know the concept of audi alteram partem
know the concept of audi alteram partem

know the Concept of Audi Alteram Partem

Introduction 

Natural justice is a fundamental right of every person, which is not possible without an equal legal framework. The Audi alteram partem concept is a base of natural and equal justice. It is only possible when both parties are heard.

There is no chance of ​fair justice without hearing the other side. The main base of Audi alteram partem is to hear the other side. In this way, both parties have an opportunity to present their side so fair justice can be given to both of them. In this article, we discuss the meaning, essential elements, exceptions, etc., in detail

Meaning of Audi alteram partem

According to Wikipedia, the Audi alteram partem is a Latin phrase that means “listen to the other side” or “let the other side be heard as well”. It is based on the principle that no one can judge without a fair hearing. Every party should be given an opportunity to react to the evidence which is presented against them. [1].

The Audi alteram partem is concerned with the principle of natural justice for the legal system. In this way, that maxim provides the legal right of a party and his lawyer to defend against evidence given by the opposite party. That is also given an opportunity to the party to present his witness and evidence before the court to take a fair legal defence.  

The Audi alteram partem is applied in the administrative section in the legal system. This maxim aims to give natural and fair justice to the person who is the affected party in the court of law.

Natural justice is the foundation of common law that covers all essentials of natural justice like fairness, reasonable, and equality. When we talk about the principle in India, the Indian constitution act Article 14 and 21 has defined that principle of natural justice.

What is Audi alteram partem in law?

The Latin maxim Audi alteram partem is based on the rule of the common law regarding the judicial function, which is that both parties must hear every case. It not only applies to the applicant, plaintiff or petitioner, but this rule also applies to the defendant that he has the right to present his witness and evidence to take appropriate defence from his side. This rule protects the legal right of another party if it is prejudiced by the act of applicant, petitioner, or prosecution. 

What is the Audi partem rule?

The rule of Audi alteram partem is that no one can be punished without allowing hearing from his side. There should be notified before taking action against him as well he must be heard so he can take appropriate defence with his witness and evidence from his side.

What are the three principles of natural justice?

The main three principles of natural justice in Latin are Nemo Judex in Causa Sua, Audi Alteram Partem, Reasoned Decision. Let’s explain in simple words; there should be an appropriate notice from another party of the case, the hearing must be fair and equal with both parties, and the third one is there should be no bias between the parties of the case.

What is the effect of the violation of the rule of Audi Alteram Partem?

In case if the Audi alteram rule is violated by the court, the decision on that basis becomes null and void. That rule must be followed before taking action against the party of the case. As the aim of that rule, another party not only must be heard, but he must have a chance to present his witness and evidence for his defensive purpose.

What are the Essential elements of Audi Alteram Partem?

The following elements are included in this maxim which is given below;

Notice 

Before taking action against the affected party, the notice must be served to him. The notice informs the party what cause is made against him, which is necessary before taking action against him. If without serving notice, an order passed that is the violence of the principle of natural justice, and such order becomes null and void.

Every affected party has the right to know about the case which is made against him before the start hearing the party should be noticed. That mention a particular date, time, place of hearing, there should also mention the legal jurisdiction where the case or suit is the file, and what charges or allegation is made against that person. In short, we can say that every case began with a notice.

To serve notice is an essential part of every case; however, if due to any reason, notice not send in a proper method, that act is count as the void in the eye of law. Here is one thing we should know that non-serve notice or defective service notice is against the principle of natural justice.

Hearing

Hearing is also an essential element of the Audi alteram partem rule; here, hearing is not only one-sided, but that should be fair. The order might be considered null and void passed by any authority without providing an opportunity to the party of the case and that must be liable to set aside. 

The fair hearing may be in any form, like written or oral, that depends on the nature of the case or discretionary power of authority. But the authority must have provides an opportunity before taking action in the case. This rule ensures that the affected party must be heard and the authority has given the appropriate opportunity to be heard.

Evidence

Evidence is a necessary and crucial part brought on the record of court by both parties. On that basis, the court can decide the case fairly and without prejudice to the legal defense of the case’s parties. The authority must have considered and act upon the evidence which is present by the party. That evidence may be in oral or documentary form. The authority must give a chance to the affected party to rebut the evidence if they do not consider it.

The authority is duty-bound to receive appropriate evidence from the litigation party; such evidence can not be taken from behind the other party’s back. Suppose the authority gets that evidence behind the back of another party, then it should be made available to the other party, and the authority has to allow the other party to rebut such evidence.

