Administrative Law
Exclusion of Natural Justice by Statute: Express Words, Necessary Implication and Constitutional Exclusion
Because natural justice is implied into statutes rather than enacted by them, the legislature can in principle take it away. In practice that is far harder than it sounds. The courts begin from a presumption that Parliament intended fair procedure, they require exclusion to be clear, they refuse to infer it from mere silence, and they subject any exclusion they do find to Articles 14 and 21. The result is that very few statutes succeed in excluding natural justice, and most provisions that appear to do so are read as regulating the procedure rather than abolishing it. This topic sets out how exclusion is established, the difference between express and implied exclusion, the special position of exclusion by the Constitution itself, and the limits that apply in every case.
1. The Presumption Against Exclusion
The starting point is that natural justice is read into a statute that is silent, not out of one. Where a power affects rights or interests and the statute prescribes no procedure, the courts supply the requirement of a fair hearing as an implication of the legislative intent; the classic statement, from Cooper v. Wandsworth Board of Works, (1863) 14 CB (NS) 180, is that the justice of the common law supplies the omission of the legislature.
Silence therefore does not exclude. It is the opposite: silence is the very situation in which the implication operates. Exclusion must be found in something the statute says or in a scheme with which a hearing cannot be reconciled.
📖 Sahara India (Firm) v. Commissioner of Income Tax, (2008) 14 SCC 151 Facts: Section 142(2A) of the Income Tax Act, 1961 empowered the assessing officer, having regard to the nature and complexity of the accounts and the interests of revenue, and with the previous approval of the Commissioner, to direct the assessee to get the accounts audited by a nominated accountant and to furnish a report. The provision, as it then stood, did not in terms require the assessee to be heard before the direction was issued, and the department contended that no hearing was therefore due. Held: The Supreme Court held that a hearing was required. A special audit direction is not a routine step: it entails civil consequences for the assessee, exposing him to an intrusive process and, at the relevant time, to the cost of the audit, and casting a stigma on the way his accounts are kept. Since the provision did not expressly exclude the application of natural justice, the requirement of a reasonable opportunity of being heard before the direction was issued had to be read into section 142(2A); the absence of an express provision for a hearing did not mean that the legislature intended to dispense with it. Ratio: Where a statutory power carries civil consequences and the statute does not expressly exclude natural justice, the requirement of a hearing is read in. Legislative silence is an occasion for implication, not for exclusion. |
2. Express Exclusion
The clearest case is a provision stating that the authority may act without notice, or that no opportunity of being heard shall be given, or that the order shall be made notwithstanding anything in any other law. Even here the courts construe strictly, and the leading illustration shows how far the strictness goes.
📖 Olga Tellis v. Bombay Municipal Corporation, (1985) 3 SCC 545 Facts: Pavement and slum dwellers in Bombay were sought to be evicted under section 314 of the Bombay Municipal Corporation Act, 1888, which provided that the Commissioner may, without notice, cause an encroachment on a public street to be removed. It was argued that the provision in terms authorised removal without notice and therefore excluded natural justice. Held: A Constitution Bench held that the section is not a command to act without notice but an enabling provision: it confers a discretion to dispense with notice in situations where notice would be impracticable or would defeat the purpose, and does not oblige the Commissioner to act without notice in every case. The proper construction is that notice must ordinarily be given, and may be dispensed with only where the circumstances warrant it; a statute conferring such a power must be read as requiring the discretion to be exercised reasonably. The Court also held that the right to livelihood is part of the right to life under Article 21, so that eviction affecting livelihood required a fair procedure. Ratio: Even words permitting action without notice are read as enabling rather than mandatory. A power to dispense with a hearing is a discretion to be exercised on the circumstances, not a legislative abolition of the hearing. |
3. Exclusion by Necessary Implication
Where the statute says nothing express, exclusion may still be found if a hearing cannot be reconciled with the scheme. The indicators the courts look for are these.
- A hearing would defeat the purpose. Where the power is pre-emptive and prior notice would enable the mischief to be completed, as with seizure, attachment or freezing.
- The statute prescribes a complete and different procedure. Where the Act lays down its own detailed code of procedure, the inference may be that nothing further is to be added, though the courts usually treat natural justice as filling gaps rather than being displaced.
- The decision is legislative or general. Where the power is to make rules or fix prices for a class, no hearing is implied (Union of India v. Cynamide India Ltd., (1987) 2 SCC 720).
- The scheme provides a hearing at another stage. Where the Act gives a full appeal or a post-decisional opportunity, the implication may be that none was intended at the first stage.
