NATIONAL LAW INSTITUTE UNIVERSITY

BHOPAL, M.P.

A Project On CPC -1 On The Topic

“ Principals of Audi Alteram Partem”

Submitted to, Submitted by,

Prof. Ranjan Rai Ajita
Nadkarni
2012 BA LLB 101

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 Acknowledgement
With my highest gratitude I would take this opportunity to thank all those people who helped
me in making this project.Firstly I would thank my parents who always supported me in all
my endeavours .Then I would thank Ranjan Sir who guided me with the strategy to make this
project successfully.Without the direction of all the above mentioned people ,this project
would have been incomplete.

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 Table Of Contents
Topic Page No:
l.Introduction.................................................................................................................4

2.Relationship between natural justice and

Audi alteram partem..................................................................................................4-5

3.Case laws on audi alteram partem.............................................................................5-11

4.Right to legal representation......................................................................................11-12

5.Right to free legal aid..................................................................................................13

6.Legal aid:The Concept.................................................................................................13

7.Free legal aid in India..................................................................................................14

8.Statutory recognition of free legal aid........................................................................14-15

9.Ex parte orders..............................................................................................................15

10.When are ex parte orders allowed...............................................................................16

11.Whether ex parte orders violate audi alteram partem..................................................17

12.Conclusion...................................................................................................................17

13.Bibliography.................................................................................................................18

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 Introduction
Audi alteram partem (or audiatur et altera pars) is a Latin phrase which means "hear the other
side too", or "hear the alternative party too".It is very often used to refer to the principle that
no person should be judged without a fair hearing in which each party is given the
opportunity to respond to the evidence against them.It literally means, “let the other side
speak.” Thus no man shall be condemned as unheard,as a matter of his right.The principal of
audi alteram partem is one of the most cherished and sacrosanct principals of law.

"Audi alteram partem" is considered a principle of fundamental justice or equity in most legal

systems. The principle encompasses the rights of a party or his lawyers to confront
the witnesses against him, to have a fair chance to challenge the evidence presented by the
other party, to summon one's own witnesses, to present evidence and to have counsel, if
necessary at public expense, in order to make one's case properly and promptly.This principal
is widely used as a subject of research by legal scholars,judges,academicians,lawyers ,law
students and other law professionals.

Relationship between Natural Justice And Audi Alteram Partem

In India there is no statute laying down the minimum procedure which administrative
agencies must follow while exercising decision-making powers. This minimum fair
procedure refers to the principles of natural justice. Natural justice is a concept of common
law and represents higher procedural principles developed by the courts, which every
judicial, quasi-judicial and administrative agency must follow while taking any decision
adversely affecting the rights of a private individual. Natural justice implies fairness, equity
and equality. In a welfare state like India, the role and jurisdiction of administrative agencies
is increasing at a rapid pace. The concept of Rule of Law would loose its validity if the
instrumentalities of the State are not charged with the duty of discharging these functions in a
fair and just manner. In India, the principles of natural justice are firmly grounded in Article
14 & 21 of the Constitution. With the introduction of concept of substantive and procedural
due process of law in Article 21, all that fairness which is included in the principles of natural
justice can be found out and read into Art. 21. The violation of principles of natural justice
results in arbitrariness.So violation of natural justice is a violation of the Equality clause of
Article 14.

The principle of natural justice mainly encompasses the following two rules: -
1. Nemo judex in causa sua - No one should be made a judge in his own cause or the rule
against bias.

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2. Audi alteram partem - Hear the other party or the rule of fair hearing or the rule that no
one should be condemned unheard.
So the rule of audi alteram partem comes within the ambit of the rules of natural
justice.Natural justice is a wider concept than audi alteram partem.

Case Laws On Audi Alteram Partem

1.Bihar School Examination Board  v.  Subhash Chandra Singh (1971) 1 SCC
(Jour)3:

This judgement 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

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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 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, 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, 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 :

"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."

