Principles Of Natural Justice Research Articles

The Right to Silence Under Scrutiny: Unveiling the Significance of Section 313 of the Code of Criminal Procedure of India

Abstract The often-overlooked provision of criminal law, which holds significant importance is section 313 of the Code of Criminal Procedure 1973. Section 313 grants the accused an opportunity to provide their statement, ensuring their right to be heard and preventing self-incrimination. This article explores the background, evolution, and objectives of section 313 CrPC, as well as its alignment with the principles of natural justice. The main aim of the article is to demonstrate how India still falls short in upholding the right to silence as per section 313, through a detailed analysis of various judgments passed by the Supreme Court of India, and laws enacted in other jurisdictions around the world. The article addresses the issue of Indian courts using adverse inferences from an accused person’s silence, which conflicts with Article 20(3) of the Indian Constitution. It argues that drawing such inferences should be reconsidered by the courts, as it contradicts important legal principles and undermines the right to a fair trial.

Judicial Review of Police Administrative Action in India

The Constitution specifies that police are a matter for the states to handle. As a result, there are police forces in all 29 of the states. In order to aid the states in maintaining order, the federal government is permitted to keep its own police force. Because of this, it has seven primary police forces and various police organisations for specific responsibilities including collecting information, investigating, conducting research and preserving records, as well as police training.... Enforcing laws, conducting investigations, and providing a safe haven for citizens are all important responsibilities of law enforcement agencies. Having a well-equipped police force in a vast and populous nation like India is critical to ensuring the safety and security of its citizens. Even more important is the fact that they must be given the operational independence to carry out their duties competently, while taking responsibility for either unsatisfactory performance or abusing authority. This paper begins by giving an idea about the discretionary powers given to administrative authorities and that these powers needs to be checked via judicial control over these powers. Police being one such administrative agency is subjected to judicial review for their actions in that capacity. The article then goes on to discuss about the supremacy of rule of law in any action performed. The actions of any agency are judged on various factors including their compliance to doctrine of ultra vires and principles of natural justice. The scope of the doctrine is very wide and any action is subjected to judicial review on few grounds highlighted in this article. Lastly the article talks about the relief of judicial review that can be sought through invoking various writs.

The Application of The Basic Principles of Waqf to Intellectual Property Rights (IPR) in Indonesia

Intellectual Property Rights (IPR) are rights owned by a person or legal entity to protect their work. The basic principles and arrangements of IPR come from the western world, among others regulated in various international treaties, while the basic principles and arrangements of waqf come from Islam. The purpose of this study is to examine and analyze the basic principles of waqf and the basic principles of Intellectual Property Rights (IPR). Conducting a comparison between the two principles which then results in the application of the basic principles of waqf to intellectual property rights. This research uses a normative juridical research method with a problem approach including a statutory approach, an analytical approach and a conceptual approach. Research specifications are focused on researching legal principles and legal synchronization. The result of this research is that the basic principles of IPR can be applied to the basic principles of waqf. The principles that can be applied include: authority rights, private and market rights, sustainability, TRIPs binding, as well as the principle of natural justice, the economic argument, the cultural argument, and the social argument.

Evaluating the perceived usefulness and fairness of forensic accounting and investigation standards

PurposeThis study aims to investigate the perceived willingness to adopt and use Forensic Accounting and Investigation Standards (FAIS) in Forensic Accounting and Investigation (FAI) assignments. The study also analyses the usefulness of FAIS in achieving the principle of natural justice (PNJ) concerning fairness.Design/methodology/approachThe respondents comprised 118 accounting professionals whose online survey responses were analyzed descriptively. This study also uses a 2 × 2 contingency analysis representing two levels of usefulness and fairness.FindingsThe results revealed that FAIS 410 received the highest mean rating while FAIS 240 received the lowest mean rating in willingness to adopt and use FAIS, and most of the standards were related to the PNJ concerning fairness. The study shows the accounting professionals’ readiness to adapt and flourish with the help of these Standards in FAI assignments.Practical implicationsThe findings of this study will increase practitioners’ awareness of the usefulness and fairness of FAIS, which will enhance their understanding of the significance of implementing these newly developed standards to harmonize the investigative process in forensic audits. Additionally, the findings may encourage regulators, researchers, accounting bodies and their members to adopt and conduct further FAIS studies that can advance financial crime prevention, detection and investigation knowledge.Originality/valueThis paper substantially contributes to the literature as it is the first to examine the usefulness and fairness of “Forensic Accounting and Investigation Standards” in the context of forensic audits and investigations, which has not been previously explored.

