THE NATIONAL UNIVERSITY OF

ADVANCED LEGAL STUDIES (NUALS)

Administrative law

Project on the topic:

‘Bias’

Made By: M.Vishnu

Roll no.: 603

V’th Semester

Acknowledgement

I extend my sincere thanks to Abhayachandran sir for giving me this topic to work upon and

also helping me throughout the time i was working on this project. This assignment has really

helped me to improve my knowledge in the field of administrative law

My gratitude also extends to each and every person who has helped me in one way or other to

complete this project…..

Index

1. Acknowledgement

2. Index

3. Introduction

4. Personal bias

5. Pecuniary Bias

6. Official bias

7. Departmental Bias

8. Test of Bias

9. Exceptions to the rule against bias

10. Conclusion

11. Bibliography

Introduction

Bias, in general terms is an inclination to present or hold a partial perspective at the expense

of (possibly equally valid) alternatives. Anything biased generally is one-sided, and therefore

lacks a neutral point of view. Another meaning given is ‘anything which tends or may be

regarded as tending to cause such a person to decide a case otherwise on evidence must be

held to be biased.’ In Franklin v. Minister of town and country planning, Lord Thankerton

defines bias as under:

“My Lords, I could wish that the use of the word ‘bias’ should be

confined to its proper sphere. Its proper significance in my opinion is to denote a departure

from the standard of even handed justice which the law requires from those who occupy

judicial office, or those who are commonly regarded as holding a quasi-judicial office, such

as an arbitrator.”

Bias cannot be presumed as a matter of course. In the absence of specific

allegation of bias, courts will not assume of any bias.

The traditional English law recognises two principles of natural justice:

i. Nemo debet esse judex in propria causa : No man shall be a

judge in his own cause, or no man can act as both at the one and the same

time – a party or a suitor and also a judge, or the deciding authority must

be impartial and without bias: and

ii. Audi alteram partem: Hear the other side, or both the sides must be

heard, or no man should be condemned unheard, or that there must be

fairness on the part of the deciding authority.

The first requirement of natural justice is that the judge should be impartial and neutral and

must be free from bias. He is supposed to be indifferent to parties to the controversy. He

cannot act as judge of a cause in which he himself has some interest either pecuniary or

otherwise as it affords the strongest proof against neutrality. He must be in a position to act

judicially and to decide the matter objectively. A judge must be of sterner stuff. His mental

equipoise must always remain firm and undefelected. He should not allow his personal

prejudice to go against his decision making. He must think dispassionately and submerge

private feeling on every aspect of a case.

If the Judge is subject to bias in favour of or against either

party to the dispute or is in a position that a bias can be assumed, he is

disqualified to act as a judge, and the proceedings will be vitiated. This

rule applies to the judicial and administrative authorities required to act

judicially or quasi judicially.

Personal Bias

A number of circumstances may give rise to personal bias. Here judge may be relative, friend

or business associate of a party. He may have some personal grudge, enmity or grievance or

professional rivalry against such party. In view of these factors, there is every likelihood that

the judge may be biased towards one party or prejudiced towards the other.

In Cottle v. Cottle 1939, the chairman of the bench was

a friend of the wife’s family who had instituted matrimonial proceedings

against her husband. The wife had told the husband that the chairman

would decide the case in her favour. The divisional court ordered

rehearing. It later turned out that the chairman was a friend of the wife’s

family.

In Maneklal v. Premchand AIR 1995 S.C 425, a complaint was

filed against Maneklal, an advocate, by Premchand for professional

misconduct. A committee was constituted by the Bar council to enquire into

the allegation. The chairman of the committee who was a senior lawyer had

many years ago appeared on behalf of Premchand in a case. Maneklal

contended that there was a violation of natural justice because there was past

friendship between the chairman and Premchand. The Supreme Court agreed

that there was no real likelihood of bias in this case, but still disqualified the

chairman because Maneklal had developed a reasonable suspicion on him.

In the leading case of A.K. Kraipak v. Union of India, one N

was a candidate for selection to the Indian Foreign service and was also a

member of the Selection Board. N did not sit in the board when his own

name was considered. Name of N was recommended by the board and he

was selected by the Public service commission. The candidates who were

not selected filed a writ petition for quashing the selection of N on the

ground that the principles of natural justice were violated.

