
developed by judges, which every administrative authority must follow in taking any
decision adversely affecting the rights of a private individual.1 Certain fundamental rules
which are so necessary to the proper exercise of power that they are projected from the
judicial to the administrative sphere.2 In fact, natural justice is price of the rule of law.3
It could just be referred to as Procedural Fairness, with a purpose of ensuring that
decision-making is fair and reasonable. This very concept has meant different things to
different peoples at different times. In its widest sense, it was formerly used as a
synonym for natural law. It has been used to mean that reasons must be given for
decisions; that a body deciding an issue must only act on evidence of probative value.
Some have asserted that the maxim Actus non facit reum, nisi mens sit rea is a principle
of natural justice.4 Whatever the meaning of natural justice may have been, and still is to
other people, the common law lawyers have used the term in a technical manner to mean
that in certain circumstances decisions affecting the rights of citizens must only be
1

Dr. I. P. Massey. Administrative Law, p. 170 (2nd edn.)


H. W. R. Wade, Administrative Law, p. 154 (2nd edn.)
3
S. M. Sikri, J, in Board of H. S. & I. E., U. P. Vs. Chitra, AIR 1970 SC 1039, 1040
4
Paul Jackson: Natural Law (1973) pp. 1-2
2

Natural Justice: An Effective Mechanism to Diminish Arbitrary Exercise of Discretionary Power

reached after a fair hearing has been given to the individual concerned. And in this
context fair hearing requires two things, namely, AUDI ALTERAM PARTEM and NEMO
DEBET ESSE JUDEX IN PROPRIA SUA CAUSA.
1.2. History of the growth of Natural Justice
Natural justice denotes specific procedural rights in the English legal system and the
systems of other nations based on it. It is similar to the American concepts of fair
procedure and procedural due process, the latter having roots that to some degree
parallel the origins of natural justice. Natural justice is identified with the two
constituents of a fair hearing, which are the rule against bias (nemo iudex in causa sua, or
"no man a judge in his own cause"), and the right to a fair hearing (audi alteram partem,
or "hear the other side").
The requirements of natural justice or a duty to act fairly depend on the context. In Baker
v. Canada (Minister of Citizenship and Immigration) (1999), the Supreme Court of
Canada set out a list of non-exhaustive factors that would influence the content of the
duty of fairness, including the nature of the decision being made and the process followed
in making it, the statutory scheme under which the decision-maker operates, the
importance of the decision to the person challenging it, the person's legitimate
expectations, and the choice of procedure made by the decision-maker.
Earlier, in Knight v. Indian Head School Division No. 19 (1990), the Supreme Court held
that public authorities which make decisions of a legislative and general nature do not
have a duty to act fairly, while those that carry out acts of a more administrative and
specific nature do. Furthermore, preliminary decisions will generally not trigger the duty
to act fairly, but decisions of a more final nature may have such an effect. In addition,
whether a duty to act fairly applies depends on the relationship between the public
authority and the individual. No duty exists where the relationship is one of master and
servant, or where the individual holds office at the pleasure of the authority. On the other
hand, a duty to act fairly exists where the individual cannot be removed from office
Natural Justice: An Effective Mechanism to Diminish Arbitrary Exercise of Discretionary Power

except for cause. Finally, a right to procedural fairness only exists when an authority's
decision is significant and has an important impact on the individual.

2. Two Rules of Natural Justice


The principles of Natural Justice are a part of the legal and judicial procedures and it
comprises of two concepts, namely
(a) Audi alteram partem, or the right to fair hearing
(b) Nemo judex in sua causa, or the no man can be a judge in his own cause
The first principle is known as rule of fair hearing and the second as rule against bias.
The first rule is based on common sense. It goes without saying that a decision which is
arrived at through the understanding of all the issues involved will be more rational. The
rule against bias ensures that a judge is not partial. He should not be influenced by
personal interest; for jurists and laymen alike have insisted that justice should be
manifestly seen to have been done. Where the judge has interest in the subject matter, or
in the party, or his own financial interest is involved, the objectivity of his decision is
bound to be questionable.
2.1. Right to a Fair Hearing
2.1.1. At a Glance

The essentials of the rule of procedural fairness are as follows:


I.

The respondent must be given full details of the accusations. That is, the
factual issues and allegations to be examined and discussed should be specified
in sufficient detail to enable adequate preparation of a defence and a reasonable
opportunity of adequate refutation.

II.

Relevant documents used in judgment on a case must be disclosed to both


parties.

Natural Justice: An Effective Mechanism to Diminish Arbitrary Exercise of Discretionary Power

III.

Decisions to admit or exclude evidence should be based on whether it is


relevant, reliable and logically valid, capable of being tested in some form. The
evidentiary basis for determination in harassment and discrimination cases is
on the balance of probabilities as opposed to beyond all reasonable doubt.

IV.

There should not be undue delay in hearing the matter. (If a


complainant/respondent fails to appear on a number of occasions the case
might be determined on the evidence of the party appearing).

V.

Notice of a hearing or conciliation conference should be serviced on the parties


with reasonable time to enable them to prepare their case. The time and place
must be clearly specified.

VI.

Unless there are exceptional circumstances, do not hear one side in the absence
of the other.

VII.

Give each party the opportunity to state their case adequately.

VIII. Give each party the opportunity to correct or contradict any statement
prejudicial to their case.
IX.

Witnesses, if any, should be examined or questioned and allowed to be


questioned by the other party. Adequate time should be allowed for this crossexamination.

X.

