RAJIV GANDHI NATIONAL UNIVERSITY OF LAW

PATIALA

SEMINAR PAPER
ADMINISTRATIVE LAW

TOPIC : RULE OF BIAS

SUBMITTED TO: SUBMITTED BY:

DR. KAMALJIT KAUR AYUSH SUNDARKA

ASSOCIATE PROFESSOR OF LAW 18532

1
 ACKNOWLEDGEMENTS

I take this opportunity to express my profound gratitude and

deep regards to my Associate Professor Dr. Kamaljit Kaur for
her exemplary guidance, monitoring and constant
encouragement throughout the course of this project. The
blessing, help and guidance given by her time to time shall carry
me a long way in the journey of life on which I am about to
embark.
I also take opportunity to express a deep sense of gratitude to
this university for its cordial support, valuable information, and
guidance which helped me in completing this task through
various stages.
Lastly, I would like to thank almighty god, my parents and
friends for their constant encouragement without which this
assignment would not have been possible.

2
 TABLE OF CONTENTS
CONTENTS PAGE NUMBER
Chapter 1
INTRODUCTION 4 -5
1.1 Definition of Rule of Bias

Chapter 2
TYPES OF BIAS 6 - 11

2.1 Personal Bias

2.2 Pecuniary Bias
2.3 Subject Matter Bias
2.4 Departmental Bias
2.5 Judicial Obstinacy

Chapter 3
TEST OF BIAS 12 - 13

Chapter 4
EXCEPTION TO THE RULE OF BIAS 14 - 16

4.1 Necessity
4.2 Waiver
Chapter 5

CONCLUSION 17

BIBLIOGRAPHY 18

3
 CH.1. 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. 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 recognizes two principles of natural justice:

 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
 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.

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

4
this rule is to ensure public confidence in the impartiality of the administrative adjudicatory
process, for as per Lord Hewart CJ, in R v. Sussex1, “Justice should not only be done, but also
manifestly and undoubtedly seen to be done.”

1.1 Definition Of Rule Of Bias

‘Bias’, in this context –

“denotes a departure from 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.”2

In State of West Bengal v. Shivananda Pathak,3 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.4

1
([1924] 1 KB 256, [1923] All ER Rep 233)
2
Beatson, Mathews, et.al, Administrative Law Texts & Materials, P 321.
3
[(1998) 5 SCC 513]
4
N.K. Jayakumar, Administrative Law, P 43, PHL Learing Pvt Ltd.

5
 CH.2. TYPES OF BIAS

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

In Cottle v. Cottle5, 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.

The above principle is accepted in India also. In Meenglas Tea Estate v. Workmen6, 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.

In Mineral Development Ltd. V. State of Bihar7, 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.

In State of UP. v. Mohd. Nooh8, 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 was completely discarded and all canons of fair play were grievously violated by
B.

5
(1939) 2 All ER 535:83 SJ 501
6
1963 II, L.L.J, 392 (S.C.). 190. 42.
7
AIR 1960 SC 468
8
AIR 1958 SC 86

6
 Similarly, in Rattan Lal v. Managing Committee9, 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 Mohd. Nooh the Supreme Court held that the
proceedings were vitiated because of prejudice of one of the members of the committee.

In Manaklal v. Premchand10, 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 AK Kraipak v. Union of India11, 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 was recommended by the board and N
was selected by the Public Service Commission. The candidates who were not selected filed writ
petition for quashing the selection of N on the ground that the principal of natural justice was
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

9
(1993) 4 SCC 10: AIR 1993 SC 2155.
10
AIR 1995 SC 425
11
(1969) 2 SCC 262: AIR 1970 SC 150.

7
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.

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”.

2.2 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.12

The position on financial interest has been briefly 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
organization which is financially 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.”13

In R v. Hendon Rural District Council14, 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.

In Jeejeebhoy v. Astt. Collector,Thana15 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. Mulvhill16 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.
12
Avatar Singh, Administrative Law, P 175, Universal Publication.
13
Timothy Endicott, Administrative Law, P 165.
14
[1933] 2 KB 696
15
1965, AIR, 1096.
16
(1990) 1 All ER 436.

8
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.

