Upholding the “principle of natural justice” in corporate India

India’s legal ecosystem has evolved steadily over the last many decades, bringing forth social, economic, criminal and commercial matters that demanded fair hearing, deliberation and result. The concept of “natural justice” or rule against bias can be deemed as one of the foundational elements of the global justice systems.

The Indian constitution does not have the phrase “principle of natural justice”’, however its ingredients are deeply embedded in Article 14 and 21 of the same. Here, Article 14 ensures equality before the law and equal protection of law to all citizens, while, Article 21 guarantees right to life and liberty. Any violation of a citizen’s fundamental rights comes under Articles 32, 226, and 136, which also comprises “principles of natural justice”.

Organizations and their legal teams will need to tackle risks related to fraud or corruption in line with the confines of the legal system. If an unethical activity is unearthed, legal and compliance teams (in consultation with external experts) conduct interviews with employees that are potential ‘suspects’. In the lifecycle of a corporate investigation, these interviews are conducted right at the end of an investigation to confront the potential ‘suspect’ with the available evidence against them and record the explanation in an impartial manner. This process has to be sacrosanct and is a reasonable means of investigation based on the principle of natural justice. This enables the individual to be given a fair chance to offer an explanation on the (civil or criminal) charges against them.

Below are some steps that can be taken by forensic professionals when questioning an employee that may be a potential fraudster –

  • The interviewer should be open mind as any biased pattern will be against the principle of natural justice
  • The interview should be carried out by listening patiently to the individual. There should be an amicable discussion but at the same time, the ‘suspect’ should be confronted with the relevant facts which have been gathered during the investigation process.
  • The interviewer should exhibit objectivity, and never ask questions with the sole purpose of obtaining an admission of guilt from the individual
  • Based on the ‘principle of natural justice’, the interview should be purely conversational
  • The interview process should have the individual in question offer information voluntarily. The investigator in such a scenario should only gently steer the topic so the discussion remains objective.
  • The surrounding environment should have a pleasant and non- hierarchical vibe
  • The interviewer should not dominate the conversation through hierarchical techniques, leading to an uncomfortable situation
  • Interviewer should be flexible with the individual, offering freedom and time to recollect or gather information through other sources
  • It is important to highlight that the entire process should primarily be a voluntary act and in a friendly atmosphere since the interviewer has to seek co-operation from the individual

(Devendra Pardeshi, Director, Forensic & Integrity Services has co-authored the above post)