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Principle of Natural Justice in Nepal Explained

Principle of Natural Justice in Nepal Explained
Table of Contents

The principles of natural justice are the principles and procedures that are developed to ensure fair and impartial justice. Aristotle says that justice consists in what is lawful and fair. It means that the adjudication system should be unbiased and the adjudicator should act in good faith. For this, each party should have equal access to the court or judicial authority and should know the argument and document presented by the other party.

The principle of natural justice requires that the adjudication process must be just or fair, Natural justice imposes a code of fair procedure, including the right to fair hearing and the right to have a decision made by an impartial decision maker. The concept imposes an obligation to the decision maker for providing a minimum level of fairness when an individual's rights are affected in any of the broad range of factual scenarios. Its objective is to protect individuals from the excesses of power.

The rules of natural justice are enshrined in these two basic rules of fair procedure: "audi alteram partem" (let the other side be heard) and."nemo judex in causa sua" (no one can be the judge in their own cause). Audi alteram partem is the principle that no person should be judged without a fair hearing in which each party is given the opportunity to present their case and respond to the evidence against them.

The principle that "nemo judex in causa sua" (no one can be the judge in their own cause) gives rise to a duty to act fairly, to listen to arguments and to reach a decision in a manner that is untainted by bias. The key to natural justice is to ensure that decision-making processes are transparent, impartial, and evidence-based and, therefore, fair.

Lord Lane says " The rules of natural justice mean that the proceedings must be conducted in a fair way. Fair in all the circumstances, that the rules of natural justice are not rigid and determinate. The so-called rules of natural justice are not engraved on tablets of stone. To use the phrase which better expresses the underlying concept, what the requirements of fairness demand when anybody, domestic, administrative or judicial, has to make a decision which will affect the rights of individuals depends on the character of the decision-making body, the kind of question it has to make and the statutory or other framework in which it operates.

The rules of natural justice are common law rules, although, in many instances, their requirements may be made statutory. The fundamental dictate of justice is that those affected by decision makers should be dealt with in a fair manner. In order for this to be achieved, there may be several requirements which must be fulfilled.

1. Rule against bias (nemo judex in causa sua)

It is the essence of judicial and quasi-judicial decision that the authority making such decision should be able to act impartially, objectively and without any bias. The essence of justice lies in a fair hearing. The rule against bias is strict: it is not necessary to show that actual bias existed. Justice should not only be done but should manifestly and undoubtedly be seen to be done. The suspicion of bias must, however, be a reasonable one.

This principle is violated when the judicial or quasi-judicial authority is interested in the cause before him. Such interests may be of three kinds:

Direct connection with the subject matter of litigation

He may have a direct connection with the litigation. A judge who is himself a party or has personal knowledge of the fact of the case or who has examined himself as a witness should not hear it.

Pecuniary interest

Lord Denning wrote that the court looks at the impression which would be given to other people. Even if he was as impartial as could be, nevertheless, if right-minded persons would think that, in the circumstances, there was a real likelihood of bias on his part, then he should not sit. The court will not inquire whether he did favour one side unfairly. The reasonable people might think he did. Justice must be rooted in confidence and confidence is destroyed when right-minded people go away thinking: “The judge was biased.”

Personal bias

Even when there is no pecuniary interest, a judge may have a personal bias toward a party owing to relationship and the like or he may be personally hostile to a party as a result of happening either before or during the trial.

Hilaire Barnett discusses financial bias and other biases. Existence of financial interest on the matter of the case will be sufficient for disqualifying a judge from adjudication. The judge may exhibit bias by virtue of race, sex, politics, background, association, and opinions. When adjudicating, however, they must be demonstrably impartial. This impartiality involves the judge, listening to each side with equal attention, and coming to a decision on the argument, irrespective of his personal view about the litigants.

Theory of biasness simply means one shall not try one's case or a case having one's interest. Section 271 of Civil Procedure Code 2074 and Section 176 of the Criminal Procedure Code 2074 states that no judge shall try a case involving the right, interest or concern of him or her or of his or her close relative. These legal provisions further give the sorts of cases which are restricted to adjudicate or try, as the judge may be biased toward any particular party. So, the principle of natural justice plays a very important role to avoid the probable bias.

2. Right to hearing (audi alteram partem)

It is a fundamental requirement of justice that, when a person's interests are affected by a judicial or administrative decision, he or she has the opportunity both to know and to understand any allegations made, and to make representations to the decision maker to meet the allegations. A fair determination of a case may involve one or more of the following:

  • the right to being given notification of a hearing,
  • the right to be given indications of any adverse evidence;
  • the right to be given an opportunity to respond to the evidence;
  • the right to an oral hearing;
  • the right to legal representation at a hearing;
  • the right to question witnesses.

The theory of hearing means a judge should hear both parties equally. Trial should be done with good faith and without bias. One should not be condemned without hearing. The right to fair hearing requires that individuals should not be penalized by decisions affecting their rights or legitimate expectations unless they have been given prior notice of the case, a fair opportunity to answer it, and to present their case. This principle requires that every person whose civil right is affected must have reasonable notice of the case he has to meet; or must be furnished with the information upon which the action is based.

That he must have a reasonable opportunity of being heard in his defense or to meet the case against him. This requirement has two elements

  1. opportunity to be heard must be given
  2. such opportunity must be reasonable.

That (where proceeding requires the taking of evidence) he must have the opportunity of adducing all relevant evidences on which he relies, the evidence of opponent should be taken in his presence and that he must have the opportunity cross-examine the witness examined or relied upon by the opponent and the documents which are necessary for an effective exercise of the foregoing rights that should not be withheld from such person.

The Supreme Court of Nepal has observed and applied the principle of natural justice in large numbers of civil and criminal cases as well as writ petitions. The Supreme Court had applied the principle of bias in the case of Illegal Suspension, Secretary of Forest v. Gajendra Bahadur Pradhananga. In this case the wider Full Bench of the Supreme Court sustained the judgment of the Full Bench, which invalidated the decision of the Secretary of Forest to suspend the Officer Gajendra Bahadur Pradhananga on the ground that the Secretary of Forest initiated the action against Gajendra Bahadur with a preconceived notion.

The principle of natural justice is a cornerstone of fair legal proceedings, ensuring impartiality and procedural fairness in judicial and administrative decisions. By upholding the fundamental rules of "audi alteram partem" (right to a fair hearing) and "nemo judex in causa sua" (rule against bias), natural justice safeguards individuals from arbitrary and unjust decisions. These principles are deeply embedded in both common law and statutory provisions, reinforcing the necessity of transparency and objectivity in adjudication. Bias, whether personal, pecuniary, or institutional, erodes confidence in the justice system and must be strictly avoided. Likewise, the right to a fair hearing ensures that every affected individual is granted an opportunity to present their case, challenge opposing evidence, and be informed of the proceedings. As demonstrated by judicial precedents, including those from the Supreme Court of Nepal, adherence to these principles is crucial in protecting rights and maintaining public trust in the legal system.