In a recent judgment of the Privy Council Alfred Ahangarajah Durayappah v. W.J.

Fernando, 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

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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 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."

2. Union of India  v.Col. J.N. Sinha 1971 SCR (1) 791:

 In this case 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. 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. As pointed out by S. A. de
Smith :

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"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  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 :

"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."

3.Uma Nath Pandey v. State of U.P. AIR 2009 SC 2375 :

The Supreme Court explained the meaning of audi alteram partem in this case in the
following points:

1. Natural justice is another name for commonsense justice. Rules of natural justice are not
codified canons. But they are principles ingrained into the conscience of man. Natural justice
is the administration of justice in a commonsense liberal way. Justice is based substantially
on natural ideals and human values. The administration of justice is to be freed from
the narrow and restricted considerations which are usually associated with a formulated law
involving linguistic technicalities and grammatical niceties. It is the substance of justice
which has to determine its form.

2. The expressions “natural justice” and “legal justice” do not present a water-tight
classification. It is the substance of justice which is to be secured by both, and whenever legal
justice fails to achieve this solemn purpose, natural justice is called in aid of legal justice.
Natural justice relieves legal justice from unnecessary technicality, grammatical pedantry or
logical prevarication. It supplies the omissions of a formulated law. As Lord Buckmaster
said, no form or procedure should ever be permitted to exclude the presentation of a litigants’
defence. 

3.The adherence to principles of natural justice as recognized by all civilized States is of

supreme importance when a quasi-judicial body embarks on determining disputes between
the parties, or any administrative action involving civil consequences is in issue. These
principles are well settled. The first and foremost principle is what is commonly known as
audi alteram partem rule. It says that no one should be condemned unheard. Notice is the first
limb of this principle. It must be precise and unambiguous. It should appraise the party
determinatively the case he has to meet. Time given for the purpose should be adequate so as
to enable him to make his representation. In the absence of a notice of the kind and

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such reasonable opportunity, the order passed becomes wholly vitiated. Thus, it is but
essential that a party should be put on notice of the case before any adverse order is passed
against him. This is one of the most important principles of natural justice. It is after all an
approved rule of fair play. The concept has gained significance and shades with time. When
the historic document was made at Runnymede in 1215, the first statutory recognition of this
principle found its way into the “Magna Carta”. The classic exposition of Sir Edward Coke of
natural justice requires to “vocate, interrogate and adjudicate”. In the celebrated case
of Cooper v. Wandsworth Board of Works [(1863) 143 ER 414], the principle was thus
stated: 

“Even God did not pass a sentence upon Adam, before he was called upon to make his
defence. “Adam” says God, “where art thou? hast thou not eaten of the tree whereof I
commanded thee that thou shouldest not eat”.

4. Since then the principle has been chiselled, honed and refined, enriching its content.
Judicial treatment has added light and luminosity to the concept, like polishing of a diamond.

5. Principles of natural justice are those rules which have been laid down by the Courts as
being the minimum protection of the rights of the individual against the arbitrary procedure
that may be adopted by a judicial, quasi-judicial and administrative authority while making
an order affecting those rights. These rules are intended to prevent such authority from
doing injustice.

6. What is meant by the term ‘principles of natural justice’ is not easy to determine. Lord
Summer (then Hamilton, L.J.) in Ray v. Local Government Board (1914) 1 KB 160 at
p.199:83 LJKB 86) described the phrase as sadly lacking in precision. In General Council of
Medical Education & Registration of U.K. v. Sanckman (1943 AC 627: (1948) 2 All ER
337), Lord Wright observed that it was not desirable to attempt ‘to force it into any
procusteam bed’ and mentioned that one essential requirement was that the Tribunal should
be impartial and have no personal interest in the controversy, and further that it should give ‘a
full and fair opportunity’ to every party of being heard.