Quashing the selection, the court observed: “It is against all canons of justice to make a man

judge in his own cause. It is true that he did not participate in the deliberations of the

committee when his name was considered. But then the very fact that he was a member of the

selection board must have had its own impact on the selection board. Further admittedly he

participated in the deliberations of the board when the claims of his rivals particularly that of

one Mr Basu was considered. He was also party to the preparation of the list of selected

candidates in order of preference. At every stage of his participation in the deliberations of

the selection board there was a conflict between his interest and duty. Under those

circumstances it is difficult to behave that he could have been impartial. The real question is

not whether he was biased or not. It is difficult tom prove the state of mind of a person.

Therefore what we have to see is whether there is a reasonable ground for believing that he

was likely to have been biased. This case is a landmark in the development of administrative

law and it has contributed in a large measure of strengthening of the rule of law in this

country.

Pecuniary BiasWhenever there is a monetary interest involved it is said to be a kind of pecuniary bias. The

adjudicator who is deciding the issue in the proceedings should not have any pecuniary

interest, else the decision is vitiated. The least pecuniary interest in the subject matter of the

litigation will disqualify any person from acting as a judge, even though it is not proved that

the decision is in anyway affected.

In Dr Bonham (1610) 8 Co., Dr Bonham, a doctor of Cambridge University was fined

by the College of Physicians for practicing in the city of London without license of the

college. The Statute under which the college acted provided that fines should go half to the

King and half to the college. The claim was disallowed by Coke C.J as the college had a

financial interest in its own judgement and was a judge in its own cause.

Dimes v. Grant Junction Canal (1852) 3 HL 759: 17 Jur 73, is an

important case in this regard. Lord Cottenham, the judge who sat in a previous case in which

canal company that brought a case in equity against a landowner. Lord Cottenham was later

discovered to have had shares in said company. The case was held stating that although there

was no suggestion that the Lord Chancellor had in fact been influenced by his interest in the

company, no case should be decided by a judge with a financial interest in the outcome. It

was held that the Lord Chancellor was disqualified from sitting as a judge in the case because

he had an interest in the action.

Lord Campbell in this case observed

“No one can suppose that Lord Cottenham could be in the

remotest degree, influenced by the interest that he had in this concern; but it is of the last

importance that the maxim, that no one is to be a judge in his own case, should be held

sacred…and it will have a most salutary influence on tribunals when it is known that this

high court of last resort, in a case in which the lord chancellor of England had an interest,

considered that his decree was on that account a decree not according to law, and was set

aside. This will be a lesson to all inferior tribunals to take care not only that in their decrees

they are not influenced by their personal interest, but avoid the appearance of labouring under

such an influence.”

In Jeejeebhoy v. Asstt. Collector of Thana Air 1965 SC 1096, Chief

Justice Gajendragadkar reconstituted the bench on objection being taken on behalf of

interveners in court on the ground that Chief Justice, who was a member of the bench, was

also a member of the cooperative society foe which the disputed land had been acquired.

However, the rule against bias will not be applied where the judge,

though having a financial interest, has no direct financial interest in the outcome of the case.

Therefore the court in R v. Mulhvihill 1990 did not set aside the conviction of the accused on

charge of robbery in a bank on the ground that the trial judge had shares in that bank. In such

cases unless there is a real likelihood of bias, administrative action will not be quashed.

Official biasThe third type of Bias is official bias or bias as to the subject matter. This may arise when the

judge has a general interest in the subject-matter. This is the most impersonal kind of bias.

The English law on this matter is that unless the objector shows that a judge has acted in an

unusual manner to support his belief, he can’t be disqualified…

Suppose a Minister is empowered to frame a scheme after hearing the

objections is subject to the principles of natural justice insofar as they require affair hearing.

But the minister’s decision cannot be impugned on the ground that he has advocated the

scheme or he is not known to support it as a matter of policy. In fact, the object of giving

power to the minister is to implement the policy of the govt.

The same principle has been accepted in India also. In Gullapalli Nageshwara Rao v.