If there are different allegations by different complainants against the same


respondent in the same subject area, it may be a breach of procedural fairness
to hear the evidence or allegations together rather than separately as one may
unreasonably influence the other.5 It is also improper in such a case to inform
the complainants of the nature or details of each others complaints.

Chambers v James Cook University 1995

Natural Justice: An Effective Mechanism to Diminish Arbitrary Exercise of Discretionary Power

2.1.2. Scope of Fair Hearing

It is fundamental to fair procedure that both sides should be heard. 6 The right to a fair
hearing requires that individuals are not penalized by decisions affecting their rights or
legitimate expectations unless they have been given
I. prior notice of the cases against them,
II. a fair opportunity to answer them, and
III. the opportunity to present their own cases.7
Besides promoting an individual's liberties, the right to a fair hearing has also been used
by courts as a base on which to build up fair administrative procedures. It is now well
established that it is not the character of the public authority that matters but the character
of the power exercised.8 However, in the United Kingdom prior to Ridge v. Baldwin
(1963),9 the scope of the right to a fair hearing was severely restricted by case law
following Cooper v. Wandsworth Board of Works (1863).10 In R. v. Electricity
Commissioners, ex parte London Electricity Joint Committee Co. (1920), Ltd. (1923),
Lord Atkin observed that the right only applied where decision-makers had "the duty to
act judicially".11 In natural justice cases this dictum was generally understood to mean
that a duty to act judicially was not to be inferred merely from the impact of a decision on
the rights of subjects; such a duty would arise only if there was a "superadded" express
obligation to follow a judicial-type procedure in arriving at the decision.12

Wade & Forsyth, p. 402.


Thio Li-ann (1999), "Law and the Administrative State"
8
Wade & Forsyth, p. 405.
9
UKHL 2
10
Cooper v. Wandsworth Board of Works (1863) 14 C.B.N.S. 180
11
Ex parte London Electricity Joint Committee Co. (1920), Ltd., p. 205.
12
De Smith's Judicial Review, p. 330.
7

Natural Justice: An Effective Mechanism to Diminish Arbitrary Exercise of Discretionary Power

2.1.3. Aspects of a fair hearing

Prior notice of hearing


Natural justice allows a person to claim the right to adequate notification of the date,
time, place of the hearing as well as detailed notification of the case to be met. This
information allows the person adequate time to effectively prepare his or her own case
and to answer the case against him or her. In Cooper v. Wandsworth,13 Chief Justice
William Erle went so far as to state that the lack of notice and hearing afforded to Cooper
could be said to be a form of abuse, as he had been treated as if he did not matter. As
Lord Mustill famously held in R. v. Secretary of State for the Home Department, ex parte
Doody (1993): "Since the person affected usually cannot make worthwhile
representations without knowing what factors may weigh against his interests fairness
will very often require that he is informed of the gist of the case which he has to
answer."14
It has been suggested that the requirement of prior notice serves three important
purposes:
1. The interest in good outcomes giving prior notice increases the value of the
proceedings as it is only when the interested person knows the issues and the
relevant information that he or she can make a useful contribution.
2. The duty of respect the affected person has the right to know what is at stake,
and it is not enough to simply inform him or her that there will be a hearing.
3. The rule of law notice of issues and disclosure of information opens up the
operations of the public authority to public scrutiny.

13

Cooper v. Wandsworth Board of Works (1863) 14 C.B.N.S. 180, 143 E.R. 414
R. v. Secretary of State for the Home Department, ex parte Doody [1993] UKHL 8, [1994] 1 A.C. 531
at 560
14

Natural Justice: An Effective Mechanism to Diminish Arbitrary Exercise of Discretionary Power

The British courts have held it is not enough for an affected person to merely be informed
of a hearing. He or she must also be told what is at stake; in other words, the gist of the
case.
Opportunity to be heard
Every person has the right to have a hearing and be allowed to present his or her own
case. Should a person not attend the hearing, even with adequate notice given, the
adjudicator has the discretion to decide if the hearing should proceed. In Ridge v.
Baldwin, a chief constable succeeded in having his dismissal from service declared void
as he had not been given the opportunity to make a defence. In another case, Chief
Constable of the North Wales Police v. Evans (1982), a chief constable required a police
probationer to resign on account of allegations about his private life which he was given
no fair opportunity to rebut. The House of Lords found the dismissal to be unlawful.
Likewise in Surinder Singh Kanda v. Government of the Federation of Malaya (1962), a
public servant facing disciplinary proceedings was not supplied with a copy of a
prejudicial report by a board of inquiry which the adjudicating officer had access to
before the hearing. The Privy Council held that the proceedings had failed to provide him
a reasonable opportunity of being heard.
However, this requirement does not necessarily mean the decision-maker has to meet the
complainant face to face "Natural justice does not generally demand orality".15 It has
been suggested that an oral hearing will almost be as good as useless if the affected
person has no prior knowledge of the case. In Lloyd v. McMahon (1987), an oral hearing
did not make a difference to the facts on which the case was based. Giving judgment in
the Court of Appeal of England and Wales, Lord Justice Harry Woolf held that an oral
hearing may not always be the "very pith of the administration of natural justice". 16 It has

15
16

R. (Morgan Grenfell & Co. Ltd.) v. Special Commissioner of Income Tax [2001] EWCA Civ 329
Lloyd v. McMahon [1987] 1 A.C. 625, C.A. (England & Wales) and H.L. (United Kingdom).