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.17

2.3 Subject Matter Bias

The 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
situations where the deciding officer is directly or indirectly in the subject matter of the case.
In R v. Deal Justices18, 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 singh19’ & ‘Sub –Committee of
Judicial Accountability v. Union of India20, followed the same line. But in
‘Gullapalli Nageshwara Rao v. APSRTC21’ the Supreme Court quashed the decision of A.P.
government nationalizing road transport on the ground that the secretary of the transport

17
Ashish Makhija, “Principles Of Natural Justice”.
18
(1881) 45 LT 439
19
AIR 1954, MP 111.
20
AIR 320, 1992.
21
AIR 1959 301.

9
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.

2.4 Departmental Bias

The problem of departmental bias is something, which is inherent in the administrative process,
and if it is not effectively checked, it may negate the very concept of fairness in the
administrative proceeding. It arises in different context- when the functions of judge and
prosecutor are combined in the same department. It is not uncommon to find that the same
department which initiates a matter also decides it, therefore, at times, departmental fraternity
and loyalty militates against the concept of fair hearing.

This problem came up before the Supreme Court in Hari Pd. v. Dy. Commr. of Police22. In this
case, an 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 Haryana23, 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.

22
AIR 1956 SC 559
23
(1985) 3 SCC 711.

10
2.5 Judicial Obstinacy

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.24

In State of W. B. v. Shivananda Pathak25 a writ 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 judgment 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 obstinacy). It said that if judgment
of a judge is set aside by the superior court, the judge must submit to the judgment. He cannot
rewrite overruled judgment in the same or in collateral proceedings. The judgment of the higher
court binds not only to the parties to the proceedings but also to the judge who rendered it.

24
http://www.legalserviceindia.com/article/l25-Nemo-in-propria-causa-judex,-esse-debet-THE-RULE-AGAINST-
BIAS.html, Visited on 10/19/2018.
25
supra Note 3.

11
 CH.3. TEST OF BIAS

The courts 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 judgment 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.

De. Smith26 says, ‘a real likelihood of bias means at least substantial possibility of bias. 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’.

In India, the real likelihood test is applied by the Supreme Court in A.K. Kraipak27 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.”

26
Judicial Review Of Administrative Action (1995) at pp 525-27.
27
supra Note 11.

12
In Ashok Kumar Yadav vs. State of Haryana28, the court through Bhagwati C.J has very
briefly 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 in strict sense 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 Manak Lal vs. Dr Premchand29, the court laid down the bias in following words: “In such
cases the test is not whether in fact a bias has affected the judgment; 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.”

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 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.30

28
1985 4 SCC 417.
29
supra Note 10.
30
Ranjit Thakur v. Union of India, (1987) 4 SCC 611 (618-19): AIR 1987 SC 2386.

13
 CH.4. EXCEPTIONS TO THE RULE OF BIAS

There are two exceptions to the rule against bias:

4.1 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. Bias would not disqualify an officer from taking an action if no
other person is competent to act in his place. This exception is based on the doctrine which it
would otherwise not countenance on the touchstone of judicial propriety. The doctrine of
necessity makes it imperative for the authority to decide and considerations of judicial propriety
must yield. It can be invoked in cases of bias where there is no authority to decide the issue. If
the doctrine of necessity is not allowed full play in certain unavoidable situations, it would
impede the course of justice itself and the defaulting party would benefit from it. If the choice is
between either to allow a biased person to act or to stifle the action altogether, the choice must
fall in favor of the former as it is the only way to promote decision-making.

In Ashok Kumar Yadav v. State of Haryana31, 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. Ratna32, 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
31
Supra Note 28.
32
AIR 1987 SC 71.

14
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 Justice33, 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 India34 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.”

33
AIR 1985 Kerala 245.
34
(1995) 4 SCC 611.

15
4.2 Doctrine of 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.

16
 CH.5. CONCLUSION

Justice should be delivered by person divesting bias. The decision given by an authority should
not be influenced by any external factors which favour the decision maker. A judge 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.

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 on 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 its 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.

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.

Justice is rooted in the minds of the people but it is destroyed when the right minded people go
away thinking that the judge is biased.

17
 BIBLIOGRAPHY

1. 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. www.indiankanoon.org

18