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Audi Alteram Partem Rule—Exclusion in Special Circumstances
by Justice R.L. Narasimhan,
Member, Union Law Commission, New Delhi
Cite as : (1971) 1 SCC (Jour) 3
The recent judgment of the Supreme Court in the Bihar School Examination Board v. Subhash Chandra Singh1 will be welcomed with relief not only by the Universities and other educational authorities but also by legal circles where it was felt that the rule of audi alteram partem was being stretched too far and that some restriction should be made on the application of the principle.
The facts of the case are these: The Bihar School Examination Board, which was entrusted with the duty of conducting Secondary School Examination, conducted the said examination, in March, 1969, at various centres including Hanswadih centre in Sahabad District. The results for other centres were published some time in July, 1969, but the results from that centre were withheld and subsequently it was announced that the examinations of all subjects held there were cancelled because of the unfair means practised on a large scale at that centre. The examinees were therefore given the option of appearing at the Secondary School Board Examination to be held in September, 1969.
This order was challenged in an application under Article 226 of the Constitution before the Patna High Court, on the main ground that before cancelling the examinations the Board should have given the persons affected by such cancellations an opportunity of being heard. The High Court while observing that the very high percentage of marks obtained by the candidates who appeared at the centre gave rise to a suspicion that unfair means were practised, nevertheless struck down the order of cancellation on the sole ground that the examinees were not given an opportunity to show cause and thereby the well-known principle of natural justice viz.— audi alteram partem—was not observed. In coming to this conclusion, the High Court relied on a previous judgment of the Supreme Court in Board of High School and Intermediate Examination, U.P., Allahabad v. Ganshyam Das Gupta2 and also on a decision of the Patna High Court in Ajit Singh v. Ranchi University3 The Supreme Court had no hesitation in reversing the order of the High Court. The Court was satisfied from a scrutiny of the marks obtained by the candidates at that centre, that unfair means were practised on a very extensive scale. Their Lordships observed that this was not a case of charging a particular candidate with having adopted unfair means but that it was a simple question as to whether where unfair means appear to have been practised on an extensive scale in a centre the Board would be justified in ordering the holding of a fresh examination, without giving to every candidate affected by the order an opportunity of being heard. To quote Their Lordships:
"If it is not a question of charging any one individually with unfair means but to condemn the examination as ineffective for the purpose it was held, must the Board give an opportunity to all the candidates to represent their cases? We think not. It was not necessary for the Board to give an opportunity to the candidates if the examinations as a whole were being cancelled. The Board had not charged any one with unfair means so that he could claim to defend himself. The examination was vitiated by adoption of unfair means on a mass scale. In these circumstances it would be wrong to insist that the Board must hold a detailed inquiry into the matter and examine each individual case to satisfy itself which of the candidates had not adopted unfair means. The examination as a whole had to go."
It is well-known that adoption of unfair means by candidates with or without the connivance of some of the invigilators has become endemic in certain parts of India especially in the Eastern Zone. Not infrequently, the invigilators themselves encourage the adoption of such means. Instances are known where during the holding of examinations, loudspeakers located outside the examination hall would loudly proclaim the answers and the invigilators would take no preventive steps. A few who tried to prevent such unfair means had to risk their lives and in some centres police protection had to be given to the invigilators while conducting examinations. If it be held as a proposition of law that where the appropriate authority is satisfied that unfair means have been adopted on an extensive scale at a particular centre it has no jurisdiction to cancel the examination and hold a fresh examination unless every candidate affected by the order of cancellation is given an opportunity of being heard, it will be practically impossible for the authority to discharge its primary function of conducting examinations fairly. To hear every examinee concerned would involve much delay and where urgent action is required, it will be impracticable to give the examinees such an opportunity.
It is true that the audi alteram partem principle is a very ancient one, deriving strength from a Biblical passage. (See the well-known observation in Bentley case4) and the application of this rule to judicial proceedings is beyond doubt. Where however it is extended to non-judicial orders or to administrative orders the application of this principle is subject to some limitations. These are set out in great detail in S.A. de Smith's Judicial Review of Administrative Actions, pp. 167 to 179. I need only to refer two of those exceptions : Firstly, where the obligation to give notice and the opportunity of being heard would obstruct the taking of prompt action especially action of a preventive or remedial nature and secondly where the power exercised is disciplinary.
The vexed question as to whether an order is a quasi-judicial order or mere administrative order, for the purpose of applying the audi alteram partem rule, may be said to have been solved by Lord Reid in Ridge v. Baldwin where the principle laid down in Nakkuda Ali case,5 was held to be not authoritative. Hence even if an order is not pronounced to be quasi-judicial other circumstances may require the application of the principle of audi alteram partem but Lord Reid was somewhat guarded on the subject and observed at p. 72, ibid :
"If a Minister is considering whether to make a scheme for say an important new road his primary concern will not be with the advantage which its construction will do to the rights of the individual owners of land. He will have to consider all manner of questions of public interest and it may be a number of alternative schemes. He cannot be prevented from attaching more importance to the fulfilment of his policy than to the fate of individual objectors and it would be quite wrong for the courts to say that the Minister should or could act in the same kind of way as a Board of Works deciding whether a house should be pulled down."
While commenting on this passage H.W.R. Wade in his Administrative Law, 2nd Edn., at p. 191, observed:
"The passage is only a short digression and is plainly not intended to change established law but it seems to suggest that in such a case the Minister would be entitled to acquire land compulsorily without giving the owner a hearing. A suggestion which conflicts not only with the decision on natural justice but with the enacted compulsory projects."