Natural Justice: An Effective Mechanism to Diminish Arbitrary Exercise of Discretionary Power

also been suggested that an oral hearing is only required if issues concerning deprivations
of legal rights or legally protected interests arise.
Conduct of the hearing
When deciding how the hearing should be conducted, the adjudicator has to ask whether
the person charged has a proper opportunity to consider, challenge or contradict any
evidence, and whether the person is also fully aware of the nature of the allegations
against him or her so as to have a proper opportunity to present his or her own case. 17 In
Secretary of State for the Home Department v. AF (2009), Lord Phillips of Worth
Matravers said:
The best way of producing a fair trial is to ensure that a party to it has the fullest
information of both the allegations that are made against him and the evidence relied
upon in support of those allegations. Where the evidence is documentary, he should have
access to the documents. Where the evidence consists of oral testimony, then he should be
entitled to cross-examine the witnesses who give that testimony, whose identities should
be disclosed.18
The right to be heard in answer to charges before an unbiased tribunal is illustrated in the
Singapore case Tan Boon Chee David v. Medical Council of Singapore (1980). During a
disciplinary hearing, council members were either not conscientious about their
attendance or did not attend the whole course of proceedings. This meant they did not
hear all the oral evidence and submissions. The High Court held that this had
substantially prejudiced the appellant and constituted a fundamental breach of natural
justice. On the other hand, mere absence from a hearing does not necessarily lead to
undue prejudice. It was held in Re Teo Choo Hong (1995) that the function of a lay
member of a lawyers' disciplinary committee was to observe and not cast a vote or make
a judgment. Thus, the appellant had not suffered undue prejudice.
17
18

Kay Swee Pin v. Singapore Island Country Club [2008] 2 S.L.R.(R.) 802 at 806, para. 7.
Secretary of State for the Home Department v. AF [2009] UKHL 28

Natural Justice: An Effective Mechanism to Diminish Arbitrary Exercise of Discretionary Power

On the basis of reciprocity, if one side is allowed to cross-examine his legal opponent at a
hearing, the other party must also be given the same opportunity. 19 In addition, when a
tribunal decides a case on a basis not raised or contemplated by the parties, or decides it
without regarding the submissions and arguments made by the parties on the issues, this
will amount to a breach of natural justice.20 However, a genuine bona fide mistake by an
adjudicator in omitting to state reasons for not considering a submission is not enough to
be a breach of natural justice.21 This may occur when the submissions were accidentally
omitted, or were so unconvincing that it was not necessary to explicitly state the
adjudicator's findings.
Right to legal representation
There is no inherent common law right to legal representation before a domestic tribunal.
A tribunal has the discretion to admit either a legally qualified or unqualified counsel to
assist the person appearing before it, based on the facts of the case.22 When assessing
whether a party should be offered legal assistance, the adjudicator should first ask
whether the right to be heard applies, and, secondly, whether counsel's assistance is
needed for an effective hearing given the subject matter, bearing in mind the
consequences of such a denial.
In R. v. Secretary of State for Home Department, ex parte Tarrant (1983), Webster J. set
out six factors to be considered when deciding whether to allow representation by
counsel, namely:
1. the seriousness of the charge and the potential penalty;
2. whether any points of law are likely to arise.;
3. whether the prisoner is capable of presenting his own case;

19

Howe Yoon Chong v Chief Assessor [19771978] S.L.R.(R.) 386, H.C. (Singapore).
Front Row Investment Holdings (Singapore) Pte. Ltd. v. Daimler South East Asia Pte. Ltd. [2010]
21
SEF Construction Pte. Ltd. v. Skoy Connected Pte. Ltd. [2010] 1 S.L.R. 733
22
Kok Seng Chong v. Bukit Turf Club [1992] 3 S.L.R.(R.) 772, H.C. (Singapore).
20

Natural Justice: An Effective Mechanism to Diminish Arbitrary Exercise of Discretionary Power

4. whether they are any procedural difficulties faced by prisoners in conducting their
own defence;
5. whether there is reasonable speed in making the adjudication; and
6. whether there is a need for fairness between prisoners or between prisoners and
prison officers.
It has also been suggested that where a tribunal hearing concerns the individual's
reputation or right to livelihood, there is a greater need for allowing legal representation
as this vindicates the idea of equality before the law.23
When one refuses legal representation, one cannot expect to receive a higher "standard"
of natural justice. This was enunciated in Singapore in Ho Paul v. Singapore Medical
Council (2008). Dr. Ho, who had been charged with professional misconduct, chose to
appear before the Council in person and declined to cross-examine the Council's key
witness. Subsequently, he argued that he should have been warned of the legal
implications of not being legally represented. The High Court rejected this argument and
held he had suffered no prejudice. Dr. Ho had been given a fair opportunity of presenting
his own case and, most importantly, had not been deprived of his right to cross-examine
the witnesses.
It is also not a court's obligation to provide assistance when a party presents his or her
case without legal representation. In Rajeevan Edakalavan v. Public Prosecutor (1998),24
the accused had appeared in person before a magistrate and had entered a plea of guilt.
He later petitioned the High Court for criminal revision, arguing that as the magistrate
had not informed him of the defences available to him, his plea had been equivocal. The
Court held:
The onus [of informing the accused of his defence options or what could be
more advantageous to his case] does not shift to the judge (or the Prosecution, for
23
24

Doresamy v. Public Services Commission [1971] 2 M.L.J.


