1

INTRODUCTION

‘Natural Justice’ has meant many things to many writers, lawyers, jurists
and systems of law. It has many colours, shades, shapes and form. Rules of natural
justice are not embodied rules and they cannot be imprisoned within the strait jacket
of a rigid formula.

‘Absence of Bias’ or ‘Rule Against Bias’ is one of the principle of ‘Natural

Juastice’ the other being ‘Audi Alteram Partem’. This principle of natural justice
consists of the rule against bias or interest and is based on three maxims :

(1) “No man shall be a judge in his own cause”.

(2) “Justice should not only be done, but manifestly and undoubtedly be seen to be
done”.
(3) “Judges like Caesar’s wife should be above suspicion”.1

Nemo Esse Judex In Propria Causa, i.e.; no one should be made a judge
in his own cause. It is popularly known as the rule against bias. It is the minimal
requirement of the natural justice that the authority giving decision must be
composed of impartial persons acting fairly, without prejudice and bias. Bias means
an operative prejudice, whether conscious or unconscious, as result of some
preconceived opinion or predisposition, in relation to a party or an issue. Dictionary
meaning of the term bias suggests anything which tends a person to decide a case
other than on the basis of evidences.2

The rule against bias strikes against those factors which may improperly
influence a judge against arriving at a decision in a particular case. This rule is
based on the premises that it is against the human psychology to decide a case
against his own interest. The basic objective of this rule is to ensure public

1
N.K. Jaykumar, Administrative Law, P.41, Printice Hall of India Pvt. Ltd, New Delhi.
2
Ibid.
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confidence in the impartiality of the administrative adjudicatory process, for as per

Lord Hewart CJ, in R v. Sussex, justice should not only be done, but also manifestly
and undoubtedly seen to be done.

A decision which is a result of bias is a nullity and the trial is Coram non judice.

Overview of The Principle:

‘ Nemo judex esse debet in propria causa’ is the maxim which recognizes
the principle of ‘ rule against bias’. The judge is disqualified from determining any
case in which he may be, or fairly be suspected to be, biased. But the classic
example of an offence against this rule in the regular courts of law is that of Lord
Chancellor Cottenham in 1852, who in Chancery suit had affirmed a number of
decrees made by the Vice-Chancellor in favour of Canal Company in which Lord
Cotenham was a share-holder to the extent of several thousand pounds. Lord
Cottenham’s decrees were set aside by the House of Lords on account of its
pecuniary interest; but the house itself dealt with the appeal on merits, and affirmed
the decrees of the Vice-Chancellor.3

Most decided cases on bias concerned decisions of courts of law. The

principle applies not only to judicial proceedings but also to quasi-judicial and
administrative proceedings. However, it is not always practically feasible, so at
times it is given a go by – for instance when an administrative authority sits as a
judge against its own policy, it is a necessary evil. The rule is commonly expressed
as saying that a judge must be free form bias.

3
H.W.R. Wade ,C.F. Forsyth, Administrative Law, Eleventh Edition, P.401,Oxford University Press.
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DEFINITION: ‘Bias’, in this context –

“denotes a departure form the standard of even-handed justice which the law
requires form those who occupy judicial office, or those who are commonly
regarded as holding quasi-judicial office, such as an arbitrator. The reason for this is
clearly that, having to adjudicate between two or more parties, he must come to his
adjudication with an independent mind, without any inclination or bias towards one
side or other in the dispute.”4

In State of West Bengal v. Shivananda Pathak,5 the Supreme Court said,

“Bias may be defined as a preconceived opinion or a pre-disposition or pre-

determination to decide a case or an issue in a particular manner so much so that
such pre-disposition does not leave the mind open to conviction. It is a condition of
mind, which sways judgments and renders the judge unable to exercise impartiality
in a particular case.”

If a person, for whatever reason, cannot make an objective decision on the basis of
evidence on record, he shall be said to be biased. The minimal requirement of
natural justice is that the authority must be composed of impartial persons acting
fairly, without prejudice and bias.6

4
Beatson, Mathews, et.al, Administrative Law Texts & Materials, P 321.
5
6
N.K. Jayakumar, Administrative Law, P 43, PHL Learing Pvt Ltd.
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KINDS OF BIAS

Rule against bias is of following kinds:

1. Personal Bias
2. Pecuniary Bias
3. Subject Matter Bias
4. Judicial Obstinancy

PERSONAL BIAS

A number of circumstances may give rise to personal bias. Here a judge may
be a relative, friend or business associate of a party. He may have a personal grudge,
enimity 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.7