APSRTC AIR (1959) S.C 308, a scheme of nationalisation of motor transport was notified

by the state government inviting objections. The objections filed by the persons were heard

by Secretary, Department of Transport. The entire material was placed before the chief

minister who was also in charge of transport for approval. The validity of the scheme was

challenged on the ground that the person who heard the objections, viz, the secretary to

government was the same person who had heard the objections was in the same person who

had initiated the scheme and therefore, he was biased. Upholding the contention the Supreme

Court observed that the official who heard the objections was in substance a party to the

dispute and hence the principles of natural justice were violated.

In the second Gullapalli case, when the hearing

was given by the minister, the Supreme Court held that the proceedings were not vitiated by

bias. The court pointed out that there was distinction between the functions of a secretary and

those of minister. While the former was part of the department, the latter was only primarily

responsible for disposal of business pertaining to that department.

Departmental Bias Departmental Bias arises when the functions of judge and prosecutor are combined in the

same department. The difficulty in combining the adjudication and prosecution functions in

the same person is that the accused may be prejudiced and he may be prone to accept

whatever proof is produced by the other party sponsoring conviction.

In Parthasarathy v. State of A.P AIR 1973 SC 2701, the person

who framed charges also acted as the enquiry officer in the disciplinary proceedings against a

civil servant. The Supreme Court held it to be wrong.

In Meenglass tea estate V. Workmen A.I.R. 1963 S.C. 1719, the role of judge,

prosecutor and witness was played by the same person in an enquiry. In this case the

respondents were prosecuted for an alleged offence of assaulting the manger. The manager

complained about the assault to the owner and thereby prosecution was launched by the

manger. The same manger was asked by the owner as the presiding officer in the domestic

enquiry to enquire into the alleged assault. Thus he acted as a judge. He took his own

evidence for proving the assault and reported that the allegations were proved. The Supreme

Court quashed the findings of the enquiry on the ground of personal bias.

Test of BiasThe court’s use the real likelihood test or the reasonable apprehension test to find out bias. A

pecuniary interest, however small it may be, disqualifies a person from acting as a judge.

Other interest, however small it may be, disqualifies a person from acting as a judge. Other

interests however do not stand on the same footing. Here the test is whether there is a real

likelihood of bias in the judge.

Real likelihood of bias means at least substantial possibility of

bias. For a judgement to be bias-free the court will have to judge the matter as a reasonable

man would judge of any matter in the conduct of his own business.

In words of Lord Hewart, the answer to the question whether there was a real

likelihood of bias ‘depends not upon what actually was done but upon what might appear to

be done. Nothing is to be done which creates even a suspicion that there has been an

improper interference with the course of justice.

In India, the real likelihood test is applied by the Supreme Court in A.K.

Kraipak case. The court observed:

“The Real question is not whether he was biased. It is the difficult to prove that state of mind

of a person. Therefore, what we have to see is whether there is reasonable ground for

believing that he was likely to have been biased…. a mere suspicion of bias is not sufficient.

There must be a real or reasonable likelihood of bias.”

In Ashok Kumar Yadav vs. State of Haryana, the court through Bhagwati C.J

has very succinctly spelled out the test of reasonable likelihood. He observed:

“It is one of the fundamental principles of jurisprudence that no man can be a judge in his

own cause and that if there is a reasonable likelihood of bias it is 'in accordance with natural

justice and common sense that the justice likely to be so biased should be incapacitated from

sitting". The question is not whether the judge is actually biased or in fact decides partially,

but whether there is a real likelihood of bias. What is objectionable in such a case is not that

the decision is actually tainted with bias but that the circumstances are such as to create a

reasonable apprehension in the mind of others that there is a likelihood of bias affecting the

decision. The basic principle underlying this rule is that justice must not only be done but

must also appear to be done and this rule has received wide recognition in several decisions

of this Court. It is also important to note that this rule is not confined to cases where judicial

power stricto sensu is exercised. It is appropriately extended to all cases where an

independent mind has to be applied to arrive at a fair and just decision between the rival

claims of parties.”

In Manek Lal vs. Dr Premchand the court laid down the bias in following words:

:In such cases the test is not whether in fact a bias has affected the judgement; the test is

always is and must be whether a litigant could reasonably apprehend that a bias attributable

to a member of the tribunal might have operated against him in the final decision of the

authority.”