Rajeevan Edakalavan v. Public Prosecutor [1998] 1 S.L.R.(R.) 10, H.C. (Singapore)

Natural Justice: An Effective Mechanism to Diminish Arbitrary Exercise of Discretionary Power

10

that matter) simply because the accused is unrepresented. That will be placing too
onerous a burden on the judge. Furthermore, the judge will be performing two
completely incompatible and irreconcilable roles one as the adjudicator, the
other as the de facto defence counsel.
In Singapore, the right to legal representation is contingent on the nature of the inquiry.
However, since Article 12 of the Constitution of Singapore guarantees equal protection
under the law, it has been suggested that greater weightage should be accorded to this
procedural right when balancing it against the competing demand of efficiency.
The decision and reasons for it
Currently, the principles of natural justice in the United Kingdom and certain other
jurisdictions do not include a general rule that reasons should be given for decisions. In
R. v. Northumberland Compensation Appeal Tribunal, ex parte Shaw (1951), Denning
L.J. stated:
"I think the record must contain at least the document which initiates the
proceedings; the pleadings, if any; and the adjudication; but not the evidence, nor
the reasons, unless the tribunal chooses to incorporate them. If the tribunal does
state its reasons, and those reasons are wrong in law, certiorari lies to quash the
decision."
It has been stated that "no single factor has inhibited the development of English
administrative law as seriously as the absence of any general obligation upon public
authorities to give reasons for their decisions".25

25

Keith Frank Goodfellow (1971), Administration under Law: A Report by JUSTICE, London

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11

2.2. Rule Against Bias


2.2.1. At a Glance

I.
II.

If a person has preconceived opinions or personal involvement in a matter they


should not attempt to settle it.
A conciliator previously involved in trying to resolve a matter should not sit on
a panel hearing the complaint.Conciliators are charged with the task of
assisting both parties to settle complaints amicably .... there must be a full, fair
and detached assessment of the strengths and weaknesses of both sides and
of the possible remedies. 26

Foremost rules and procedures to be followed by any person or body charged with the
duty of adjudicating upon disputes:
1. Act fairly:
I.
II.
III.

in good faith
without bias
and in a judicial temper

2. Give each party the opportunity to state their case adequately:


I.
II.

to correct or contradict any statement prejudicial to their case


to not hear one side in the absence of the other

3. Not to act in your own cause - declare any interest


4. Gain full knowledge of the accusations
5. Ensure relevant documents used in judgment of a case are disclosed to both
parties
2.2.2. Scope of the Rule against Bias

A person is barred from deciding any case in which he or she may be, or may fairly be
suspected to be, biased. This principle embodies the basic concept of impartiality, 27 and
applies to courts of law, tribunals, arbitrators and all those having the duty to act
judicially.28 A public authority has a duty to act judicially whenever it makes decisions
26

Einfield J in his judgment in Hall & Ors v Shaban & Anor (1988) EOC 92-227 (At pp 77,
142
27
28

Surinder Singh Kanda v. Government of the Federation of Malaya [1962] UKPC 2


Lord Mackay of Clashfern, ed.-in-chief (2010)

Natural Justice: An Effective Mechanism to Diminish Arbitrary Exercise of Discretionary Power

12

that affect people's rights or interests, and not only when it applies some judicial-type
procedure in arriving at decisions.
The basis on which impartiality operates is the need to maintain public confidence in the
legal system. The erosion of public confidence undermines the nobility of the legal
system, and leads to ensuing chaos.29 The essence of the need for impartiality was
observed by Lord Denning, the Master of the Rolls, in Metropolitan Properties Co.
(F.G.C.) Ltd. v. Lannon (1968):30
"Justice must be rooted in confidence and confidence is destroyed when rightminded people go away thinking: 'The judge was biased."31
Public confidence as the basis for the rule against bias is also embodied in the oftenquoted words of Lord Hewart, the Lord Chief Justice of England and Wales, that
"[i]t is not merely of some importance, but of fundamental importance that justice
should not only be done, but should manifestly be seen to be done".32
2.2.3. Forms of bias

Actual and imputed bias


A portrait of the Lord Chancellor, Lord Cottenham (Charles Pepys, 1st Earl of
Cottenham, 17811851), by Charles Robert Leslie. In Dimes v. Grand Junction Canal
Proprietors (1852), his Lordship was disqualified from hearing a case as he had a
pecuniary interest in the outcome.

29

Tang Kin Hwa v. Traditional Chinese Medicine Practitioners Board [2005] 4 SLR
Metropolitan Properties Co. (F.G.C.) Ltd. v. Lannon [1968] EWCA Civ 5
31
Metrpolitan Properties, p. 599
32
R. v. Sussex Justices, ex parte McCarthy [1924] 1 K.B. 256 at 259, High court (Kings Bench)
30

Natural Justice: An Effective Mechanism to Diminish Arbitrary Exercise of Discretionary Power