Thus where chairman of bench was friend of wife’s family who had
instituted matrimonial proceeding against her husband and the wife had told the
husband that the chairman would decide the case in her favour, the Divisional Court
quashed the order.8 Similarly a Magistrate who was beaten by a accused was held
disqualified for hearing a case filed against that accused. Again a decision was set
aside on the ground that the chairman was the husband of an executive officer of a
body which was a party before the tribunal. Likewise , a magistrate cannot convict

7
Griffith and Street, Principles of Administrative Law(4 th Edn.) p.156; de Smith, Judicial review of
Administrative Action (1995).
8
Cottle vs Cottle. (1939) All ER 535.
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his own employees for breach of contract on the basis of a complaint filed by his
bailiff.9

The above principle is accepted in India also. In one case, a manager

conducted an inquiry against a workman for the allegation that he had beaten the
manager. It was held that the inquiry was vitiated.10 In another case, there existed
political rivalry between M and the Minister, who had cancelled the license of M. A
criminal case was also filed by the minister against M. It was held that there was
personal bias against m and the Minister was disqualified from taking any action
against M.11

In State of UP. V. Mohd. Nooh12, a departmental inquiry was held against A by

B. As one of the witness against A turned hostile, B left the inquiry, gave evidence
against A, resumed to complete the inquiry and passed an order of dismissal. The
Supreme Court held that “ rule of natural justice were completely discarded and all
canons of fair play were grievously violated by B.

Similarly, in Rattan Lal v. Managing Committee13, X was a witness as well as

one of the three members of an inquiry committee against A. At the inquiry, A was
found guilty and was dismissed. Setting aside dismissal and following Moh. Nooh
the Supreme Court held that the proceedings were vitiated because of prejudice of
one of the members of the committee.

In the leading case of AK Kraipak v. Union of India14 one N was candidate for
selection to the Indian Foreign Service and was also the member of the selection
board. N did not sit on the board when his own name was considered. Name of N

9
Avtar Singh, Administrative Law, p 181, Allahabad Law Agency.
10
Meenglas Tea Estate v. Workmen, AIR 1963 SC 1719: (1964) 2 SCR 165.
11
Mineral Development Ltd. V. State of Bihar, AIR 1960 SC 468: (1960) 2 SCR 609.
12
AIR 1958 SC 86: 1958 SCR 595.
13
(1993) 4 SCC 10: AIR 1993 SC 2155.
14
(1969) 2 SCC 262: AIR 1970 SC 150.
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was recommended by the board and N was selected by the Public Service
Commission the candidate who were not selected filed writ petition for quashing the
selection of N on the ground that the principal of natural justice was violated.

In the case of Jiwan K. Lohia v. Durga Dutt Lohia ,15 the apex court observed
that with regard to the bias the teat to be applied is not whether in fact the bias has
affected the judgment, but whether a litigant could reasonably apprehend that a bias
attributable might have operated against him in the final decision.
Therefore the real test for likelihood of bias is whether a reasonable person in
possession of relevant information, would have thought that bias was likely and
whether the authority concerned was likely to be disposed to decide a matter in a
particular manner.

The reason is plain enough as per Lord Denning, Justice must be rooted in the
confidence and the confidence is destroyed when right minded people go away
thinking that the judge is biased.

Pecuniary Bias:

Any financial interest howsoever small it may be is bound to vitiate the

administrative action. The judicial opinion is unanimous as to it.16

The position on financial interest has been succinctly stated in Halsbury’s

Laws of England: “There is a presumption that any direct financial interest,
however small, in the matter in dispute disqualifications a person from adjudicating.
Membership of a company, association or organisation which is financially

15
AIR 1992, SC 188, 1992.
16
Avatar Singh, Administrative Law, P 175, Universal Publication.
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interested may operate as a bar to adjudicating, as may be a bare liability to costs

where the decision itself will involve no pecuniary loss.”17

In ‘R v. Hendon Rular District Council’, the court in England quashed the decision
of the planning commission, where one of the members was an estate agent who
was acting for the applicant to whom permission was granted.18

In ‘Jeejeebhoy vs. Astt. Collector,Thana’19 the CJ reconstituted the bench

,when it was found that one of the members of the bench was the member of the
cooperative society for which the land has been acquired.

