RIGHT TO BE HEARD ; AN IMPORTANT COMPONENT OF

DELIVERANCE OF JUSTICE

The right to be heard is a very important constituent of the principle of natural justice. It not only gives an opportunity to the parties to present their case but also inculcates the confidence of deliverance of justice. There are cases which are based on documentary evidences and right to have personal hearing does not appear to be of significance but still the court has been inclined to grant the right to hearing to the parties because there is no harm in granting such opportunities.

The right to be heard should go unhampered and be effective. In some cases where a party has appeared before a tribunal but has been so hampered in the presentation of the case that it has been held not to have had a hearing.

The second vital component of right to be heard is the sufficient notice to allow for preparation of defense. If a party is given a very short notice of hearing then it is of no consequences towards this right. What is to be construed as short notice or adequate notice is to be judged on the facts & complexity of the case and should be left to the discretions of the tribunal or judges but it has definitely a important bearing on the deliverance of justice. The courts attach such weight to the giving of adequate notice that where tribunals have correctly followed statutory provisions, they will be astute to help a party who did not in fact receive notice.

The right to a hearing and to a adequate notice may still be of little value if the individual does not know the evidences against him. The court proceedings get vitiated and are liable to be set aside if a party has no opportunity during trial to see or hear evidence against him. The right to effective hearing may necessitate adjournment of hearing which should be resorted to. In some cases the courts have recognized limits to right of a party to know the evidence before a tribunal. Thus the public interest in suppressing crime may be invoked to justify withholding the source of information from a party.

The right to cross-examine exists or not will depend upon the gravity and facts of the case. But in the courts in modern time it has been recognized as one of the prime component of the right to be heard. The next moot point is whether there is the right to have delivered the decision from the judge or tribunal who has heard himself the party. This may pose a problem in a society or the large organization because it would not be practicable to ensure this. Therefore in a tribunal or court where the evidences are recorded and the documents are taken on record, it is not necessary for the same person to give decision who has heard in person. A person later on can peruse the evidences and can deliver the decision.

A word of caution has been added by Lord Widgery C.J., although tribunals or courts must be careful to allow a party to put his case fully they are not required to sit “ pinioned in their seats” while a party talks endlessly. Secondly, once that point has been reached the tribunal is entitled to reach its conclusion and announce them. There is no right to be heard a second time.

There is difference of opinion among the experts whether the representation through legal experts entails a right or not. It is also a point of debate whether legal representation facilitates better results or not. In most of the society this is addressed by formulation of legal rules etc. I am of the opinion that in tribunals where law does not restrict, a party may be represented by a person other than lawyer if it suits them otherwise in most of the society the representation through a lawyer has been made enforceable by law.

The process of deliverance of justice demands greater degree of transparency in procedures and process. There is a very old saying that justice should not only be done but it should be seen to be done. This maxim is invoked in cases to see presence of bias or otherwise. Likewise if a party has not been afforded a proper opportunity for hearing then there persists a element of bias since justice is not seen to be done though in reality there may not exist bias. This maxim has similarly been relied on where decisions have been invalidated because the tribunal has received or appeared to receive, evidence in the absence of one of the parties.

This maxim is precisely applicable when the court is concerned not with a case of actual injustice but with the appearance of injustice or possible injustice. In words of Lord Lawton L. J “Doing what is right may still result in unfairness if it is done in the wrong way.” It is a important element in every society to build the public confidence that settlement of dispute in a tribunal or court would be done in just manner and this maxim contributes a lot towards this end. This may take some time extra in deliverance of justice but it is worth doing. Similarly, though the magistrates and administrative bodies are not under obligation of duty to give reason for their decisions but it has now been equally recognized by courts and legislation the desirability to give reasons for their decisions so that justice is not only done but it is also seen to be done.

There are certain circumstances in which the right to be heard does not constitute a right

Like ministerial decisions. Here the application of rules requiring a hearing and impartial

tribunal involves difficulties. The ministerial decision as well as secretarial decision to

initiate the procedure necessary to reach a preliminary conclusion whether to initiate a

inquiry or not OR to assess whether a prima-facie case exists or not are also precluded

from the right to be heard. Lord Denning expressed the view that there remains a

difference between what he called prima facie decision and a final decision. The reason for

this distinction is that the party is going to get an opportunity to present his point of view

before the process to arrive at final decision comes to conclusion.

There is no right to hearing where there is not even a provisional decision or preliminary

proceedings but merely the preparation of evidence to be used later in the making of a

decision. Similarly the witnesses cannot be expected to grant a hearing before giving

evidence to which a party objects. The duty of the tribunal is to reach a decision after

hearing the evidence and comments on it of the opposite party. There do exist a authority

for the proposition that that a body need not follow principles of natural justice if the

question of privilege or license is involved and does not confer the right to be heard but

this distinction has not been found to be attractive distinction. Depending upon the facts

and circumstances of the case, invariably the right to be heard and opportunity to know

the charges do constitute a important component of principle of natural justice.