13

Bias may be actual, imputed or apparent. Actual bias is established where it is actually
established that a decision-maker was prejudiced in favour of or against a party.
However, in practice, the making of such an allegation is rare as it is very hard to prove.33
One form of imputed bias is based on the decision-maker being a party to a suit, or
having a pecuniary or proprietary interest in the outcome of the decision. Once this fact
has been established, the bias is irrebuttable and disqualification is automatic the
decision-maker will be barred from adjudicating the matter without the need for any
investigation into the likelihood or suspicion of bias.34
A classic case is Dimes v. Grand Junction Canal Proprietors (1852), which involved an
action between Dimes, a local landowner, and the proprietors of the Grand Junction
Canal, in which the Lord Chancellor, Lord Cottenham, had affirmed decrees made to the
proprietors. However, it was discovered by Dimes that Lord Cottenham in fact owned
several pounds worth of shares in the Grand Junction Canal. This eventually led to the
judge being disqualified from deciding the case. There was no inquiry as to whether a
reasonable person would consider Lord Cottenham to be biased, or as to the
circumstances which led Lord Cottenham to hear the case.
In certain limited situations, bias can also be imputed when the decision-maker's interest
in the decision is not pecuniary but personal. This was established in the unprecedented
case of R. v. Bow Street Metropolitan Stipendiary Magistrate, ex parte Pinochet Ugarte
(No. 2) (1999).35 In an appeal to the House of Lords, the Crown Prosecution Service
sought to overturn a quashing order made by the Divisional Court regarding extradition
warrants made against the ex-Chilean dictator, Senator Augusto Pinochet. Amnesty
International (AI) was given leave to intervene in the proceedings. However, one of the
judges of the case, Lord Hoffmann, was a director and chairperson of Amnesty
International Charity Ltd. (AICL), a company under the control of AI. He was eventually
33

Chee Siok Chin v. Attorney-General [2006] SGHC 153


Dimes v. Grand Junction Canal Properties (1852) 3 H.L. Cas. 759, 10 E.R. 301, House of Lords (UK)
35
UKHL 1
34

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14

disqualified from the case and the outcome of the proceedings set aside. The House of
Lords held that the close connection between AICL and AI presented Lord Hoffmann with
an interest in the outcome of the litigation.
Even though it was non-pecuniary, the Law Lords took the view that the interest was
sufficient to warrant Lord Hoffmann's automatic disqualification from hearing the case.
In Locabail (U.K.) Ltd. v. Bayfield Properties Ltd. (1999),36 the Court of Appeal warned
against any further extension of the automatic disqualification rule, "unless plainly
required to give effect to the important underlying principles upon which the rule is
based".37
Apparent bias
Apparent bias is present where a judge or other decision-maker is not a party to a matter
and does not have an interest in its outcome, but through his or her conduct or behaviour
gives rise to a suspicion that he or she is not impartial.38
Effect of a finding of bias
In Dimes, the judges advised the House of Lords that Lord Cottenham's pecuniary
interest made his judgment not void, but voidable. This advice is not wrong in the context
of a judicial act under review, where the judgment will be held valid unless reversed on
appeal.39
However, in the cases of administrative acts or decisions under judicial review, the court
can only intervene on the grounds of ultra vires,40 hence making the judgment void. Lord
Esher said in Allison v. General Council of Medical Education and Registration (1894)41
36

Locabail (UK) Ltd. v. Bayfield Properties Ltd. (1999) EWCA Civ 3004
Locabil, p. 465
38
Ex parte Pinochet, pp. 132-133
39
F. Forsyth (2009), Administrative Law (10th ed.), Oxford; New York
40
Wade & Forsyth, p. 401.
41
Allison v. General Council of Medical Education and Registration [1894] 1 Q.B. 750
37

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15

that the participation of a disqualified person "certainly rendered the decision wholly
void".42
Some cases decided in India shed further light on the issue of bias. It is well settled that
as regards pecuniary interest, the slightest trace will disqualify any person from acting as
a judge. The Supreme Court of India in Secretary to Government Transport Department
vs. Munuswamy, 1988 (Suppl) SCC 651 (AIR 1988 SC 2232), held that a predisposition
to decide for or against one party without proper regard to the true merits of the dispute is
bias.
The Supreme Court of India in International Airport Authority vs. K. D. Bali AIR 1988
Supreme Court 1099 observed, "the purity of administration requires that the party to the
proceedings should not have apprehension that the authority is biased and is likely to
decide against the party. But it is not every suspicion felt by a party which must lead to
the conclusion that the authority hearing the proceedings is biased. The apprehension
must be judged from a healthy, reasonable and average point of view and not on mere
apprehension of a whimsical person.
The Supreme Court of India in Ashok Kumar Yadav vs. State of Haryana AIR 1987 SC
454 observed, 'It is one of the fundamental principles of our jurisprudence that no man
can be a judge in his own cause and that if there is a reasonable likelihood of bias it is in
accordance with natural justice and commonsense that the justice likely to be so biased
should be incapacitated from sitting.'
The question is not whether the judge is actually biased or decides partially, but whether
there is a real likelihood of bias.

42

Allison, p. 757.

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16

3. Application of Natural Justice in Administrative Law


3.1. General instances
In the regulation of Trade and Commerce Generally, where a persons right to carry on
trade and commerce is restricted, it is necessary that the administration should give a fair
hearing and apply natural justice to the affected persons case.43
Licensing-

Licensing is a common administrative technique used to regulate any

activity. Cancellation of a license is a quasi- judicial activity because it involves civil as


well as pecuniary consequences as the licensee cannot carry on his business without a
license. Therefore, officially principles of Natural Justice cannot be applied in the process
of cancelling a license.44 However, the refusal to grant a license or suspension of license
before actually cancelling it is an administrative function and principles of natural justice
should be applied in these cases.45
In the taking over of management of an undertaking- If the government, after an
investigation finds out that the management of a public undertaking is being managed by
inefficient persons and in such manner which is detrimental to public interest, the
government may take over the management in its hands. However, in this case it has to
adhere to the principles of natural justice.46

43

Swadeshi Cotton Mills v. Union of India, AIR 1981 SC 818 at 832.