Cross-Examination

The authority must be given the opportunity to party whom the evidence is received against on record. Here one question comes to the authority that can every witness be cross-examined?

In the case of Kanungo & Co. vs. Collector of Customs, (AIR 1972 SC 2136), the supreme court held, the customs authority seizes goods under the sea customs act, there is no allow an informer how to inform the customs authority. The court rightly observed that there is no violence of natural justice if the person is not allowed to cross-examine the witness in the case of seizure of goods under the Sea Customs Act.[2].

In the case of J.J Mody vs. State of Bombay,( AIR 1962 Guj 197), the court held that it is not necessary for the party who was involved in the case to be able to understand the rule of law and that not allowing him legal representation resulted to the violence of natural justice, they should give an opportunity to hear again.[3].

Exceptions To Audi Alteram Partem

This maxim is not covered in some particular cases. The rule of Audi alteram partem is the foundation of natural justice. That’s why the word exception is a misnomer. However, in some cases, this rule becomes inapplicable not on the ground of fair trial, but that accept based on the urgency of the situation and make the balance to the competing of hurry and hearing.

Statutory exclusion

It is true that the court implies the theory of principles of natural justice. But there is no straitjacket formula to apply that absolute rule to every case. Applying the principles of natural justice by the court, there must be solid grounds for it to be implemented. 

If the said exception is the absence of the right to a defence, that type of case is covered in the ‘useless formality theory,’ which is propounded by the Supreme Court.

Legislative function

In some of the cases, it happened that the hearing may not be possible. Generally, the administrative activity is the best example of that. Such action is being done in general nature. That’s why that kind of activity is not covered under the guideline of natural justice because these kinds of activities are done without referring to any specific person.

Impracticality

The rule of Audi alteram partem is based on equity, equality, and natural justice; that may imply practically. That rule can be excluded if it is not applied in terms of practicality.

In Bihar School Examination Board v. Subhas Chandra Sinha, (1970 AIR 1269), the supreme court rightly observed that “”If it is not a question of charging anyone individually with unfair means but to condemn the examination as ineffective for the purpose it was held, must the Board give an opportunity to all the candidates to represent their case ? We think not. It was not necessary for the Board to give an opportunity to the candidates if the examinations as a whole were being canceled. The Board had not charged anyone with unfair means so that he could claim to defend himself. The examination was vitiated by the adoption of unfair means on a mass scale.In these circumstances, it would be wrong to insist that the Board must hold a detailed inquiry into the matter and examine each individual case to satisfy itself which of the candidate’s case to satisfy which of the candidates had not adopted unfair means. The examination as a whole had to go.”[4].

Academic Evaluation

The rule of Audi alteram partem does not attract if the nature of authority is done correctly as an administrative function. There is no right to a hearing claim by the party.

Inter-Disciplinary Action

This rule can not be attracted if the authority purely performs its part and takes action like interdisciplinary as suspension. In those cases, the authority does not need to follow the principle of natural justice.

Audi alteram partem case law

In Maneka Gandhi vs. The Union of India, (1978 AIR 597), the Supreme court held that the principle of Audi Alteram Partem is the foundation of the natural justice principle. Fair, just, and reasonable laws and procedures are required for everyone. When no prejudice is caused to anyone as a result of any administrative action, the principle of natural justice applies. This principle maintains that no one should be sentenced without first being heard, and it guarantees both parties a fair hearing and equal justice. Without hearing all parties, no conclusion can be made. Equal rights to self-defense are granted to both sides.[5].

In R. C. Verma v. R. D. Verma, (AIR 1958 All 532), the Allahabad High Court, held,it is true that in the departmental trials the petitioner is not entitled to claim as a matter of right facility for legal advice, but the refusal to afford a reasonable opportunity to take the legal advice when viewed in the light of other circumstances may legitimately lead to the inference that the petitioner was not given a reasonable opportunity.[6].

Reference

(1)  Wikipedia

(2) Kanungo & Co. v. Collector of Customs, (AIR 1972 SC 2136).

(3) J.J Mody v State of Bombay,( AIR 1962 Guj 197).

(4) Bihar School Examination Board v. Subhas Chandra Sinha, (1970 AIR 1269).

(5) Maneka Gandhi vs. The Union of India, (1978 AIR 597).

(6) R. C. Verma v. R. D. Verma, (AIR 1958 All 532).

About Sandeep Bhatt

Check Also

Difference between goods and services

What is the distinction that makes a difference between goods and services?

Introduction Goods and services play important roles in the growth of the business economy, both …

Leave a Reply

Your email address will not be published. Required fields are marked *