Right to Notice

Right to Notice

Author Name: Aisha Bilal

College Name: School Of Law Christ Deemed to be University

Synopsis 

  • Introduction 
  • Meaning 
  • Definition 
  • Kinds Of Notice 
  • Basis for application of Principles Of Natural Justice   
  • Contents of Notice 
  • Consequences of non-issue of notice 
  • Scope 
  • Significance of notice 
  • Procedure Established by Law Under Indian Constitution 
  • Due Process of Law Under Constitution Of US 
  • Suggestions 
  • Conclusion 

Introduction: 

 “ Every time justice  is done to the citizen  , the US Government Wins .”-   Office of Attorney General of USA

Principles of natural justice have great significance in the study of administrative law. It is also known as Fundamental Justice or Substantial Justice. These principles are not codified, but are judge made rules. Natural justice is an expression of English Common Law that involves the procedural requirement of fairness. The principles of Natural Justice are not embodied rules and are not codifies, they are judge made rules and are regarded as counter part of the American procedural due process. In India the principle of natural justice can be found under various provisions of the Constitution, such as Art 14 ,21 and Art 22 . 

Meaning: 

 The term notice originates from the Latin word “ notitia’  which means being known . Notice is the legal concept, that gives an intimation to the party concerned to be aware  of the legal process to  be  initiated against the party and   such affecting  the party’s  rights  or obligation .  The right to notice means  , right to know  about the facts of the case , the charges against the party  concerned .  The notice is served to the party concerned before the hearing of the case starts , so that  he/she  can prepare for his/her defence  . 

Definition:  

  • Lord Esher – The principle of Natural Justice is the sense of what is right and what is wrong. He further defined natural justice as fundamental justice .
  • Lord Parker – He has defined natural justice as acting fairly. 
  • Justice PN Bagwati – he defined it as fair play in action under Art 14  Art 2 1 and of Indian Constitution which has strengthened the concept of Natural Justice
  •  Justice Fazl Ali –  Procedure Established by Law  includes four principles 

            a)   Notice

            b)  Opportunity of being heard

            c)  An impartial tribunal and

            d) Orderly course of procedure

Kinds of Notice 

  1. Actual Notice It is sometimes called direct notice.  The notice is in its physical or actual form handed over to the concerned party in a written form.  Sometimes under certain circumstances,  it is required that, the receiver of the notice must sign an acknowledgement   that he received the notice and understands the content of the same. 
  2. Constructive Notice Under this form of notice it is assumed that the party concerned has the knowledge of an event or transaction , as such matter is already in the public domain.  It is sometimes called legal fiction, because it is presumed by the court.  e.g.  If the notice of property dispute is printed on a newspaper  but the concerned party has left the state , in such case court presumes that the party is aware of such notice.
  3. Judicial Notice –  This form of notice is taken by court ,when it declares a fact presented  as evidence  as true without a formal presentation  of evidence . A court can take judicial notice of indisputable facts. Sec 56-58  of the Indian Evidence Act , 1872 deal with doctrine of judicial notice i.e.  facts which can be noticed  by the court  need not be proved
  4. Public Notice –  It  is a notice given to the public regarding certain types of legal proceedings .  It is information alerting citizens of government’s activities, usually such notice is given though the newspapers.  

Basis for application of Principles of Natural Justice: 

    1. Nemo Judex in  causa sua  – Rule against bias i.e.  no one should be a judge in his own cause , and justice should not only be done , but should be manifestly and undoubtly  be seen to done . 
    2. Audi alterm Partem – Rule of Fair hearing , hearing the other side
    3. Reasoned  orderThe decision of the court should be backed by reason

Elements of Fair hearing:

The 2nd  fundamental principle of Natural Justice  is Audi Altrem Partem or the rule of fair hearing , which means no one shall be condemned unheard . Reasonable opportunity, must be given  to person  before taking any action against him /her .  The affected person must be given an opportunity to produce evidence in support  of his case . He should be disclosed  the evidence  to be utilized  against him and should be given an opportunity   to rebute the  evidence produced by another party .  This principle aims at giving opportunity to both the parties to defend themselves . Elements of fair hearing are as follows – 