7. Lord Wright referred to the leading cases on the subject. The most important of them is
the Board of Education v. Rice (1911 AC 179:80 LJKB 796), where Lord Loreburn, L.C.
observed as follows: 

“Comparatively recent statutes have extended, if they have originated, the practice of
imposing upon departments or offices of State the duty of deciding or determining questions
of various kinds. It will, I suppose usually be of an administrative kind, but sometimes, it will
involve matter of law as well as matter of fact, or even depend upon matter of law alone. In
such cases, the Board of Education will have to ascertain the law and also to ascertain the
facts. I need not and that in doing either they must act in good faith and fairly listen to both
sides for that is a duty lying upon everyone who decides anything. But I do not think they are
bound to treat such a question as though it were a trial....The Board is in the nature of the
arbitral tribunal, and a Court of law has no jurisdiction to hear appeals from the determination
either upon law or upon fact. But if the Court is satisfied either that the Board have not acted

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judicially in the way I have described, or have not determined the question which they
are required by the Act to determine, then there is a remedy by mandamus and certiorari”.

8. Lord Wright also emphasized from the same decision the observation of the Lord
Chancellor that the Board can obtain information in any way they think best, always giving a
fair opportunity to those who are parties to the controversy for correcting or contradicting any
relevant statement prejudicial to their view”. To the same effect are the observations of Earl
of Selbourne, LO in Spackman v. Plumstead District Board of Works (1985 (10) AC 229:54
LJMC 81), where the learned and noble Lord Chancellor observed as follows:

“No doubt, in the absence of special provisions as to how the person who is to decide is to
proceed, law will imply no more than that the substantial requirements of justice shall not be
violated. He is not a judge in the proper sense of the word; but he must give the parties an
opportunity of being heard before him and stating their case and their view. He must
give notice when he will proceed with the matter and he must act honestly and impartially
and not under the dictation of some other person or persons to whom the authority is not
given by law. There must be no malversation of any kind. There would be no decision within
the meaning of the statute if there were anything of that sort done contrary to the essence of
justice”.

9. Lord Selbourne also added that the essence of justice consisted in requiring that all parties
should have an opportunity of submitting to the person by whose decision they are to be
bound, such considerations as in their judgment ought to be brought before him. All these
cases lay down the very important rule of natural justice contained in the oft-quoted phrase
'justice should not only be done, but should be seen to be done’. 

10. Concept of natural justice has undergone a great deal of change in recent years. Rules of
natural justice are not rules embodied always expressly in a statute or in rules framed
thereunder. They may be implied from the nature of the duty to be performed under a statute.
What particular rule of natural justice should be implied and what its context should be in
a given case must depend to a great extent on the fact and circumstances of that case, the
frame-work of the statute under which the enquiry is held. The old distinction between a
judicial act and an administrative act has withered away. Even an administrative order which
involves civil consequences must be consistent with the rules of natural justice. Expression
‘civil consequences’ encompasses infraction of not merely property or personal rights but of
civil liberties, material deprivations, and non-pecuniary damages. In its wide umbrella comes
everything that affects a citizen in his civil life.

11. Natural justice has been variously defined by different Judges. A few instances will
suffice. In Drew v. Drew and Lebura (1855(2) Macg. 1.8, Lord Cranworth defined it as
‘universal justice’. In James Dunber Smith v. Her Majesty the Queen (1877-78(3) App.Case
614, 623 JC) Sir Robort P. Collier, speaking for the judicial committee of Privy council, used
the phrase ‘the requirements of substantial justice’, while in Arthur John Specman v.
Plumstead District Board of Works (1884-85(10) App.Case 229, 240), Earl of Selbourne,
S.C. preferred the phrase ‘the substantial requirement of justice’. In Vionet v. Barrett
(1885(55) LJRD 39, 41), Lord Esher, MR defined natural justice as ‘the natural sense of what

