Once it is found that “Right to Natural Justice” is a “personal & individual right”, the person concerned can always waive such right. But the moot question is “whether principles of natural justice are personal individual rights?” This paper attempts to examine this question and waiver of such right if it is not a personal individual right.
Natural Justice and Public Policy:
The heart and soul of natural justice is fair play in action. In Maneka Gandhi V/s UOI [AIR 1978 SC 597], the principles of natural justice has been defined as quintessence of the process of justice inspired and guided by fair play in action. In Green V/s Blake [(1948) IR 242], Black, J. remarked that natural justice meant no more than justice without the adjective. “Fair play in action” and “Justice” are highest goals of public policy, the highest objective which any polity or society seeks to attain. In this context principles of natural justice are matter of public policy and hence, it cannot be waived as “personal individual right” by the person concerned.
Natural justice is a vital part of Rule of Law. It is a guarantee against the arbitrariness in the administrative or quasi-judicial action. “Rule of Law” has been recognized as a basic feature of our Constitution. In Mohinder Sigh Gill V/s the Chief Election Commissioner [AIR 1978 SC 851], the Supreme Court declared that natural justice is the bone of healthy government, recognized from the earliest times and not a mystic testament of judge-made law. Thus if we treat natural justice as a vital ingredient of “Rule of Law”, it doesn’t remain a personal individual right and cannot be waived by the person concerned.
One of the vital part of the natural justice is justice should not only be done, it should seen to have been done. If the principles of natural justice is not followed, how can it be manifested that justice have been done. Justice to an individual is not merely an “individual’s concern”, the society wants to ensure that justice has been done to every member of the society. If we look at principles of natural justice in this context, the doctrine of waiver cannot have any application to the principles of natural justice.
Natural Justice and Fundamental Rights.
In Dargao V/s State of Uttar Pradesh [AIR 1961 SC 1457], the Supreme Court declared that the Fundamental Rights are intended not only to protect an individual’s right but they are based on high public policy. Earlier also in Behren V/s State of Maharashtra [AIR 1955 SC 123], the Supreme Court declared that fundamental rights are matter of public policy and doctrine of waiver could have no application in case of fundamental rights. In Basheshar Nath V/s I.T. Commissioner [AIR 1959 SC 149], where the question of waiver of fundamental rights was specifically examined the court declared that the fundamental rights are mandatory on the state and no citizen can by his act or conduct relieve the state of the solemn obligation imposed on it.
In UOI V/s Tulsiram Patel [AIR 1985 SC 1416], the Supreme court recognized that principles of natural justice are part of guarantee contained in Article 14 of the Constitution of India. Violation of Rules of natural justice results in arbitrariness, which in same as discrimination prohibited under Article 14 of the Constitution of India. If the principles of natural justice are contained in Article 14 of the constitution of India or they are inseparable to the guarantee given under the Article 14, the doctrine of waiver cannot be applied to the principles of natural justice and an individual concerned cannot waive his right to natural justice.
It may be noted that till now, the Supreme Court have not unambiguously declared that principle of natural justice are fundamental rights of the citizens of India. Nevertheless, the procedural ultra vires, i.e. violation of principle of natural justice have been recognized a ground to move the Supreme Court under article 32 of the Constitution of India. In Coffee Board V/s The Commercial Tax Officer [AIR 1971 SC 870], the Supreme Court held that a petitioner has right to move a Writ petition under Art 32 of the Constitution to challenge a quasi-judicial decision if it has been made without following the principles of natural justice. Thus, albeit indirectly, the Hon’ble Supreme Court have held that principles of natural justice are part of fundamental rights as enshrined in the Constitution. And if it is a part of Fundamental Rights of the land, the doctrine of waiver cannot be applied to the principle of natural justice.
Statutory Provisions: whether Mandatory or Directory.
It may be noted that now a days, principles of natural justice in most of the cases are embedded in the statute itself to ensure no failure of justice and that every person whose rights are going to be affected by the proposed action gets a fair treatment. In Dhirendra Nath Gorai V/s Sudhir Chandra Gosh [AIR 1964 SC 1300], the Supreme Court held that a mandatory provision of the statute cannot be waived but a directory provision can be waived. The principle was followed in State Bank of Patiala V/s S. K. Sharma [AIR 1996 SC 1669], Rajendra Singh V/s State of MP [(1996) 5 SCC 460] and in numerous other cases.
In view of this, it is to be determined that whether conditions imposed in Central Excise Act and Rules made there under, are mandatory or directory. In Ponkinnem Traders V/s Addl. ITO [(1972) 83 ITR 508 (Ker)], it was held that when absolute condition is made in the statute, such as, “no order shall be passed unless notice is given”, the illegality cannot be cured by a waiver of the affected party.
Section 11A of the Central Excise Act reads as,
“Central Excise officer may, …………serve notice on the person chargeable requiring him to show cause…………”.
Rule 25 of the Central Excise Rules and Rule 13 of the Cenvat Credit Rules say that,
“………..an order shall be issued by the Central Excise officer following the principles of natural justice”.
Thus the statutory provisions in Central Excise law, particularly Section 11A doesn’t appear to be absolute or imposing a mandatory condition on the assessing officer to follow the principles of natural justice. Whereas, the conditions imposed in Central Excise Rules and Cenvat Credit Rules appears to be mandatory and absolute. But it may be noted that in older enactments, generally, the principle of natural justice did not the get same legislative backing as it is getting now. In view of this even the older statutes, in the present circumstances, needs to be interpreted as per the present scenario.
The principles of natural justice are part of public policy. They are also a part of the fundamental rights as enshrined in the Constitution of India. The statute in Central excise also requires that the principles of natural justice should be followed. In view of this the author is of the view that the doctrine of waiver is not applicable to the principles of natural justice. The author humbly submits that the Judgment in case of Virgo Steel (Supra) needs to be reconsidered by the Hon’ble Supreme Court.
Written by:- Advocate Rajesh Kumar. The author can be contacted on The author can be contacted on firstname.lastname@example.org , Web: www.rajeshkumar.co.in