  1. Notice 
  2. Hearing
  1.    To be fair , before institution action against a party the notice must be given to the part concerned , to give him intimation about the charges against him or action to be taken against him and seek his side of the story .  If an order is passed without giving a notice to the part , such order will be void – ab- initio .It is a duty on the part of deciding authority to government   a notice to a person before taking action against him. The test of adequate notice  will be  whether it gives  sufficient information and material so as to enable the person concerned  to put up an effective defence .  Where a statue expressly provides  for notice to be given  , failure of doing that ,will constitute act to be void .  The person proceeded against is required to be informed about the  exact charges  , nature of charges levelled against him . The authority taking   a decision  must apply its mind  while seeking for the explanation from the concerned party .   Notice must  fairly disclose  the charges  a person  has to meet and reasonable  time must be given to him to make  his defence . The notice must be reasonable and must contain time and place nature of hearing etc. 

Contents of Notice:

  1. Time , place  and nature of hearing
  2. Legal authority under which hearing is to be held 
  3. Statement of specific charges and proposed action which the person has to meet .
  4. Sufficient time should be given for replying to a legal notice . 
  5. Name and designation of  the Enquiry Officer  to be mentioned

Consequences of Non Issuance Of Notice:

 Since the issue of notice is component of fair hearing , the decision made in furtherance to such will be void  . In India  , is fairly well settled  that , whenever  there is a violation  of the rule of fair hearing , the order is null and void .  If Prejudice has been caused  by non – issuance of notice , the proceeding will be vitiated . But it is to be noted that , irregular  service of notice would not render the proceedings invalid . 

1. R v. University Of Cambridge (1723) 1 Str757: 93 ER 698

In this case the  the University  without given any notice cancelled the  degree of Dr. Bentley on the ground of misconduct . 

Held – universities action was held to be violative  of principle of natural justice .

2. Maneka Gandhi v. Union Of India, 1978

 The petitioners  passport was impounded under Passport Authorities Act, without giving  an opportunity  of being heard. 

Held – The act of government was held to be violative of principle of natural justice .

Scope:

The scope of notice can be understood as follows

  1. Common Law – Notice is the fundamental principle is  service of process or process memo ( notice is furnished by delivery of a set of court documents called process  to the person served ). Service of process makes the defendant aware against the allegation against him in the pleading of the petitioner . It notice is not served to the defendant it can be raised as a defence by the defendant before the court of law. 
  2. Civil Law –   In civil case the summons are send by the courts of law to the defendant . He has to abide by the summons issued by the court and appear before the court to present his side of the story . 
  3. Right to know the evidence against him- Every person against whom proceeding are initiated need to know the evidence used to be used against him ( Dhakeshwari  Cotton Mills Ltd v CIT) . No one  should be taken by surprise  and there should be  therefore , full disclosure  of all evidence and documents on which  a decision is to be taken  against a person 

Significance of legal notice:

1.Umanath Pandey v State Of UP , 2009  12 SCC 40-33 

It was held in this case that , ‘Notice is the first limb  of the principle of natural justice .  It further laid down thatb  notice should be  precise and unambiguous . In the  absence  of  a  notice  and reasonable opportunity , order passed become wholly vitiated . Therefore, it become essential to serve a party with a notice , before any adverse order is passed against him . 

2. Biecco Lawrie Ltd v. State of West Bengal , 2009 10 SCC 32 

It was held by the Supreme Court that , one of the essential  ingredients  of fair hearing is that a person should be served with a proper  notice . Notice should be clear and precise . Denial of notice  makes the administrative decision as vitiated . 

3. Maruti Suzuki Inida Ltd . v. Addl. CIT (2010)  192 Taxman 317 , Delhi 

It  was held that  a cryptic order sheet noting would not amount  to a proper show cause notice  to a a party  to defend  his case , such action would be failure to adhere to principle of natural justice .

4. CCE v. ITC Ltd (1995)  2 SCC 38 (SC)

It was held in this case that  an assesse should be asked to show cause as to why he should not  be visited with higher tax before such  levy . He must be given opportunity  if present his inside of the case . 

