LAWS FOR BUSINESS

ASSIGNMENT-1
The principles of natural justice are two fundamental principles widely held to
be legally necessary to a fair trial or valid decision in a legal system. These are:

1. nemo iudex in causa sua: "nobody shall be a judge in his own cause",
invalidating any judgment where there is a bias or conflict of interest or
duty; and
2. audi alteram partem: "hear the other side", giving at least a fair
opportunity to present one's case (which may, for example, require
access to counsel).
The use of the term “Natural Justice” in the judicial context is very important
and frequent. Although there is an adjective “natural” qualifying the noun
“justice”, the concept has nothing to do with laws of nature which rather runs
counter to it. With the advancement of the civilization our lives started to be
dominated more by the rules of law, rather than law of nature.

The supreme and sovereign power of the state to make to make laws through the
organ of legislatures is one of the essential features of a democratic
establishment and the laws enacted by the legislatures are liable to be used
arbitrarily in the absence of a well-laid down procedure for its application and
administration. The principle of natural justice goes a long way to remedy the
situation arising out of the departure from this established procedure.

The principles of natural justice have their roots in two Latin maxims:”Audi
alteram partem” and “nemo judex in causa sua”.The first one translated into
English means that a person who has charged, must be heard before any is
decision is taken and the second maxim means that a person will not judge a
matter in which he is interested. In recent times another principle has come into
existence and followed by the judiciary is that a judgement should be a speaking
one which means it should state the reasons behind arriving at a particular
decision.

The principle of natural justice over the decades evolved all over the world
which has its genesis in the common law in England. The common law was a
set of unwritten laws which existed in the form of usages and conventions and
adopted subsequently as laws. The Common Wealth group of countries, USA,
Australia, Canada and other countries drew heavily on this source of common
laws while framing their laws. In India the application of this principle is found
not only in matters as respects governance but includes a broad spectrum of
activities such trade, commerce, industry etc.

As has been explained that the it is rule of law which principally guides this
concept and the rule of law ensures in arriving at decisions in a fair and just
manner. The principles are contained in the act itself. There are certain
procedural prescriptions in the Civil Procedure Code which mention various
rights of the parties in dispute viz., the right to reply, the right to cross-examine
witnesses, inspection of evidences and documents submitted by the respective
parties etc. which are all basic rights and any judgement arrived at by violating
these rights would broadly come under the purview of natural justice and may
be struck down by the appropriate judicial authorities.

There are certain quasi-judicial authorities like tribunals and commissions

which exercise authority of a quasi judicial authority and these authorities must
follow the principles of natural justice to ensure fairness in their decisions. Any
decision which infringes upon the principles may be set aside by the superior
judicial authorities. The rights enjoined by these principles are the right to be
heard impartially; the right to have the notice of the offence and the right to
respond to the charge. These are procedural safeguards to ensure dispensation of
justice in a fair manner.

 Natural Justice is another name of commonsense Justice.

 Rules of Natural Justice are not codified canons.
 But they are principles ingrained into the conscience of man.
 Natural Justice is the administration of Justice in a commonsense liberal
way.
 Justice is based substantially on natural Justice is based substantially on
natural ideals and human values.
 The administration of Justice is to be freed from the narrow and restricted
considerations which are usually associated with a formulated law involving
linguistic technicalities and grammatical niceties.
 It is the substance of Justice which has to determine its form.
 The expressions “Natural Justice” and “Legal Justice” do not present a
water tight classification.
 It is the substance of Justice which is to be secured by both and when
ever legal
 Justice fails to achieve this solemn purpose, natural Justice is called in aid
of legal Justice.
 Natural Justice relieves legal Justice from unnecessary technicality,
grammatical pedantry or logical prevarication.
 It supplies the omissions of a formulated law.
 As Lord Buck master said, no form or procedure should ever be permitted
to exclude the presentation of a litigants’ defence.
 The adherence to principles of Natural Justice as recognized by all
civilized States is of Supreme importance when a quasi – judicial body embarks
on determining disputes between the parties, or any administrative action
involving civil consequences is in issue.
 Notice it is the first limb of the principle of Audi Alteram Partem.
 Notice should apprise the party the case he has to meet.
 Adequate time should be given to make his representation.