So as to the real test of likelihood of bias, what is relevant is reasonableness of the

apprehension in that regard in the mind of the party.

Exceptions to the rule against BiasThere are two exceptions two the rule against bias:

(i)Doctrine of necessity: Where bias is apparent but the same person who is likely to be

biased has to decide, because of the statutory requirement or the exclusiveness of a

competent authority to decide, the courts allow such person to decide. In Ashok Kumar

Yadav v State of Haryana, the court held that a member of the public service

commission could not entirely disassociate himself from the process of selection just

because a few candidates were related to him. He should disassociate himself from the

selection of the persons related to him but need not disassociate from the selection of

other candidates. Though his being on the selection committee could create a likelihood

of bias in favour of his relations yet, since the Public service commission is a

constitutional authority, such a member can’t be entirely excluded from its work. In the

Case of Institute of Chartered Accountants v. D.L. Ratna AIR 1987 SC 71,

the court concluded that the president and the vice president of the institute need not be

required to sit on a disciplinary committee as well as the governing council. The court

therefore asked the government to get the law amended so that they were not obliged to

sit on both the bodies. Here, the doctrine of necessity could have been invoked to save the

infirmity caused by bias. In order to successfully invoke the doctrine of necessity, it is

essential to show that despite the bias, the person objected to has to decide that matter

because no one else could decide it,

One such case was Mary Teresa Dias v. Acting Chief Justice AIR

1985 Ker 245, a committee of twelve judges of the High court of Kerala participated

in a meeting to select candidates for appointment as district judges. A female candidate,

who was not selected, impugned the validity of the selections in a writ petition before the

Kerala High Court. The matter came up before a bench consisting of 3 judges who were

among those twelve who had been on the committee for selection. The petitioner

contended that the judges who had participated in the selection ought not to sit on the

bench to hear the writ petition against the very selection. The Kerala High Court rejected

this contention on various grounds.

a) The selection made by the committee was an administrative function of the High

Court, and the judges had participated in it and taken a decision, which was

institutional and not personal.

b) The High Court could not be said to have prejudiced just because they had not

selected a particular candidate.

c) When the High court recommended the selection of candidates for judicial posts and

it was challenged, it was bound to consider the validity of such selection as being

necessary.

In T.N. Seshan v. Union of India (1995) 4 SCC 611 the chief

justice observed thus:

“We must have a clear conception of the doctrine of absolute

necessity. It is well settled that the law permits certain things to be done as a matter of

necessity which it would otherwise not countenance on the touchstone of judicial

propriety…It is often invoked in cases of bias where there is no other authority to

judge or decide the issue.”

(ii)Waiver: An allegation of Bias should be raised at a proper time. If a party knew of

disqualification arising out of bias in the adjudication and kept silent, his right to object is

lost by the principle of waiver. But sometimes, an individual may not be in a position to

object earlier because of fear or ignorance, in such cases the courts may not apply the

principle of waiver.

Conclusion Every kind of preference is not sufficient to vitiate an administrative action. If the

preference is rational and unaccompanied by consideration of rational interest, pecuniary or

otherwise, it would not vitiate the decision. Similarly, there must be a real likelihood and not

a mere suspicion of bias, before the proceedings can be quashed on the ground of bias. This

apprehension must be judged from a healthy, reasonable and average point of view and not a

mere apprehension and a vague suspicion of whimsical capricious and unreasonable people.

The proper approach for court in such cases is not to look into his own mind and ask “am I

biased?” But to look into the mind of the party before it. The court must look at the

impression which would be given to the other party. Therefore the test is not what actually

happened but the substantial possibility of that which appeared to have happened .As the

justice is rooted in the minds of the people and it is destroyed and it is destroyed when the

right minded people go away thinking that the judge is biased.

Bibliography1. C.K. Takwani “Lectures on Administrative Law”, Eastern Book Company

2. I.P. Massey “Administrative Law”, Eastern Book Company

3. Academy of Legal Publications “Administrative Law”

4. www.legalserviceindia.com

5. Indiankanoon.org