Procedure established by law  under Indian Constitution: 

  1. Art 14 –  It is an equality provision, it lays down equality before law and equal protection of law.  Art 14 is against arbitrariness, an antithesis to arbitrariness ( EP Royappas case ). Therefore  the administrative authorities should not act arbitrary but  in as per the due procedure laid down under India Constitution
  2. Art 21 – It deals with right to life and personal liberty. It lays down the express mention of the word, due process of law. It asserts that “ No person shall be deprived of his  life or personal liberty  except according to procedure established  law.” 
  3. Art 22 –  As per Art 22(1) person before he his detained in custody  must be informed the grounds of his detention
  4. Art 32- As per this provision when an authority behaves in an arbitrary  manner and  violates  fundamental rights , the person concerned can approach SC under this provision  and remedies 
  5. Art 226- under this provision  remedies in the form of writs can be issued  by  the High Courts.  
  6. Art 311(2)- As per this provision the civil servant before being removed from the post must be given the prior information with regard to the same , so that he can prepare for his defence

Case laws:

Due process clause in US Constitution 

 The phrase , due process of law , first found its mention in Magna Carta , under clause  39  which goes as follows –

‘ No free man shall be seized or imprisoned , or stripped of his rights or possessions or outlawed  or exiled , or deprived of his standing  in any other way  , nor will we  proves with force against him or send others to do so , except by the lawful judgement of his equals or by the law of the land”. 

The 5th and 14th Amendment to the US Constitution contain due process clause.  It was the State of New York that asked for the due process clause to be inserted I the US Constitution. To this proposal, James Madison, drafter due process clause for Congress . This clause acts as a safeguard from the arbitrary denial of liberty, or property  by the government  outside the sanction of law .

  1. 5th Amendment – “No person shall be deprived of life, liberty or property , without due process of law”. 
  2. 14th Amendment – Nor shall any state deprive any person of life , liberty or property , without due process of law . 

Interpretation of Due process clause: 

The Court of USA have interpreted the  due process clause under  5th and 14th Amendment identically . To suppose that due process of law ,meant one thing in 5ht Amendment and another in the 14th amendment  is too frivolous to require elaborate rejection .

1. Hurtado v.  California, 1884 

It has held that , due process of law in the 14th Amendment referred to that law of the land in each state  which derives its authority from the inherent and reserved powers of the state , exerted within the limits of those fundamental principles of liberty and justice which lie the base of all our civil and political institutions , and the greatest security  for which  resides in the right of people to make their own laws and alter them at pleasure .

2. Marry v Hoboken Land and Improvement Company  59 U.S 272, 1855 

The Supreme Court explained that, in order to understand due process of law, the first step is to examine the constitution itself, and see whether this process is in conflict with any of its provisions.  Further is was held that, “the word due process of law, were undoubtedly intended to convey the same meaning as the words, but the law of the land in Magna Carta. 

3. Browning v. Hooper , 264 US 396, 46, 1926 

It was held that, due process also applies to the creation of taxing districts, as taxation is a deprivation of property. Due process requires public hearings proper to the creation of a taxing district. 

4. Board v. Flores de Oterpo, 426 US. 572, 1976 

It was held that due process applies to U.S. territories, although they are not states.

5. Noble v. Union River  Logging, 147 .U.S 165, 1893 

The due process clause applies to both natural as well as to legal persons, also to individuals including citizens and non-citizens. 

Suggestions:

1.Before any proceedings are initiate against an individual he must be served with a notice.

2. Notice must contain all necessary particulars, such as date, time place and reason etc. 

 3. Notice must be served at least few days before the initiation of the proceeding, so that the party concerned can be prepared with his side of the story.

Conclusion:

I would like to conclude by saying that, notice is an important element of principle of natural justice. Such must be duly served to the party concerned failure of which make the action void.   Party to whom such notice is served must reply to such, notice within reasonable time

 

Click Here to Download Article

CATEGORIES
Share This

COMMENTS

Wordpress (0)