HISTORY
The two principles of natural justice and their interpretation, originally
developed by English judges, are now generally followed in all common
law legal systems, including those of the United States. They do not necessarily
apply in the same way in civil law legal systems, which may, for example,
permit trial in absentia.

In the absence of an entrenched constitution, English courts can only limit

unjust effects of statutes by judge-made law, interpreting statutory provisions in
the context of the existing legal system. In the twentieth century the judges
developed administrative law by extending these "principles of natural justice",
derived from the common law on judicial proceedings, to imply limitations
upon the stated statutory powers of administrative authorities. It must be not
only just and fair whatever being decided but it should appear that justice is
being delivered that way.
PRINCIPLES OF NATURAL JUSTICE
GUIDELINES
The rules of natural justice are the minimum standards of fair decision-making
imposed on persons or bodies acting in a judicial capacity. Where the relevant
person or body is required to determine questions of law or fact in
circumstances where its decisions will have a direct impact on the rights or
legitimate expectations of the individuals concerned, an implied obligation to
observe the principles of natural justice arises. However, in the Code of
Conduct there is an express requirement (in Section G 8) on the Adjudicator to
conduct any hearing in accordance with the principles of natural justice.
In the event of a hearing taking place or a decision being reached which
breaches the principles of natural justice, the person charged may seek a review
of the hearing and/or decision in the courts.

The following are guidelines of natural justice. If an Adjudicator is in any doubt

as to the procedure he is proposing to adopt he should take legal advice.

The rules of natural justice consist of the following elements:

 The right to a fair hearing; and
 The rule against bias

THE RIGHT TO A FAIR HEARING

The right to a fair hearing requires that an individual shall not be penalised by a
decision affecting his rights or legitimate expectations unless he has been given
prior notice of the case against him, a fair opportunity to answer it and the
opportunity to present his own case.
Each individual must have the opportunity to present his version of the facts and
to make submissions on the relevant principles of the Code of Conduct and the
allegations against him.
The right to a fair hearing involves the following:

a) Prior notice of the hearing

Natural justice generally requires that the person charged should be given
adequate notice of the allegations against him and of the procedure for
determining the alleged breaches of the Rules of Conduct so that he may be in a
position to make representations on his own behalf, to appear at the hearing, to
effectively prepare his own case and to answer the case against him.
The time and location of the hearing must be notified to the person charged. In
any event there is a requirement under Section G2 to give details of the time and
place of the hearing at the same time the particulars are given in accordance
with Section G1.
In determining when the hearing should be the Adjudicator should have in
mind:
 the requirement in Section G2 that it be held as soon as reasonably
practicable and where the hearing falls under the jurisdiction of the Referee,
within 36 hours of notification under Section E; and
 the requirement in Section G5 that the person laying the charge, the
person charged and the Adjudicator shall give each other notification of the
evidence they shall refer to at the hearing, at least 2 hours before the hearing;
 the seriousness of the alleged breach; and
 the likely amount of evidence and ease, or otherwise, of obtaining such
evidence.

The detailed provisions for notifying a person who has been reported as being in
breach of the Rules of Conduct appear in Section E. It would be prudent to
ensure that the persons who need to be notified in accordance with that
procedure are notified as soon as possible.
In accordance with Section G1, the Adjudicator should aim to provide the
particulars of any alleged breach as soon as possible. The 15 hour period has
been provided to allow for breaches which may have occurred off the field of
play or outside the precincts of the ground, where it may take more time to
collect the necessary information to be able to provide the particulars required
in Section G1.
If any person charged requests, under Section G6, that any of the provisions of
Section G are waived the Adjudicator, in exercising his discretion whether or
not to accept the request, shall pay particular regard to the nature of the offence
and whether the person charged wishes to accept the charges against him. If the
offence is not serious (relative to the various breaches of the Rules of Conduct
which may be alleged) the Adjudicator ought to allow the request. If the person
charged wishes to accept the charges against him and the Adjudicator does not
need to consider detailed, or any, evidence to determine the appropriate sanction
the request should also be granted. Each request, however, should be considered
on its own merits.