These observations only emphasise that there may be exceptional circumstances where the audi alteram partem rule need not be complied with especially where the authority concerned is not dealing with an individual case but primarily with broader questions of policy.
In a recent judgment of the Privy Council Alfred Ahangarajah Durayappah v. W.J. Fernando6, Their Lordships had to re-examine the principles laid down in Nakkuda Ali case and Ridge v. Baldwin. Lord Upjohn stated (at p. 346) "Their Lordships will only state that while great urgency may rightly limit such opportunity timeously, perhaps severely, there can never be a denial of that opportunity if the principles of natural justice are applicable". Again at p. 349 His Lordship observed:
"Outside the well-known classes of cases, no general rule can be laid down as to the application of the general principle in addition to the language of the provision. In Their Lordships' opinion there are three matters which must always be borne in mind when considering whether the principle should be applied or not. These three matters are : first, what is the nature of the property, the office held, status enjoyed or services to be performed by the complainant of injustice. Secondly, in what circumstances and upon what occasions is the person claiming to be entitled to exercise the measure of control entitled to intervene. Thirdly, when a right to intervene is proved, what sanctions in fact is the latter entitled to impose upon the other. It is only upon a consideration of all these matters that the question of the application of the principle can properly be determined."
In a later decision of the Supreme Court, the Union of India v. Col. J.N. Sinha,7 Their Lordships pointed out:
"Where the exercise of a power conferred should be made in accordance with any of the principles of natural justice or not depends upon the express words of the provision conferring the power, the nature of the power conferred and the purpose for which it is conferred and the effect of the exercise of that power."
Applying these principles to disciplinary actions against students the court has to consider what was the main objective of the educational authorities. If it was to punish students by cancelling their examination and imposing some other penalties such as debarring them for certain years, it is well settled that the students concerned should be given an opportunity of being heard, before any order adverse to them is passed. AIR 1962 SC 1110 and AIR 1964 Pat 291 and all other Indian decisions on the subject dealt with cases where students charged with adopting unfair means at examinations were actually punished.8 The observations of the Privy Council in Fenando case9 would support this view. Though there may be difference of opinion as to whether in a particular case the right of hearing given to the delinquent student was sufficient to conform to the principle of natural justice, there is no doubt that the student should be given an opportunity of being heard.
But where the primary objective of the educational authorities was to fulfil the duty of conducting the examination fairly and the harassment to which the affected party may be put, namely, the necessity of sitting again at a fresh examination, is incidental to the fulfilment of the aforesaid primary purpose it will be unreasonable to stretch the principle of audi alteram partem. Where allegations of the practice of the unfair means on an extensive scale at a particular centre are brought to the notice of the authorities and after proper inquiry they are satisfied of the truth of those allegations they have to act very promptly in cancelling the examinations and conducting fresh examinations. A long drawn out process of holding an inquiry after giving notice to every student likely to be affected by the order of cancellation, an opportunity of being heard would not only cause inordinate delay but would obstruct the fulfilment of the statutory duty by the authority concerned. The necessity for urgent action may warrant disregard of the audi alteram partem principle.10 As pointed out by S. A. de Smith ibid. at p. 175 :
"That urgency may warrant disregard of the principle of audi alteram partem rule in other situations is generally conceded. There will be disagreement however about the circumstances in which a deviation ought to be permissible. In a recent Canadian case the need to protect the public against fraudulent dealings in securities was held to justify summary action."11
The writing of some of the leading American commentators on the right of hearing in Administrative Law support such a view. Thus Gellhorn in his Administrative Law at pp. 718-719 pointed out that the nature of the problem to be dealt with and the character of the administrative determination have a direct bearing on the right of hearing. In South Africa also as pointed out by de Smith ibid. at p. 157 :
"The sacred maxim audi alteram partem had to be enforced unless it was clear that Parliament has expressly or by necessary implication enacted that it should not apply or that there are exceptional circumstances which would justify the courts not giving effect to it."
The latest judgment of the Supreme Court has thus brought out prominently one of the exceptional circumstances which may justify the departure from the audi alteram partem rule. It will, to a great extent, check the tendency of some courts to stretch the principle too far, and will enable them to give more weight to the main purpose for which the impugned order was passed and not to the ancillary effect of some harassment and inconvenience which the said order may cause to some persons. This decision will also strengthen the hands of the authorities in taking prompt and effective steps to prevent adoption of unfair means on a mass scale at various examination centres which, as already pointed out, has become a serious menace in some States of India.
- (1974) (1) SCC 648.
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- AIR 1962 SC 1110.
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- AIR 1964 Pat 291.
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- Rex v. Chancellor of the University of Cambridge, (1973) 1 STR 557 at p. 567.
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- 1951 AC 66. See also (1967) 2 QB 617.
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- (1967) 2 AC 337.
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- (1970) 2 SCC 558 at 561.
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- See AIR 1955 Punj 120; AIR 1966 Punj 155; AIR 1966 MP 136.
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- University of Ceylon v. E.F.W. Fernando, WLR 1960, Vol. I, p. 223.
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- De Verteuil v. Kanggs, 1918 AC 557 at p. 560.
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- (1964) 44, Dominion Law Report. See also Rex v. Radolf, 1960 SCR 260.
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