THE FUNDAMENTAL PRINCIPLES OF RECUSAL OF A JUDGE AT COMMON LAW: RECENT DEVELOPMENTS

The common-law principle that no one should be a judge in his or her own cause is the basis upon which the rule against bias or apprehension of bias was founded. In constitutional parlance, this translates into the requirement that a judge or anyone under a duty to decide anything must be impartial, which is, in turn, the foundation for the recusal of a judge in adjudication. This cardinal principle of adjudication has produced an abundant case law indicating the circumstances in which a judge should, or ought to, recuse him- or herself on the ground of bias or reasonable apprehension of bias in common-law jurisdictions. This article focuses on the fundamental principles guiding the notion of recusal in the common-law courts. There is, first, a presumption of judicial impartiality, which is the preliminary but important hurdle an applicant for recusal of a judge must overcome. The inquiry proceeds no further if this presumption is not successfully rebutted early in the proceeding. The second hurdle is the test for recusal that the facts put forward in support of the allegation of bias or apparent bias must meet. This test is a two-dimensional reasonable standard test of a reasonably informed observer who would reasonably entertain an apprehension that the judge would (not might) be biased towards one party in the case. This test enables a court to determine whether the allegation of lack of judicial impartiality in any given case could lead to the recusal of the judge. The discussion that ensues is based on decided cases selected from specific Commonwealth jurisdictions where such matters have recently been dealt with. Indeed, these cases show that recusal of a judge in adjudication is, in practical terms, the application of the common-law principle of natural justice that a person cannot be a judge in his or her own cause. It is also a clear manifestation of the age-old adage that justice must not only be done, but must manifestly and undoubtedly be seen to be done.

Natural Justice and its Applicability to Alternate Dispute Resolution

Natural justice signifies fairness in the procedure. It casts a duty on the court and tribunal to ensure fair hearing and to proceed without bias. Principles of natural justice creates confidence among people in the legal system and is crucial for the judicial system of any jurisdiction. The author has discussed applicability of natural justice and its importance to Alternate Dispute Resolution process in the article. bias, natural justice, fair hearing, foreign award, Nemo Judex in Causa Sua, Audi Alteram Partem.

Code of Civil Procedure, Principles of Natural Justice and Fundamental Rights in the context of Special Statutes

Code of Civil Procedure, Principles of Natural Justice and Fundamental Rights in the context of Special Statutes

Principles of Natural Justice: Revisiting History During the Time of Corona

The Principles of Natural Justice is a term widely in use in the legal field and in recent years even in popular dialogue. A phrase heard by every law student, academician, professional and ay other wit some legal acumen. It was popularized by the English Legal System which during the colonial times dispersed it throughout nearly all the commonwealth Nations. The two basic rules, that is, nemo iudex in causa sua (for the adjudging authority to be unbiased) and audi alteram partem (the right to ensure a fair hearing to each party) have come to be universally accepted as the basic requirements to be followed for ensuring that every accused person gets a fair trial and effectively ensures the practice of another widely accepted legal tenet – Innocent until proven Guilty. However, how exactly did these two famous rules come to be of such widespread use and acceptance in an environment where legal tenets are frequently muddled due to contrasting philosophical/jurisprudential opinions and socio-political trends. This paper attempts to trace a brief timeline of certain ancient and certain prominent statesmen, legal luminaries and their works which time and time again embellished the necessity of these Principles throughout human History.

