Explained: Principles Of Natural Justice And How They Apply Under The POSH Act

Written by: Avanti Deshpande

Principles of Natural Justice are fundamental rules of procedure. They are important concepts that are grounded in Article 14 (Right to Equality) and Article 21 (Right to Life and Liberty) of the Constitution of India. They act as a check on the undemocratic or authoritarian use of power and ensure that justice is secured. This part will briefly discuss the important principles of natural justice in the context of the POSH Act.

1) Nemo Judex In Causa Sua – Rule Against Bias

The Latin maxim ‘nemo judex in causa sua’ can be translated to ‘one cannot be a judge in his own cause’. This principle essentially means that a deciding authority must be neutral and impartial while deciding any case. In case the judge or adjudicator (the person presiding over or judging a dispute) is suspected of being prejudiced or biased, that is grounds for their disqualification. The three types of bias in this instance are as follows:

A. Pecuniary Bias

A pecuniary bias means, when the judge has a monetary (related to money) interest in the subject matter of the dispute or case. Such a bias may be direct or even indirect/ remote. Even a small indication of pecuniary interest in a case would disqualify a person from deciding on the matter. Pecuniary bias is not to be confused with bribery.

Bribery would be the judge/adjudicator receiving money to decide the case in the favour of one party. An example of pecuniary bias is when the judge/adjudicator would benefit from a financial gain with the case being decided in favour of one of the parties. When conducting IC investigations, a member of the IC could stand to gain a promotion if they decide on a matter a certain way.

B. Personal Bias

Personal bias arises when one of the affected parties is a relation of the judge or has a relationship such as a friendship, a business or professional relationship with the judge or the person adjudicating the matter.

This is also equally true negatively, i.e., where the judge holds a personal grudge, has some enmity or even professional rivalry with one of the parties in the matter, personal bias is likely to seep into their decision. Such instances of personal bias which lead to display of prejudice in the decision making process should be avoided at all costs.

During POSH investigations, personal biases can come in, if an IC member has or used to have a strong rapport or vice versa, with the complainant or respondent.

C. Subject matter/Official bias

Bias as to the subject matter or official bias relates to the behaviour of a judge which may affect the impartiality and fairness of the decision in the matter. Subject matter bias means the predisposition or inclination of the judge or adjudicator towards a particular issue.

To disqualify a judge/adjudicator on grounds of subject matter bias, there must be a direct and intimate connection between the judge and the issue in the dispute. A mere general interest is not sufficient for disqualification.

In the context of the POSH Act, this principle can be understood to mean that during the assessment of a sexual harassment complaint, the ICC which is adjudicating body, should be impartial and unbiased.

2. Audi Alteram Partem – Rule of Fair Hearing

The Latin maxim ‘audi alteram partem’ essentially means that – No party should be condemned unheard i.e each side should be given a fair opportunity of being heard. This principles denotes the following:

a. A person party to an action is entitled to be heard
b. Such a person is entitled to dispute their opponent’s case, cross examine their opponent’s witnesses, is entitled to call their own witnesses and bring forth their own evidence before the Court
c. He is entitled to know the reasons for the decision given by a Court / Tribunal.

In the context of the POSH Act, this principle means that the person accused of sexual harassment must be given adequate opportunity to be heard, to cross examine the complainant, bring forth relevant evidence related to their defence and is entitled to know the reasons for the decision taken by the Internal Complaints Committee (ICC).

About the author: Avanti Deshpande is a penultimate year law student at ILS Law College, Pune. Her main interest areas are human rights, gender laws and international law.

Hear, Here: It takes work to ensure that a company’s Internal Complaints Committee understand how the principles of natural justice applies when they assess and decide on sexual harassment cases. We can train and guide your IC on how they should conduct the investigations in the most impartial and just way possible. If you’d like to know more about IC training, just give us a call at +91 9582630056!

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