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is right and wrong’. While, however, deciding Hookings v. Smethwick Local Board of Health
(1890 (24) QBD 712), Lord Fasher, M.R. instead of using the definition given earlier by him
in Vionet’s case (supra) chose to define natural justice as ‘fundamental justice’. In Ridge v.
Baldwin (1963(1) WB 569, 578), Harman LJ, in the Court of Appeal countered natural
justice with ‘fair-play in action’ a phrase favoured by Bhagawati, J. In Maneka Gandhi  v.
Union of India (1978 (2) SCR 621). In re R.N. (An Infant) (1967 (2) B 617, 530), Lord
Parker, CJ, preferred to describe natural justice as ‘a duty to act fairly’. In Fairmount
Investments Ltd. v. Secretary to State for Environment (1976 WLR 1255) Lord Russell of
Willowan somewhat picturesquely described natural justice as ‘a fair crack of the whip’
while Geoffrey Lane, LJ. In Regina v. Secretary of State for Home Affairs Ex Parte
Hosenball (1977 (1) WLR 766) preferred the homely phrase ‘common fairness’.

12. How then have the principles of natural justice been interpreted in the Courts and within
what limits are they to be confined? Over the years by a process of judicial interpretation two
rules have been evolved as representing the principles of natural justice in judicial process,
including therein quasi-judicial and administrative process. They constitute the
basic elements of a fair hearing, having their roots in the innate sense of man for fair-play and
justice which is not the preserve of any particular race or country but is shared in common by
all men. The first rule is ‘nemo judex in causa sua’ or ‘nemo debet esse judex in propria
causa sua’ means that, ‘no man shall be a judge in his own cause’. Coke used the form
‘aliquis non debet esse judex in propria causa quia non potest esse judex at pars’ The form
‘nemo potest esse simul actor et judex’, that is, ‘no one can be at once suitor and judge’ is
also at times used. The second rule is ‘audi alteram partem’, that is, ‘hear the other side’. At
times and particularly in continental countries, the form ‘audietur at altera pars’ is used,
meaning very much the same thing. A corollary has been deduced from the above two rules
and particularly the audi alteram partem rule, namely ‘qui aliquid statuerit parte inaudita
alteram actquam licet dixerit, haud acquum facerit’ that is, ‘he who shall decide anything
without the other side having been heard, although he may have said what is right, will not
have been what is right’or in other words, as it is now expressed, ‘justice should not only
be done but should manifestly be seen to be done’.

Right to legal representation

Justice T .H .Mathivanan,Judge ,Madras High Court made the following observations:

In a participatory democracy, it is essential that citizens have faith in their institution. A

judiciary that is seen as fair and independent is an important component in sustaining their
trust and confidence. An impartial independent judiciary is the guardian of individual rights
in a democratic society. In order for citizens to have faith in their court system, all people
must have access to the courts when necessary. The Courts in criminal and civil functioning
in our Nation must see, how the legal profession contributes to making 'equal justice for all' a
reality. Citizens agree to limitation on their freedom in exchange for peaceful coexistence,

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and they expect that when conflicts between citizens or between the state and citizens arise,
there is a place that is independent from undue influence, that is trustworthy, and that has
authority over all the parties to solve the disputes peacefully.

It is also the responsibility of the State to ensure that fair and impartial justice is made
available at the door steps of the poor and economically weaker sections irrespective of their
caste, creed, religion, geographical position at free of cost. A fundamental value of Indian
system of justice is that the stability of our society depends upon the ability of the people to
readily obtain access to the courts, because the court system is the mechanism recognized and
accepted by all to peacefully resolve disputes. Denying access to the courts forces dispute
resolution into other arenas and results in vigilantism and violence. As envisaged under
Article 15 of the Constitution of India, the State shall not discriminate against any citizen on
grounds only of religion, race, caste, sex, place of birth or any of them. Based on this cordinal
principle, no citizen shall on the grounds only of religion, race, caste, sex, place of birth or
any of them, be subject to any disability.

