Right to Notice
Author Name: Aisha Bilal
College Name: School Of Law Christ Deemed to be University
- Kinds Of Notice
- Basis for application of Principles Of Natural Justice
- Contents of Notice
- Consequences of non-issue of notice
- Significance of notice
- Procedure Established by Law Under Indian Constitution
- Due Process of Law Under Constitution Of US
“ 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 .
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 .
- 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
b) Opportunity of being heard
c) An impartial tribunal and
d) Orderly course of procedure
Kinds of Notice
- 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.
- 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.
- 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 .
- 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:
- 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 .
- Audi alterm Partem – Rule of Fair hearing , hearing the other side
- Reasoned order – The 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 –
- 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:
- Time , place and nature of hearing
- Legal authority under which hearing is to be held
- Statement of specific charges and proposed action which the person has to meet .
- Sufficient time should be given for replying to a legal notice .
- 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 .
The scope of notice can be understood as follows –
- 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.
- 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 .
- 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:
- 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.
- 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.”
- Art 22 – As per Art 22(1) person before he his detained in custody must be informed the grounds of his detention.
- 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
- Art 226- under this provision remedies in the form of writs can be issued by the High Courts.
- 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 .
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 .
- 5th Amendment – “No person shall be deprived of life, liberty or property , without due process of law”.
- 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.
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.
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.