lawyers in India

Nemo in propria causa judex, esse debet / The Rule Against Bias

Written by: Divi Jain - IVth year student at National Law Institute University, Bhopal
Army Law
Legal Service
  • Nemo in propria causa judex , esse debet, 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.

    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 confidence in the impartiality of the administrative adjudicatory process, for as per Lord Hewart CJ, in R v. Sussex[1], 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.

    Types of bias:

    Bias manifests itself variously and affects a decision in a variety of ways. It can broadly be classified into six categories:
    # Personal Bias
    # Pecuniary Bias
    # Subject Matter Bias
    # Departmental Bias
    # Preconceived Notion Bias
    # Bias On Account of Obstinacy.

    Dealing with each kind in detail:
    Personal Bias:

    It arises out of the personal or professional relationship of friendship or hostility between the authority and the parties. It’s the human nature that we try to give favorable decision to our friends or relatives, whereas use the same as a weapon against the enemies.

    Apex court’s decision in Mineral Development Corporation Ltd. V. State of Bihar[2], serves as a good illustration on the point. Here, the petitioners were granted a mining lease for 99 years in 1947. But in 1955, government quashed the license. The petitioners brought an action against the minister passing this order on the behalf of government, on the ground that, the petitioner in 1952 opposed the minister in General election. Therefore, on the account of political rivalry, the minister passed such an order, and hence the order was suffered from personal bias. Supreme Court found the allegation to be true and thus quashed the said order.
    Similarly in Baidyanath Mohapatra v. state of Orissa[3], the Supreme Court quashed the order of the tribunal confirming premature retirement on the ground that the chairman of the tribunal was also a member of the review committee which had recommended premature retirement.

    Test For Personal Bias:
    There are two kinds of tests:
    Reasonable Suspicion of Bias: looks mainly to outward appearance.
    Real Likelihood of Bias: Focuses on court’s own evaluation of possibilities.

    In both the situations, the court sees whether there is reasonable ground for believing that the deciding officer was likely to be biased, as it is very difficult to prove a person’s state of mind.
    In the case of Jiwan K. Lohia v. Durga Dutt Lohia [4], 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[5], 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. 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.
    In R v. Hendon Rular District Council[6], 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 vs. Astt. Collector,Thana[7] 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[8], 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.

    3. 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 ex p. Curling[9], 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 & sub – committee of judicial accountability v. Union of India, followed the same line. But in Gulla palli Nageshwara Rao v. APSRTC[10], the Supreme Court quashed the decision of A.P. government . nationalizing road transport on the ground that the secratery 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.

    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.
    In Gullapalli Nageswara Rao v. APSRTC the order of the government nationalizing road transport was challenged in this case. One of the grounds for challenge was that the Secretary of the Transport Department who gave the hearing was biased, being the person who initiated the scheme and also being the head of the department whose responsibility it was to execute it. The court quashed the order on the ground that, under the circumstances, the Secretary was biased, and hence no fair hearing could be expected.

    The problem of departmental bias 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 v. Dy. Commr. of Police. In this case an externment order was challenged n 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, 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.

    5. Preconceived Notion Bias
    Bias arising out of preconceived notions is a very delicate problem of administrative law. On the one hand, no judge as a human being is expected to sit as a blank sheet of paper, on the other hand, preconceived notions would vitiate a fair trial. A classic case bringing this problem to the forefront is Franklin v. Minister of Town and Country Planning known as Stevenage case. In this case the appellant challenged the Stevenage New Town Designation order, 1946 on the ground that no fair hearing was given because the minister had entertained bias in his determination which was clear from his speech at Stevenage when he said I want to carry out a daring exercise in town planning (jeers, catcalls, boos). It is no good your jeering! It is going to be done. Though the court did not accept the challenge on the technical grounds that the minister in confirming the report was not performing any quasi-judicial function, but the problem still remains that the bias arising from strong convictions as to policy may operate as a more serious threat to fair action than any other single factor.

    This point came up for consideration before the Supreme Court in T. Govindaraja Mudaliar v. State of T.N, the government decided in principle to nationalize road transport and appointed a committee to frame the scheme. The Home Secretary was made a member of this committee. Later on, the scheme of nationalization was finalized, published and objections were heard by the Home Secretary. It was contended that the hearing was vitiated by the rule against bias because the Secretary had already made up his mind on the question of nationalization as he was a member of the committee which took this policy decision. The court rejected the challenge on the ground that the Secretary as a member of the committee did not finally determine any issue as to foreclose his mind. He simply helped the government in framing the scheme. Similarly, in Kondala Rao v. APSRTC the court did not quash the nationalization of the road transport order of the Minister who had heard the objections of private operators on the ground that the same Minister had presided over a meeting only a few days earlier in which nationalization was favored. The court rejected the contention on the ground that the decision of the committee was not final and irrevocable but merely a policy decision.

    The problem of bias arising from preconceived notions may have to be disposed of as an inherent limitation of the administrative process. It is useless to accuse a public officer of bias merely because he is predisposed in favor of some policy in the public interest.

    Bias On Account of 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.

    Doctrine of Necessity:

    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. Therefore, the Court held that bias would not vitiate the action of the Speaker in impeachment proceedings and the action of the Chief Election Commissioner in election matters.

    In the USA, the disqualification arising out of bias arises from the due process clause of the American Constitution. Therefore, an administrative action can be challenged in India and England. Recent trends in the judicial behavior of the American Supreme Court also indicate that where the administrative authority prejudged the issue, the action will be vitiated.

    However, the term ‘bias’ must be confined to its proper place. If bias arising out of preconceived notions means the total absence of preconceptions in the mind of the judge, then no one has ever had a fair trial, and no one ever will. Therefore, unless the strength of the preconceived notions is such that it has the capacity of foreclosing the mind of the judge, administrative action would not be vitiated.

    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.

    Neil Prapworth, constitutional and administrative law ,(Butterworth’s publication, 2000)
    B. Schwartz, Administrative Law, 4th edition,(Little Brown and co., 1994)
    I.P. Massey Administrative Law, 6th edition, (Eastern Book and Co.,2007)

    [1] (1924)1KB 256
    [2] AIR 1960 SC468
    [3] (1989)4 SCC 664
    [4] (1992) 1 SCC 56
    [5] Lord Denning : The Discipline of Law,(1982)pg.87
    [6] (1933) 2 KB 696
    [7] AIR 1965 SC 1096
    [8] (1990) 1 AllER 436
    [9] (1881) 45 LT 439
    [10] AIR 1959 SC 308

    The author can be reached at:[email protected]

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