44

North Bihar Agency v. State of Bihar, AIR 1981 SC 1758

45

Krishnagopal Dutta v. Regional Transport Authority, Burdawan, AIR 1970 Cal 104

46

Supra, n.1. 8

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Miscellaneous Situations
Powers of search and seizure- The powers of search and seizure are extraordinary
powers in the hands of the state for the protection of social security47 which is of an
extreme nature and constitutes a serious invasion of the privacy, reputation, business and
freedom of the affected person. Although the power of search may not take into
consideration the natural justice, the power of seizure cannot afford to ignore natural
justice. Similarly, the power of confiscation cannot be exercised without the affected
party being given an opportunity of being heard.48
Discretionary powers- Discretionary powers are subject to control and fair hearing
before the decision-making bodies and they may act as a control mechanism on the
decision-making powers. However, discretionary action may comprise of dominant
element, such as, a major administrative policy, economic or any threat to the community
which may negate the idea of fair hearing.49
Supersession of Statutory bodies and Municipal Corporations- The principle of
natural justice must be observed when the government suspends bodies, such as
panchayats,50 or when it appoints an administrator for a registered society in public
interest.51 The government will also allow natural justice when it decides to supercedes a
municipal corporation.

47

M P Sharma v, Satish Chandra, District Magistrate Delhi, AIR 1954 SC 300.

48

Assistant Collector of Customs and Superintendent, Preventive Service Customs, Calcutta v. Charan

Das Malhotra, AIR 1972 SC 689.


49

Sadhu Singh v. Delhi Administration, AIR 1966 SC 91.

50

T V R V Radhakrishnan Chettiar v. State of Tamil Nadu, AIR 1974 SC 1862.

51

Jathedar Jagdev Singh v. State of Punjab, AIR 1982 P & H 16.

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Government Contracts- When the government is under contract with a private party and
where the action has statutory basis, the principles of natural justice is applicable.52
Blacklisting- Under a modern administrative technique, a person is blacklisted for the
purpose of disqualifying him for certain purposes and after which he is not eligible to
deal with the concerned authority of the area.53 Blacklisting is an oppressive instrument
which is characterised by both legal and constitutional impropriety. However, before a
person is blacklisted, he eligible of a fair hearing against the proposed action.54
Right to Property- A person whose property rights are adversely affected by any
administrative action is entitled to natural justice. Before passing orders to demolish a
house, the concerned administrative authorities must give the occupant a show cause
against such orders.55
Similarly, in cases of land acquisition by the government for public purposes, the
collector, who is responsible for holding an inquiry and then submitting his report to the
government, must follow the principles of natural justice.56
Withdrawal of benefits- When the government withdraws a benefit conferred by it on a
person, the person is entitled to a fair and just hearing. The government must also follow
natural justice principle when an ex gratia benefit already sanctioned in to be
withdrawn.57

52

State of Haryana v. Ram Kishan, AIR 1988 SC 1301.


Wade, CONSTITUTIONAL FUNDAMENTALS 1980 p.55.
54
Erusian Equipment and Chemicals Ltd v. State of West Bengal, AIR 1975 SC 266.
55
Pratap V. Soni v. Gandhidham Development Authority, AIR 1985 Guj 68.
53

56
57

Under the Land Acquisition Act, 1894, s 6.


G Ramasubbu Pillai v. Government of India, AIR 1980 Mad 23.

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3.2. Specific Instances


Disciplinary Action
Against students- Before a student faces disciplinary action, such as expulsion from the
institution, or cancelling of his examination results, he is entitled to fair hearing on the
principles of natural justice by the authorities concerned.58 However, in cases where a
student is expelled from the educational institution on the grounds of academics, the case
is different and he is not entitled to natural justice.59
Against employees of Public Authorities- For dismissing and terminating the service
of an employee who is employed under a public authority, a hearing must be given to the
affected person.60 In specific cases where service conditions of employees are governed
by statutory provisions, the natural justice provisions must be read into the statute in the
case of termination of the employment. If there are no statutory provisions to govern the
service conditions of employees, still natural justice should be observed while taking
disciplinary action against them.61
Against Government servants- A civil servant of the government cannot be dismissed
or removed in rank unless an inquiry is held and in which he is informed of the charges
against him. He is also entitled to a reasonable opportunity to being heard according to
the natural justice provisions.62 It should also be mentioned that any government action,
other than dismissal, removal or reduction in rank, affecting the government employee is
also subject to natural justice principles.63
58

Board of High school and Intermediate Education, Uttar Pradesh Allahabad v. Ghanshayam AIR 1962
SC 1110.
59
Jawaharlal Nehru University v. B S Narwal, AIR 1980 SC 1666. 10
60
Jagdish Pandey v. Chancellor, University of Bihar, AIR 1968 SC 353.
61
Managing Director, Uttar Pradesh Warehousing Corporation v. Vijay Narayan Vajpayee, AIR 1980 SC
840.
62

Arjun Chaubey v. Union of India, AIR 1984 SC 1356.

63

Gajanan L. Pernekar v. State of Goa, AIR 1999 SC 3262.