Role of Constitutional Courts in Matters Concerning Contracts by Government and Public Contracts: a Brief Analysis of Case Law

The Article examines the role of constitutional courts in interpreting the constitutional values as far as it relates to rights of individuals and/or contractors vis-a-vis rights and duties cast on the Government and public entities as defined in Article 12, Constitution of India, 1950 so as to balance the competing rights and duties of both. The Article would focus on contracts which can be said to be Government contracts, the focus on the terms of Contract and special emphasis on Law relating to entering into contract by tenders, black listing/ debarment of Contractors by the Public Sector and/or Government organizations, namely, on the contours of Articles 14,19 and 226 read with interpretation of Articles 298 and 299, Constitution of India, 1950 as interpreted in the realm of administrative/ constitutional jurisdiction of the Constitutional Courts. The Article would take the reader to the term contract and the development in area of Constitutional Law augmenting the perfection of Constitutional vision of justice, boundaries of judicial review and contours of deciding whether the contract was enforceable contract or not. The Article would take the reader to the concept of what is blacklisting, and can a company be blacklisted? If the answer is 'Yes' what are the Rules of black listing of contractors. the principles, namely, enunciated by the Apex Court. The principles of natural justice and their applicability to such debarment, was for any collateral purpose or in colorable exercise of power. The principles for which the prerogative writs are invoked time and again, and the remedies for breach of the contractual liability of the Government would also be discussed at length vis-a-vis statutory remedies of preferring suits or appeals and/or the equitable remedy. In the end on the toxicology of debarment vis-a-vis the period during which it would remain in operation is discussed.

Principles of natural justice, their relevance and importance to doctors.

Ceylon Medical Journal (CMJ) is a peer-reviewed, open access journal published quarterly by the Sri Lanka Medical Association in the last week of March, June, September and December each year. The mission of the CMJ is to promote the science and art of medicine and betterment of public health. The Journal publishes original papers and commentaries which have relevance to medicine and allied sciences. The CMJ is committed to maintaining and conforming to the editorial and ethical standards recommended by the International Committee of Medical Journal Editors.

A critical review analysis of the issues arising out of the clinical practice by an infected health care worker

The way communicable diseases do spread from one person to another, depending upon the specific disease or causative infectious agent. Out of these diseases, some are incurable and the health care workers during their practice or otherwise acquire such infections and transmit them further to innocent patients who are unaware of about the health status of health care workers. The rights of an infected health care worker and patients are protected by many laws but in case of conflict of interests between the individual right of the health care worker and life of a patient, then obviously by the principle of natural justice, saving the life of a person from such incurable infection gets the privilege. Therefore, there is a lot of ethical and professional dilemma, arising out, in such a type of scenario, irrespective of concealed or disclosed health status and the question mark is raised on whether clinical practice may be allowed in such cases. Some of the studies show the actual but very little risk of transmission from infected health care workers to patients. Therefore, in the current scenario, many western countries such as USA and UK are following different guidelines in this regard but the same is lacking in India. So, this article critically analyses the various issues arising out of it and thereby justifies the need to have a uniform infection control policy in this regard apart from legal and ethical binding on infected health care workers.

Athletes’ right to a fair trial in ‘non-analytical positive doping cases’: An analysis

ABSTRACT This paper scrutinises the applicability of anti-doping legal regime as adjudicated in the Court of Arbitration for Sport (CAS). It argues that the existing provisions dealing with ‘non-analytical positive doping’ in the World Anti-Doping Agency (WADA) Code are arbitrary and violate the principles of natural justice. While determining ‘non-analytical positive doping violation’, the anti-doping organisations are not required to prove the athlete’s guilt because, under the existing WADA Code, this guilt is presumed regardless of the type of violation. The right to a fair trial is the most fundamental aspect of rule of law meant for the protection of human rights. This paper seeks to examine whether fair trial guarantees are available to the athletes when they are brought for trial before the CAS and National Anti-Doping Organisations. In such cases, CAS panel has evolved a presumption in favour of WADA. The WADA provisions result in a violation of the athlete’s right to a fair trial. The study reveals the existing structural defects of CAS and shortcomings of the WADA Code and issues related to the violation of right to a fair trial.