Article 14 of the Constitution of India provides that the State shall not deny to any person
equality before the law or the equal protection of the laws within the territory of India.
Human equality at the spiritual level has been preached and practiced in our country since
ages. This is the meaning of, and is derived from, the Vedantic teaching of the same divine At
m a n in all beings-integral, inalienable and full, and the samatvam and the sama-darsitvam ,
equality and sameness of vision, flowing from it.

Equality has been and is the single greatest craving of all human being sat all points of time.
It has inspired many a great thinker and philosopher. All religious and political schools of
thought swear by it, including the Hindu religious thought, if one looks to it ignoring the later
crudities and distortions.

However, to provide and avail the free legal assistance certain difficulties and challenges are
being experienced in our nation. The issues with regard to the provisions of free legal
assistance to the needy people getting increased day-by-day and the challenges have also
been taking it's growth rapidly. Under these circumstances, the National Legal Services
Authority, being the Strewed, being a fore front warrior, is taking relentless effort to find out
solutions with the active assistance of the Government both Central and State to tackle the
situation.

Right To Free Legal Aid

Legal aid to the poor and weak is necessary for the preservation of rule of law which is
necessary for the existence of the orderly society. Until and unless poor illiterate man is not

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legally assisted, he is denied equality in the opportunity to seek justice. Therefore as a step
towards making the legal service serve the poor and the deprived; the judiciary has taken
active interest in providing legal aid to the needy in the recent past. The Indian Constitution
provides for an independent and impartial judiciary and the courts are given power to protect
the constitution and safeguard the rights of people irrespective of their financial status. Since
the aim of the constitution is to provide justice to all and the directive principles are in its
integral part of the constitution, the constitution dictates that judiciary has duty to protect
rights of the poor as also society as a whole. The judiciary through its significant judicial
interventions has compelled as well as guided the legislature to come up with the suitable
legislations to bring justice to the doorsteps of the weakest sections of the society. Public
Interest Litigation is one shining example of how Indian judiciary has played the role of the
vanguard of the rights of Indian citizens especially the poor. It encouraged the public spirited
people to seek justice for the poor. For that Supreme Court relaxed procedure substantially.
Apart from Public Interest Litigation and judicial activism, there are reforms in the judicial
process, where it aims to make justice cheap and easy by introducing Lok Adalat system as a
one of the methods to provide free legal aid and speedy justice at the door steps of the poor.
In this article the author highlights the importance of free legal aid in a constitutional
democracy like India where a significant section of the population has still not seen the
constitutional promises of even the very basic fundamental rights being fulfilled for them.

Legal Aid: The Concept

Legal Aid implies giving free legal services to the poor and needy who cannot afford the
services of a lawyer for the conduct of a case or a legal proceeding in any court, tribunal or
before an authority. Legal Aid is the method adopted to ensure that no one is deprived of
professional advice and help because of lack of funds. Therefore, the main object is to
provide equal justice is to be made available to the poor, down trodden and weaker section of
society. In this regard Justice P.N. Bhagwati rightly observed that:

“The legal aid means providing an arrangement in the society so that the missionary of
administration of justice becomes easily accessible and is not out of reach of those who have
to resort to it for enforcement of its given to them by law, the poor and illiterate should be
able to approach the courts and their ignorance and poverty should not be an impediment in
the way of their obtaining justice from the courts. Legal aid should be available to the poor
and illiterate, who don't have access to courts. One need not be a litigant to seek aid by
means of legal aid.”

Free Legal Aid in India

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The Supreme Court of India got a major opportunity to make an emphatic pronouncement
regarding the rights of the poor and indigent in judgment of Hussainara Khatoon where the
petitioner brought to the notice of Supreme Court that most of the under trails have already
under gone the punishment much more than what they would have got had they been
convicted without any delay. The delay was caused due to inability of the persons involved to
engage a legal counsel to defend them in the court and the main reason behind their inability
was their poverty. Thus, in this case the court pointed out that Article 39-Aemphasized that
free legal service was an inalienable element of reasonable, fair and just‘ procedure and that
the right to free legal services was implicit in the guarantee of Article 21.