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Against Pensioners- When a civil servant retires from service, he is entitled to receive
pension. The government cannot reduce or withhold the pension of the person without
giving the pensioner an opportunity to make his defense.64 Similarly, the gratuity payable
to a person upon retirement cannot be reduced without giving the employee a reasonable
opportunity to be heard.65
3.3. Miscellaneous situations
There are certain situations where a fair hearing is given to the person concerned either
by characterising the functions discharged by them as quasi-judicial or without
characterising the functions as quasi-judicial, but holding in each case the principles of
natural justice. They include(a) termination of citizenship of a citizen on the ground that he has acquired the
citizenship of another country66
(b) when a cooperative society applies for winding up process
(c) passing, an order of forfeiture of past service of a government employee for
participation in an illegal strike.67
(d) impositions of damages by a commissioner for failure to deposit provident fund by
the employer68
(e) withdrawing protection granted to a tenant against eviction under a statute
(f) deletion of name from the electoral roll69

64

State of Punjab v. K R Erry, AIR 1973 SC 834.

65

Union of India v. G. Gangayutham, AIR 1997 SC 3387. 11


Mohd Ayub Khan v. Comr of Police, Madras, AIR 1965 SC 1623.

66

67

Shiv Shankar v. Union of India, AIR 1985 SC 514.

68

Organo Chemical Industries v. Union of India, AIR 1979 SC 1803.


Lal Babu Hussain v. Electoral Registration Officer, AIR 1995 SC 1189.

69

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Natural justice is not only observed in cases where statutory power is being exercised,
but also in cases which involves civil consequences to a person70

4. Application of Natural Justice in Bangladesh


4.1. The Constitution
In Bangladesh the enforcement principles of natural justice are ensured by several
provisions of our constitution. Article 27 of the Constitution of Bangladesh states 'all
citizens are equal before law and are entitled to equal protection of law'.71 Further Art.
135(2) of the Constitution provides, no person who holds any civil post in the service of
Republic shall be dismissed, removed or reduced in rank until he has been given a
reasonable opportunity of showing cause why action should not be taken.
4.2. The Case Laws
The superior courts of Bangladesh, most notably the Honourable High Court Division,
have consistently refused to hear matters which may remotely give rise to any conflict of
interest by either being embarrassed to hear the matter or by referring the matter to some
other competent bench. This approach of the court is undoubtedly commendable and will
help strengthen public confidence in the judiciary. However, recently there have been
some cases in the High Court Division which appear to have not strictly adhered to this
age-old cardinal principle of law.
1. The principles of natural justice are inherent in every society aspiring for a
civilised living. It further observes that according to the third paragraph of the
Preamble of the Constitution, the fundamental aim of the State is a society in
which the rule of law, the fundamental human rights and freedom, equality and
justice, political, economic and social shall be secured. To treat a person in
70

Apeejay (Pvt) Ltd. V. Union of India, AIR 1978 Cal 577.

71

Article 27 of the Constitution of the Peoples Republic of Bangladesh

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violation of the principles of natural justice would amount to arbitrariness and


discriminatory treatment in violation of the right guaranteed by Article 27 of the
constitution. 72
2. The rules of natural justice require an adjudicator to act fairly, in good faith and
without bias or conflict of interest. They also require an adjudicator to allow each
party adequate opportunity to present its case and respond to its opposition's case.
The essential feature of the principles of natural justice is that no person should be
deprived of his right without a hearing before an independent authority its
purpose is to prevent miscarriage of justice. 73
3. The words "failure of justice" is not justice in the abstract or moral sense nor even
justice according to natural law. Its content has not as yet been correctly
determined nor is it capable of such precise definition. To constitute a denial of
natural justice there must be a violation of some fundamental principle of law or
procedure of such importance that it would shock the conscience of the court and
it would consider it to be a Case where the substance of a fair trial had been
denied.74
4. Denial of natural justice would be inferred where a person sought to be
condemned or to be adversely affected is not given any opportunity of being heard
in his defence or where the judge himself is interested in the matter by reason of
some pecuniary or other interest or where there has been such other flagrant
disregard of procedure.75
5. Section 9(2) of the Public Servants (Retirement) Act, 1974 (hereinafter referred to
as the Act) has no guidelines for its appreciation and violates the principles of
Natural Justice; the authority has issued the impugned order compulsorily retiring

72

Abdul Latif Mirza Vs. Bangladesh 31 DLR (AD) 33


B. S. Agents vs. Bangladesh (1979) 31 DLR (AD) 272
74
Bharat Tewari vs. N. Hossain (1958) 10DLR 481; (1959) 11 PLR 276
73

75

Bharat Tewari vs. N. Hossain (1958) 10 DLR 481; (1959) 11 PLR 276

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the petitioner by exercising their power under the said statute in a capricious and
discriminatory manner which is a clear case of "fraud on power".76
6. Without initiating any proceeding or even without issuing any notice the action
impugned against was taken by the respondent No.-1 which is certainly in
violalion of principle of natural justice and also flouts the provision of Article 40
of the Constitution by which right to trade, business and profession of a citizen
have been guaranteed. For that reason as the matter is related with the
interpretation of violation of principle of natural justice and different Articles of
the Constitution in particular Article 40, this writ petition is maintainable even
without exhausting the provision of appeal envisaged under rule 22 of the Customs
Agent Licensing Rules, 1986........... Chapter 17 of the Customs Act deals with the
provision relating to offences and penalties, While dealing with the offences and
penalty in accordance with the different provisions of the said Chapter principle of
natural justice must be observed in the procedure of departmental or judicial, for
trial of Customs offences, This principle is certainly applicable as well upon the
rules framed under Customs Agent Licensing Rules, 1986, These are a clear nexus
between the two which is palpable.77
7. Principle of Natural Justice : High Court Division made adverse remark against
the petitioner without affording her any opportunity to explain her position.
Adverse remarks are required to be expunged for ends of justice.78
8. Adverse Remarks Before making observations and giving directions High Court
Division acted illegally in not giving any notice to the appellants which is a gross
violation of the principle of natural justice and consequently, the remarks should
be expunged.79