b) The opportunity to be heard

The person charged has a right to attend the hearing and be allowed to present
his case, as provided for in Sections G9 and G10.
Where the person charged does not attend at the time and place of which he was
given notification in accordance with Sections G1 - G3 the Adjudicator has
discretion whether or not to proceed. This is confirmed in Section G10. In
deciding whether to proceed in the absence of the person charged, the
adjudicator must consider whether he is satisfied the person charged was aware
of the time and place for the hearing, whether the time and place for the hearing
was such that the person charged could reasonably attend and whether there is
any indication the person charged was under any misapprehension as to the time
and place for the hearing. The Adjudicator should also have regard to whether
or not he was able to give details of the time and place of the hearing to the
person charged in accordance with Section G3, or whether such notice was
given only to the person to whom notification was given in accordance with
Section E.
c) The conduct of the hearing

The conduct of the hearing is a matter to be determined by the Adjudicator. This

is confirmed in Section G8. The overriding objective the Adjudicator should
have in mind when deciding how the hearing should be conducted is that the
person charged has a proper opportunity to consider, challenge or contradict any
evidence, is fully aware of the nature of the allegations against him and has a
proper opportunity to present his own case.

Generally when an oral hearing is conducted the parties must be allowed to call
witnesses and cross examine the witnesses called by others. This is confirmed in
Section G16.

Sections G14, G15 and G17 enable the Adjudicator to adjourn the hearing if, in
his discretion, he considers that it is appropriate to do so. In deciding whether to
adjourn the hearing, and if so for how long, the Adjudicator should, as an
overriding objective, have in mind the requirements that the person charged is
fully aware of the allegations and evidence against him and that he has a proper
opportunity to prepare and present his case.

d) The right to legal representation

The Adjudicator has an absolute discretion, confirmed in Section G11, to allow

a person charged to be represented at the hearing by a legally qualified person.
An Adjudicator is entitled in the exercise of his discretion to refuse to allow the
person charged to be legally represented at the hearing if the alleged breach of
the Rules of Conduct is not serious (relative to the various nature of possible
breaches) and where it is unlikely that a severe sanction (relative to the various
sanctions available) will be imposed.

If a person charged seeks and is allowed to have legal representation, the

Adjudicator is entitled to seek his own legal advice. This would be by
exercising the discretion in Section G17.

If the Adjudicator has obtained legal advice, whether before or during the
hearing, and the person charged asks that his legal representative be permitted
to attend the hearing and make representations on his behalf, the Adjudicator
should not, unless the legal advice he received is not relevant to any matter in
issue at the hearing (especially where the advice taken relates to a purely
procedural matter), refuse the request.

e) The decision and the reasons for it

The details of how and when the decision should be given are provided for in
Section H. In particular the Adjudicator should note that there is a requirement
in Section H 3 that the Adjudicator give reasons for both his decision and the
sanction he is imposing and that section H 2 requires that the decision be given
as soon as possible but, in any event, no later than 24 hours after the hearing
finishes.

THE RULE AGAINST BIAS

The two main aspects of this rule are that a person adjudicating on a dispute
must have no pecuniary or proprietary interest in the outcome of the
proceedings and must not reasonably be suspected, or show a real likelihood, of
bias.
The Adjudicator must be able to show that he has conducted a full enquiry into
the circumstances involved before making his decision as to whether a breach of
the Rules of Conduct has occurred and, if so, what sanction should be imposed.
There should be no suggestion in his conduct of the hearing that prior to its
commencement he has irrevocably decided the outcome.

CONCLUSION

However, it has to be accepted that law is dynamic and living field and by
merely cling on to the procedures or strict observance of the rules do not
produce a fair and satisfactory outcome. The imaginative application of mind
and the appropriate interpretation of the various rules, provisions of the laws is a
significant area and the judges have an important to play in this regard.
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”.