Two years later, in the case of Khatri v. State of Bihar the court answered the question the
right to free legal aid to poor or indigent accused who are incapable of engaging lawyers. It
held that the state is constitutionally bound to provide such aid not only at the stage of trial
but also when they are first produced before the magistrate or remanded from time to time
and that such a right cannot be denied on the ground of financial constraints or administrative
inability or that the accused did not ask for it. Magistrates and Sessions Judges must inform
the accused of such rights. The right to free legal services is an essential ingredient of
reasonable, fair and just procedure for a person accused of an offence and it must be held
implicit in the guarantee of Article 21 and the State is under a constitutional mandate to
provide a lawyer to an accused person if the circumstances of the case and the needs of
justice so require.The state cannot avoid this obligation by pleading financial or
administrative inability or that none of the aggrieved prisoners asked for any legal aid.

Legal Aid in India: Statutory Recognition

Though there was a statutory procedure providing free legal aid by appointing the advocate
for defending criminal case and by exempting court fees in civil cases, it was not really
making any significant impact on the ability of the underprivileged people to get the judicial
redressal for their grievances. Hence under tremendous constitutional persuasion from the
Supreme Court the Legal Services Authorities Act, 1987 was passed by the parliament of
India. The Act prescribes the criteria for giving legal services to the eligible persons. It makes
a person eligible for assistance under the act if he is -

(a) a member of a Scheduled Caste or Scheduled Tribe;

(b) a victim of trafficking in human beings or begar as referred to in Article 23 of the

Constitution;

(c) a woman or a child;

(d) a mentally ill or otherwise disabled person;

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(e) a person under circumstances of undeserved want such as being a victim of a mass
disaster, ethnic violence, caste atrocity, flood, drought, earthquake or industrial disaster; or

(f) an industrial workman; or

(g) in custody, including custody in a protective home or in a juvenile home.

(h) of in a psychiatric hospital or psychiatric nursing home within the meaning of clause (g)
of section 2 of the Mental Health Act, 1987;

(i) A person whose annual income less than rupees fifty thousand or such other higher
amount as may be prescribed by the State Government.This limit on income can be increased
by the state governments.

Limitation as to the income does not apply in the case of persons belonging to the scheduled
castes, scheduled tribes, women, children, handicapped, etc. Thus by this the Indian
Parliament took a step forward in making the legal aid possible in the country.

According to the Act the 'court' is a civil, criminal or revenue court and includes any tribunal
or any other authority constituted under any law for the time being in force, to exercise
judicial or quasi-judicial functions. Under the Act 'legal service' includes the rendering of any
service in the conduct of any case or other legal proceeding before any court or other
authority or tribunal and the giving of advice on any legal matter.

Legal Services Authorities after examining the eligibility criteria of an applicant and the
existence of a prima facie case in his favour provide him counsel at State expense, pay the
required Court Fee in the matter and bear all incidental expenses in connection with the case.
The person to whom legal aid is provided is not called upon to spend anything on the
litigation once it is supported by a Legal Services Authority.

Ex Parte Orders
Ex parte orders refer to motions, hearings or orders granted on the request of and for the
benefit of one party only. This is an exception to the basic rule of court procedure that both
parties must be present at any argument before a judge, and to the otherwise strict rule that an
attorney may not notify a judge without previously notifying the opposition. Ex parte matters
are usually temporary orders like a restraining order or temporary custody pending a formal
hearing or an emergency request for a continuance. Most jurisdictions require at least a
diligent attempt to contact the other party's lawyer of the time and place of any ex parte
hearing.

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 When Are Ex Parte Orders Allowed?
The Supreme Court of India in a recent judgment, Ramrameshwari  Devi & Ors. vs Nirmala
Devi & Ors. has laid down guidelines for the grant of ex parte orders.