- The subject matter makes a hearing impossible. Where the persons affected are indeterminate, or the decision is one of pure expert or academic assessment.
The counterweight, applied consistently, is that the emergent or drastic character of a power does not by itself exclude the rule. In Swadeshi Cotton Mills v. Union of India, (1981) 1 SCC 664, the Supreme Court held that a power exercisable where immediate action is necessary does not exclude audi alteram partem by implication; exclusion requires express words or a necessary implication, and where urgency genuinely presses, the hearing is truncated rather than abolished.
4. Exclusion by the Constitution
A statutory exclusion is testable against the Constitution; a constitutional exclusion is not. The second proviso to Article 311(2) dispenses with the inquiry for a civil servant in three situations: where the person is dismissed, removed or reduced in rank on the ground of conduct which has led to his conviction on a criminal charge; where the authority is satisfied, for reasons to be recorded in writing, that it is not reasonably practicable to hold an inquiry; and where the President or the Governor is satisfied that in the interest of the security of the State it is not expedient to hold an inquiry.
In Union of India v. Tulsiram Patel, (1985) 3 SCC 398, a Constitution Bench held that the principles of natural justice are part of the guarantee in Article 14, so that an ordinary statutory or executive exclusion would be open to challenge, but that where the Constitution itself excludes them the exclusion is valid, since one part of the Constitution cannot be used to strike down another. The Court nevertheless confined the exception in two ways: it applies only in the three situations specified, and the satisfaction recorded under the proviso is subject to judicial review, the reasons having to exist and be recorded.
5. Limits on Any Exclusion
Limit | Effect |
|---|---|
Strict construction | Exclusion must be clear; ambiguous words are read as regulating procedure rather than abolishing the hearing |
Silence is not exclusion | Where the statute is silent and civil consequences follow, the hearing is read in (Sahara India) |
Enabling words are not mandatory | A power to act without notice is a discretion to dispense, not an abolition (Olga Tellis) |
Constitutional testing | A statutory exclusion must satisfy Articles 14 and 21; only the Constitution can exclude absolutely (Tulsiram Patel) |
Partial rather than total | Exclusion of a full hearing may still leave a truncated or post-decisional opportunity (Swadeshi Cotton Mills) |
Residual fairness | Even where a hearing is excluded, the authority must act on relevant material, in good faith and for the statutory purpose |
Reviewability of the trigger | Where exclusion depends on a satisfaction or a condition, its existence is examinable by the court |
⚠ Excluding the hearing does not exclude the rest A successful exclusion removes one thing only: the obligation to hear the person before deciding. It does not authorise a decision on irrelevant grounds, in bad faith, for a collateral purpose or without any material, since those objections arise from the law of discretion and from Article 14, not from natural justice. Nor does it ordinarily remove the rule against bias, which the courts have treated as more resistant to exclusion because it goes to the competence of the decider rather than to procedure. An authority acting under a valid exclusion therefore remains fully subject to judicial review on every other ground. |
6. The Position in Summary
- Natural justice is implied into statutes, so legislative silence is the occasion for implication rather than for exclusion; where civil consequences follow and no express exclusion appears, a hearing is read in (Sahara India).
- Express exclusion is construed strictly, and words permitting action without notice are read as enabling a discretion to dispense rather than as abolishing the hearing (Olga Tellis).
- Exclusion by necessary implication requires a scheme with which a hearing cannot be reconciled; the drastic or emergent character of a power does not by itself exclude the rule (Swadeshi Cotton Mills).
- Only the Constitution can exclude natural justice absolutely, as the second proviso to Article 311(2) does in three specified situations, and even then the satisfaction is reviewable (Tulsiram Patel).
- Every exclusion is limited: it is construed strictly, tested against Articles 14 and 21, often partial rather than total, and leaves the residual duty of legality and good faith intact.
7. Related Topics and Provisions
- Exceptions to the Principles of Natural Justice (Topic 75): the full range of exceptions and their classification.
- Natural Justice in Emergency Situations (Topic 77): urgency as a ground for truncating rather than excluding the hearing.
- Principles of Natural Justice (Topics 58 and 59): the constitutional dimension that limits statutory exclusion.
- Pre-Decisional and Post-Decisional Hearing (Topic 69): the opportunity that survives a partial exclusion.
- Doctrine of Non-Arbitrariness under Article 14 (Topic 56): the standard against which exclusions are tested.
- Constitution of India: Articles 14, 21, 226 and 311, including the second proviso to Article 311(2).