But this rule is not applicable where the judge, though having a financial
interest, has no direct financial interest in the outcome of the case. this is evident
from the Court of Appeal decision in ‘R v. Mulvhill’,20 where the court refused to
set aside the conviction of an accused on a 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
likelihood of bias administrative action will not be quashed.

The best illustration is the House of Lords case of Dimes v. Grand Junction
Canal, in which the facts were exceptional:

A public company brought a bill in equity against a land owner in a matter

involving the interests of a company which was heard by the vice-chancellor who
granted relief to the company. On appeal, the order was confirmed by the Lord
Chancellor, Lord Cottenham, who was a shareholder in the company. The decree
was impugned before House of Lords after Lord Cottenam had retired and the

17
Timothy Endicott, Administrative Law, P 165.
18
Ibid, p167.
19
1965, AIR, 1096.
20
Supra Note 5, P.391.
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House, presided over by another Lord Chancellor set aside the decree, with the
observation:21

“No one can suppose that Lord Cottenham could be, in the remotest degree,
influenced by the interest he had in this concern; but it is of the last importance that
the maxim that no man is to be a judge in his cause should be held sacred… This
they are not influenced by their personal interest but to avoid appearance of
labouring under such an influence.”

In UK Judicial approach is unanimous and decisive on the point that any

financial interest, howsoever small it may be, would vitiate administrative action.

Pecuniary interest in the cause, however slight, will disqualify the judge, even
though it is not proved that the decision has in fact been affected by reason of such
interest. For the same reason, where a person having such interest sits as one of the
judges, the decision is vitiated even though he does not take part in the actual
decision. On this principle, -

(i) The court struck down the resolution of local authority sanctioning a
development scheme, on the ground that one of the councillors who had applied for
the permission to make the development, as an estate agent, took part in the meeting
where the resolution was passed.

(ii) Shareholders in a railway were held to be disqualified form hearing charges

against ticket-less passengers, even though “the interest to each shareholder may be
less than 1/4d.”

21
Ibid, P167.
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On the other hand –

(i) Mere trusteeship of a friendly society would not constitute a pecuniary interest
to disqualify a trustee.

(ii) It is difficult to hold, without further facts, that a person who is in the
permanent service of the State can be deemed to have acquired a financial interest
by merely being put in charge of a Department.

India

A direct pecuniary interest, howsoever small or insignificant it may be, will

disqualify a person form acting as a judge in a court. It is not necessary to prove that
there was actual bias or a real likelihood of bias in the circumstance of the case. A
similar principle applies to the adjudicatory proceedings as well. Thus, if a permit is
granted by a regional transport authority to one of its members, the court may not
have any hesitation in canceling it on account of bias of the authority.22

Subject Matter Bias:

The situations where the deciding officer is directly or indirectly in the subject
matter of the case.
In ‘R v. Deal Justices’, the magistrate was not declared disqualified to try a
case of cruelty to an animal on the ground that he was a member of the royal society
for the prevention of cruelty to animals as this did not prove a real likelihood of bias.

The supreme court in cases like ‘Murlidhar v. Kadam singh’23 & ‘Sub –
Committee of Judicial Accountability v. Union of India’24, followed the same line.

22
Ashish Makhija, “Principles Of Natural Justice”.
23
AIR 1954, MP 111.
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But in ‘Gulla palli Nageshwara Rao v. APSRTC’,25 the Supreme Court quashed the
decision of A.P. government . nationalizing road transport on the ground that the
secretary of the transport department who was given a hearing was interested in the
subject matter. It may be mentioned that in USA and England, predisposition in
favor of a policy in the public interest is not considered as legal bias vitiating
administrative actions.

The Supreme Court in ‘Hari v. Dy. Commr. of Police’.26 In this case an

exterminate order was challenged on the ground that since the police department
which initiated the proceedings and the department which heard and decided the
case were the same, the element of departmental bias vitiated administrative action.
The Court rejected the challenge on the ground that so long as the two functions
(initiation and decision) were discharged by two separate officers, though they were
affiliated to the same department, there was no bias.
In ‘Krishna Bus Service v. State of Haryana’,27 the Supreme Court quashed
the notification of the government which had conferred powers of a Deputy
Superintendent of Police on the General Manager, Haryana Roadways in matters of
inspection of vehicles on the ground of departmental bias. The facts of this case
were that some private bus operators had alleged that the General Manager of
Haryana Roadways who was the rival in business in the State could not be expected
to discharge his duties in a fair and reasonable manner and would be too lenient in
inspecting the vehicles belonging to his own department. The reason for quashing
the notification according to the Supreme Court was the conflict between the duty
and the interest of the department and the consequential erosion of public
confidence in administrative justice.