The present dispute involved a 40 year old disputed property; the Appellants had
continuously filed frivolous appeals before the courts even after the matter had been decided.
Justice Dalveer Bhandari, the presiding judge laid down the following guidelines which the
courts should adopt in preventing such litigation and also cautioning courts on the grant of
indiscriminate ex parte orders:

 The Presiding Judge must exercise due care, caution, diligence and attention while
framing the issues for the suit so as not to include issues already decided by other
courts in violation of the principle of res judicata.
 The trial judge must carefully scrutinize, check and verify the pleadings and the
documents filed by the parties.
 The court should order discovery and production of the documents at the earliest so as
to focus on the main controversies of the case and arriving at the truth of the matter.
  Courts should impose realistic costs on parties who engage in frivolous litigation. In
our present system, courts do not impose penalties on the parties who prolong the suit.
Thus unscrupulous parties are incentivised to carry out a cost-benefit analysis
between the likelihood of tiring the other party into settlement and prolonging the
case to such an extent that the other party suffers. In the present case, the court
imposed Rs. 2 lakhs as costs on the Appellants for unnecessarily prolonging the
dispute.
  Courts have to be very careful in imposing ex parte orders. If an injunction has been
granted on the basis of false pleadings or forged documents (which is very often the
case in India) courts must impose costs on the litigants.
 Courts should give short notice to the Defendants and hear both parties before passing
ex parte interim orders since the experience has been that once granted these orders
cause havoc and getting them modified is next to impossible.
 In an exceptional case where the court has to grant an ex-parte injunction it must
record in the order that if the suit is dismissed the petitioner will have to pay full
restitution, actual or realistic costs and mesne profits.
  If ex parte order is granted then all endeavours should be made to dispose the
application for injunction as expeditiously as possible, preferably as soon as the
defendant appears in court or another option available is, to limit the life of the ex
parte order for a week so as to prevent any incentive of prolonging the matter on the
plaintiff’s part.

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 Can Ex Parte Orders Violate The Rule Of Audi Alteram Partem?

Whenever the ex parte decision is given ,without stating proper reasons and without a
proper backing ,then in such a case ex parte orders violate the rule of audi alteram partem
or in a larger sense ,the principals of natural justice.

Conclusion

In every civilized society there are two sets of laws, mainly substantive laws and procedural
laws. Substantive laws determine the rights and obligations of citizens. Procedural laws
prescribe the procedure for the enforcement of such rights and obligations. Of the two,
substantive laws are no doubt more important. But the efficacy of substantive laws actually
depends upon the quality of the procedural laws. Unless the procedure is simple, expeditious
and inexpensive, the substantive laws, however good, are bound to fail in their purpose and
object.
The Civil Procedure Code is an indispensable instrument of the country today to tackle the
problems in procedure regarding civil judicial administration. The Code has served the
country in more ways than anticipated by its makers. There have been several amendments
and there is scope for new amendments in the Code. The concept of appearance and non-
appearance of parties have been given space in the Code respecting the principles of natural
justice, fair play etc. Each party gets his rightful chance to defend himself and present his
case before the court. The doctrine of fair hearing or audi alteram partem is also implied here.

The defendant is served the summons to appear before the court and submit to the jurisdiction
of the court. The summons is a way of informing the defendant about the complaint by the
plaintiff and the date of hearing of the suit. The defendant is bound by the summons to appear
in court either personally or through his legal representatives on the date prescribed in the
summons. If the defendant fails to appear he should prove that there was “sufficient cause”
for his non-appearance. There is no standard rule laid down for judging what is ‘sufficient’
and what is not. It depends on the facts and circumstances of each case. Order IX elaborates
on the procedure to be adopted by the court and the course of law to be followed in different
situations which have been dealt with in detail in this project. The concept of ex parte decree
belongs particularly to Order IX of Civil Procedure Code, 1908 only.

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 Bibliography

1.www.indiankanoon.org

2.www.manipurtimes.com

3.www.thefreedictionary.com

4.www.mightylaws.in

5.en.wikipedia.org

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