Tribunals in India - A need for Welfare state

Tribunals are an important mechanism for maintaining justice. Justice is the first and most important concept of any democratic country. Tribunals are the important part of our justice delivery plan and tribunalisation is wide concept and very helpful for providing social justice. In India the tribunal system developed by the constitutional amendments, legislation and by the judicial decision of our apex court. Tribunals are quasi-Judicial bodies and work according to the legal norms and principle of natural justice. The tribunal system is growing day by day with the development of the country. The main reason for the development of tribunals is democratic nature of the country, because a democratic country is more responsible for its citizens. Tribunals provide speedy, costless and quality justice which is our basic human right and a fundamental right. There is needed lot of work for development of tribunal system and make it more independent, efficient and responsible, due to which the main object of its establishment fulfilled to provide justice a proper justice. This article focused on the meaning of Tribunal, development of Tribunals and working different types of tribunals in India.

Challenges Affecting Tribunals in Dispensing Justice: A Kenyan Discourse

This article seeks to elucidate the problems that hinder Tribunals established various acts of parliament from achieving their mandate. The Tribunals are meant to supplement the ordinary court system in the administration of justice. Thus the Tribunals are envisioned to make decisions that promote the tenets of rule of law and the principles of natural justice. This paper seeks to interrogate the nexus between the functions as envisaged through the law and the reality on the ground whether the Tribunals perform their functions as per the spirit of the law.

Internet Suspensions and Separation of Powers: changing the equation

The Internet, a medium of communication, commerce and governance, is increasingly subjected to government control, like absolute Internet Suspensions. India, the world’s largest democracy, has had the largest number of such Suspensions in recent years. This is due to its internet suspension legal regime not conforming to separation of powers. In 2020, the Supreme Court in Anuradha Bhasin, extended constitutional protection to freedom of online expression. However, it failed to address the concentration of power in the Executive, and the Review mechanism being inconsistent with Principles of Natural Justice. The paper draws a comparison to the United Kingdom and the United States jurisdictions which conform to Separation of Powers, through legislative and judicial oversight respectively. These insights are utilized to devise a policy reform for India. The Suspension Rules should be replaced by a validly enacted legislation, with a review mechanism consistent with Principles of Natural Justice and with ex-ante remedies.

Suo Moto Powers of the CCI: A Road Mired with Procedural Potholes

The proliferation of multinational enterprises has created the need for a strong and systematic regulatory process in each jurisdiction. In India, specialised regulators such as the Competition Commission of India have been created for this purpose, and with the aim that special skills and expertise is required for regulating such niche areas and industries. This paper discusses the evolution of the judicial system in India from the days of the British Raj, which has led to the current system of regulation, following which the nature and functions of the Commission are discussed, with particular emphasis on its suo moto powers. The paper proceeds to compare the Commission’s suo moto powers with those of competition regulators of the European Union and Australia. Finally, the paper deliberates on the procedural inadequacies and irregularities committed by the Commission, which have created an environment where the regulatory process followed by it is at odds with the principles of natural justice, resulting in opaqueness and unpredictability for market participants.

The Efficacy of Traditional Dispute Resolution Mechanisms (TDRMS) in Achieving Access to Justice for Marginalised: A Focus on the Kipsigis Community in Kenya