24
AIR 320, 1992.
25
AIR 1959 301.
26
AIR 1956, SC 559.
27
AIR 1985,1651.
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Judicial obstinancy.

The word Obstinacy implies unreasonable and unwavering persistence and

the deciding officer would not take ‘no’ for an answer. This new category of bias
was discovered in a situation where a judge of the Calcutta High Court upheld his
own judgment while sitting in appeal against his own judgment. Of course a direct
violation of the rule that no judge can sit in appeal against his own judgment is not
possible, therefore, this rule can only be violated indirectly. In this case in a fresh
writ petition the judge validated his own order in an earlier writ petition which had
been overruled by the Division Bench. What applies to judicial process can be
applied to administrative process as well.28

In State of W. B. v. Shivanand Pathak29 awrit of mandamus was sought by

the petitioner directing the Government to promote him. A single judge allowed the
petition ordering the authorities to promote the petitioner ‘forthwith’. But the order
was set aside by the Division Bench. After two years, a fresh petition was filed for
payment of salary and other benefits in the terms of the judgement of the single
judge . It was dismissed by the single judge. The order was challenged in appeal
which was heard by a Division Bench to which one member was a Judge who had
allowed the earlier petition. The appeal was allowed and certain reliefs were
granted. The state approached the Supreme court.

Allowing the appeal and setting aside the order the Apex court described the
case of a new form of bias (judicial obstinancy). It said that if judgement of a judge
is set aside by the superior court , the judge must submit to the judgement. He
cannot rewrite overruled judgement in the same or in collateral proceedings. The
judgement of the higher court binds not only to the parties to the proceedings but
also to the judge who rendered it.

28
http://www.legalserviceindia.com/article/l25-Nemo-in-propria-causa-judex,-esse-debet-THE-
RULE-AGAINST-BIAS.html, Visited on 2/12/2015.
29
(1998) 5 SCC 513: AIR 1995 SC 2050.
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Test- Real likelihood of bias

A pecuniary 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.

De. Smith30says , ‘a real likelihood of bias means at least substantial

possibility of bias. In the words of Lord Hewart, C.J. the answer to the question
whether there was 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’.
As Lord Denning says, “ The reason is plain enough. Justice must be rooted in
confidence: and confidence is destroyed when right minded people go away
thinking ‘the judge was biased’.

The same principle is accepted in India. In Manak lal v. Dr. Prem Chand 31, a
complaint was filed by A against B , an advocate for an alleged act of misconduct.
A disciplinary committee was appointed to make an inquiry into the allegations
made against B. The chairman had earlier represented A in a case. The Supreme
Court held that the inquiry was vitiated even if it were assumed that the chairman
had no personal contact with his client and did not remember that he had appeared
on his behalf at any time in the past.

As to test of likelihood of bias what is relevant is the reasonableness of the

apprehension in that regard in the mind of the party. The correct approach for the

30
Judicial Review Of Administrative Action (1995) at pp 525-27.
31
AIR 1957 SC 425: 1957 SCR 575.
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judge is not to look at his own mind and ask himself, however honestly: “ Am I
biased?” but to look at the mind of the party before him.32

But at the same time , it should not be forgotten that the test of real likelihood of
bias must be based on reasonable apprehensions of a reasonable man fully apprised
of the facts. It is no doubt desirable that all judges like caeser’s wife must be above
suspicion but it would be hopeless for the courts to insist that only ‘ peoplewho
cannot be suspected of improper motives’ were qualified at common law to
discharge judicial functions, or to quash decision on strength of suspicion of fools
or other capricious or unreasonable people.

32
Ranjit Thakur v. Union of India, (1987) 4 SCC 611 (618-19): AIR 1987 SC 2386.
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CONCLUSION

Justice should be delivered by person divesting bias. The decision given

by an authority should not be influenced by any external factors which favours the
decision maker. A should always remember that he has a bigger role to play in
upholding the belief of common man towards justice. Bias will divest the faith of
common from the justice mechanism of a country.

Reasonable apprehension in the mind of reasonable man is necessary.

Such reasonable apprehension should be based on cogent material. Moreover
normally a court will not uphold an allegation of bias against a person holding high
constitutional status, such as election commissioner. Again there must be reasonable
evidence to satisfy that there was real likelihood of bias. Vague suspicion of
whimsical, capricious and unreasonable people should not be made the standard to
regulate normal human conduct.
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