76

AKM Mazharul Haq Chowdhury vs. Bangladesh


Saint Martin Commodities Limited vs. Chairman & Joint Commissioner, Licensing Authority Customs
House
78
Jesmin Anwar vs. State and anothers 2012 AD
79
Rajib Kamrul Hasan vs. State 2001 AD
77

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9. If the summons are not duly served on the defendant, that is a good ground for
setting aside an exparte decree under Order 9, Rule 13 of the CPC. In such a case
question of knowledge is not at all relevant and exparte decree will be set aside
even if the defendant had knowledge of institution of suit.80

5. Natural Justice as Mechanism to Diminish Arbitrary Discretion


Discretion is individual judgment, the power of free decision-making. A public officials
power or right to act in certain circumstances according to personal judgment and
conscience, often in an official or representative capacity. In administrative law, it
denotes a public officials or agencys power to exercise judgment in the discharge of its
duties. Abuse of discretion may result from an adjudicators failure to exercise sound,
reasonable, and legal decision-making. And the discretion is arbitrary when it depends on
individuals discretion; specifically determined by a judge rather than by fixed rules,
procedures or law. Arbitrary discretion ensues when it is founded on prejudice or
preference rather than on reason or fact.81
Natural justice acts an effective check on the arbitrary exercise of the discretionary power
of any adjudicating authority. There are many instances throughout the global legal
system where principle of natural justice creates hindrance upon arbitrary exercise of
discretionary power. In 1971 Lord Denning82 rightly pointed out that,
It is now well-settled that a statutory body which is entrusted by statute with a
discretion, must act fairly. It does not matter whether its functions are described
as judicial or quasi-judicial... or administrative... it must, in proper cases give a
party a chance to be heard.

80

Md. Abdur Rashid & another vs. Abdul Barik and others, 1984 BLD (AD) 83
BLACKs Law Dictionary
82
Breen p. Amalgamated Engineering Union [19711 1 All E.R. 1148
81

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5.1. Discretion cannot Undermine Natural Justice


The mere fact that a decision-maker is conferred wide discretion by law is not reason
enough for a weakening of the requirements of natural justice. In the United Kingdom
context, this is demonstrated by Ahmed v. H.M. Treasury (No. 1) (2010). The Treasury
had exercised powers to freeze the appellants' financial assets and economic resources on
the ground that it reasonably suspected the appellants were or might be persons who had
committed, attempted to commit, participated in or facilitated the commission of
terrorism, pursuant to the Terrorism (United Nations Measures) Order 2006 and the AlQaida and Taliban (United Nations Measures) Order 2006 made under the United
Nations Act 1946. The Supreme Court of the United Kingdom held that since the AlQaida Order made no provision for basic procedural fairness, it effectively deprived
people designated under the order the fundamental right of access to a judicial remedy
and hence was ultra vires the power conferred by the United Nations Act 1946 for the
making of the Order.83
5.2. Discretion must be Reasonable
The exercise of discretionary power is required also to be reasonable. De Smith says:
The authority in which discretionary power is vested can be compelled to
exercise that discretion but not to exercise it in any particular manner. In general
a discretion must be exercised only by the authority to which it is committed. That
authority must genuinely address itself to the matter before it; it must not act
under dictation of another body or disable itself from exercising a discretion in
each individual case. In the purported exercise of its discretion it must not do what
it has been forbidden to do nor must it do what it has not been authorised to do. It
must act in good faith, must have regard to all relevant considerations, must not

83

Ahmed, p. 685, para 246, per Lord Mance J.S.C.

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seek to promote purposes alien to the latter or to the spirit of the legislature that
gave it power.., and must not act ARBITRARILY AND CAPRICIOUSLY.84
When it is said that a discretionary power has been exercised arbitrarily or unreasonably
it means that the purported action is

irrational, foolish, unwise, absurd, silly,

preposterous, senseless, stupid, injudicious, nonsensical.85


In Prescott v. Birmingham Corp.86 a corporation was given powers to maintain and
operate a transport system and to charge such fares as it thought fit. It decided to provide
free traveling facilities for women over 65 and men over 70 years. The court of appeal
held that the action was unreasonable because it was economically stupid.

6. Conclusion
The principle of natural justice has developed into a universal jurisprudence for a number
of good reasons. Firstly, the age-old principle has been applied to administrative and
adjudication process to ensure procedural fairness and to free them from arbitrariness.
Secondly, application of this principle helps bolster public confidence in the judiciary by
ensuring that no one having any interest or bias in respect or any matter takes part in the
decision-making relating to that matter. Thirdly, it is often said that it 'is of fundamental
importance that justice should not only be done, but should manifestly and undoubtedly
seen to be done'. By ensuring that the judge is not interested in the outcome of any
adjudication, the parties can 'see' that justice is being done to their cause. In this regard, it
should be noted that whether a judge gave an actually biased judgment by judging his
own cause is not material; the judgment is vitiated if there is a real likelihood of the judge
being biased, which can be easily presumed if the judge himself is the aggrieved party.
The development of this principle helps control arbitrary exercise of discretionary power
of adjudicating authorities almost all over the world.
84

de Smith, op. cit. pp. 252-253. For a fuller discussion on the topic see p. 246 - 31.
Southern Kansas State Lines Co. V. PCS, (1932) 135 KANS, 657
86
[1954] 3 AII E.R. 698;
85

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