The constitutional recognition of traditional dispute resolution mechanisms (TDRMs) legitimises them as complementary avenues to access to justice in Kenya. However, the lack of clarity regarding the scope of these mechanisms makes it difficult to integrate them with the formal justice systems. An understanding of how the mechanisms work is critical in addressing this lacuna. Using a case study approach, this Article discusses the typology of TDRMs in Kenya, and the disputes involved based on examples from the Kipsigis community. It also outlines the Kipsigis TDRM procedures in both criminal and civil cases. The article also discusses the issue of jurisdiction, various reporting and trial stages, whether there are any appellate bodies, enforcement of awards, compensation, and whether any cases have been referred to courts and vice versa. The purpose of the study is to lay a basis for the analysis of TDRMs from a natural justice perspective with the Kipsigis community as the point of focus. The study found that the Kipsigis TDRMs are considered effective avenues for access to justice for those who lack the means to access courts. The community finds the TDRMs fair as they listen to the parties in an open forum and community members are welcome to participate, unlike judicial processes, which are typically adversarial. Yet, a question arises whether TDRMs, by their nature, meet the principles of natural justice and the rule of law, particularly the threshold set for the protection of the right to a fair trial and equality. This article examines the extent to which the Kipisgis TDRMs blends with the principles of natural justice or procedural fairness, and the rule of law.

Lawyers' Views of Decision-Making in Child Protection Matters: The Tension between Adversarialism and Collaborative Approaches

Outcomes in child protection cases impact substantially on children and families. Decisions in child protection matters must, therefore, be made with due caution and sensitivity. In order for the best outcomes to be achieved for children and their families, research suggests that decisions should be made collaboratively, and proceedings should be less adversarial in nature. At the same time procedural rules should be rigorously adhered to when decisions of a serious nature are being made, particularly where State interference in individuals.' lives has occurred or is being contemplated. Thus, there is a tension in the child protection context between the use of informal dispute resolution methods, and the need to safeguard the rights of children and families. This tension is explored in this paper, with particular reference to the principles of natural justice and the rules of evidence. The discussion is informed by empirical research undertaken with child protection lawyers in Queensland. The authors conclude with some suggestions for reform which reflect the ideal of collaboration without compromising the need for procedural fairness.

Natural Justice: A Jurisprudential Overview

What is found in its natural state is often termed as “just” and “pure”. This is because everything natural around us is believed to be in harmony with each other. The “mother nature” is deemed as an omnipotent force capable of maintaining equilibrium. Any attempt to disturb this equilibrium is viewed with contempt as it is believed the karmic forces of nature would redeem its original state. Natural justice can be viewed through the same organic prism. This paper is an attempt to describe the various views of political and legal philosophers about what is justice. A brief evolution of the rules of natural justice is followed by a Constitutional interpretation of natural justice. Various principles of natural justice have also been described.

Introduction to Natural Justice

Man is a rational animal, what is just and unjust is written in him by nature itself. With the growth of civilization, the problem of harmonizing the social, associational, economic and political relations between governed and government and individuals inter se became more complex. The want of establishing orderly and peaceful society continuously constrained man to be in search of higher norms, which can effectively regulate the human behaviour and ensure justice to the deserved. Though nature has its own law to govern all animate and inanimate life forms, yet its rules are subtle and un-manifest, subtle norms of natural laws were construed differently by individuals according to their own perceptions, self-interests and ideologies. Consequently, time and again, laws were made by the might (ruler) to the disadvantage of the weak (subjects). To protect himself against the excesses of organized power man always appealed to the omnipotent or someone beyond his own creation. The wise man from time to time argued that there are certain principles of justice regarded as fundamental and foundational to almost all legal systems which are called ‘principles of natural justice’. In this sense, natural justice implies fairness, reasonableness, equity and equality. It represents higher procedural principles developed by judges, which shall be followed by the judicial, quasi-judicial and administrative bodies in making a decision affecting the rights or status of an individual. In this milieu, the first segment of the Module is designed to study the meaning of ‘justice’ and ‘natural justice’ in the first place and followed by a brief discussion on the history of the principles of natural justice, both in India and England. The Second part focuses on the fundamental components of natural justice namely, the rule against bias, fair hearing and reasoned decisions. Thereafter, the third segment includes a brief discussion on the principles of natural justice in the Indian Constitution, followed by exclusion of natural justice and concluding remarks. To make content more comprehensible to the readers wherever required illustrations are used, read them carefully.