AUDI ALTERAM PARTEM
Meaning:
Audi Alteram Partem means
A. Hear the alternative side
B. No man should be condemned unheard
C. either side must be heard before passing any
order
Applicability of Maxim
This principle isn't confined only to the court and judicial proceedings but reaches all proceedings by whosoever, which affects the persons or property or other rights of the parties concerned in question and thus the maxim will apply with no less force to proceedings that affect the liability to pay a tax duty.Elements of Maxim
This maxim includes two elementsi. Notice
Before any action is taken, the affected party
must tend the notice to point cause against the proposed action and seek his
explanation.
Any order passed without giving notice is against
the principles of Natural Justice.
a. Notice must be properly served:
A notice to be valid and effective must be
property served on the concerned person.
b. Sufficient time be given:
A sufficient time must be inclined to enable the
individuals to arrange their case.
c. Notice must be adequate:
A notice which merely repeats the statutory
language without giving any facts and other particulars is insufficient and
inadequate.
d. Clear and unambiguous:
The grounds given within the notice on which the
action is proposed to be taken should be clear, specific, and unambiguous.
e. Modes of serving notice:
Following are the modes of serving notice.
I. Delivering to him by hand
II. Sending it to him by registered
post
ii. Hearing:
The second requirement is that the person
concerned must tend an opportunity of being heard before any adverse action is taken
against him and no one should be condemned unheard.
A. Conditions of hearing:
A hearing to be fair must fulfill the
following conditions;
i. Receiving evidence produced by individual
The adjudicated authority is obligated to supply to the person affected, right to provide all the evidence in support of his case.ii. Disclosure of materials to the party
The adjudication authority should disclose all
information, evidence, or material that the authority wishes to use against the
individual concerned in arriving at its decision.
iii. Opportunity to cross-examine witnesses
The adjudicating authority should give the individual concerned an opportunity to rebut such information or materials or witnesses used against him.
B. Opportunity to means cause must be proved:
In pursuance of the maxim, an actual opportunity should be afforded to the person concerned.Applicability of maxim in Islamic law:
This Maxim also applies in Islamic law.A hadith of the Holy Prophet (PBUH) is quoted as
“Once the prophet appointed Hazrat Ali in his early youth, the judgeship of Yemen.
Hazarat Ali pointed to his youth, and inexperience & confessed his lack of acquaintanceship with a responsible undertaking the Holy Prophet replied God will guide you and provides you strength in your pronouncements if when making a call issues between the partners you'll not decide in favor of 1 such party without hearing the other side.
The doctrine is deeply embodied within the
“Shariat” of Islam and this can be often the very basis of justice.
C. No evidence should be recorded at the rear of another party:
The ex-party evidence taken within the absence of the other party violates the principle of hearing.
Exemption of the principle of Natural Justice:
There are certain situations that demand the exclusion of the foundations of Natural Justice by reason of diverse factors.Here are some samples of exclusion.
i. Statutory Exclusion:
If a statutory provision either specifically or by necessary implication excludes the applying of any or all the principles of Natural Justice. Then the court cannot ignore the mandate of the legislature or the statutory authority.ii. Legislative Acts:
Legislative acts, plenary (of an assembly) or subordinate legislation is additionally not subject to the principles of Natural Justice.Thus before enacting Law regarding imposing the tax, fixing prices, etc. it isn't necessary to issue notice and afford to pay attention to it.
iii. Necessity:
The doctrine unavoidably applies not only to judicial matters but also to quasi-judicial similar to administrative matters.iv. Confidential inquires:
The observance of the principles of natural justice is additionally dispensed with where the inquiry is of confidential nature and disclosure of knowledge may defeat the item of the statute.v. Preventive action:
Principles of natural justice could even be excluded if its effect would vitiate the action sought to be taken or would defeat and paralyze the administration of the Law.vi. Emergency:
In exceptional cases of urgency and emergency, where prompt and preventive action is required to be taken, the principle of natural justice needn't be compiled.Effect of nonobservance of principle:
General view:
The courts are unanimous that a call rendered in violation of the rule against bias is simply voidable and not void.1. In England:
There has been a difference of opinion on this point:A. In some cases the courts have taken the view that the noncompliance of principles of natural justice wouldn't vitiate the order and also the order can't be said void but merely voidable.
B. In other cases the courts have taken the view
that nonobservance of the principles of natural justice renders the order null
and void, as mentioned in the recent decision of the Supreme Court.