WHAT IS ‘RULE OF BIAS’, WHAT ARE VARIOUS KINDS OF ‘BIAS’
WHAT IS ‘RULE OF BIAS’, WHAT ARE
VARIOUS KINDS OF ‘BIAS’
The expression “No
one should be a judge in his own case” exists and is followed because
it ultimately leads to the ‘Rule of Biases’. Here, ‘Bias’
means an act leading to any unfair activity. It does not matter whether such
activity done in a conscious state or in an unconscious state in relation to a
party or a particular case. Hence, the need of this very rule is to make
the Judge delivering the judgement impartial and give a judgement justly on the
basis of evidence recorded as per the case.
Following are the various
kinds of ‘Bias’:
1)
Personal bias
Personal bias is
the type of ‘Bias’ which is said to arise from a relationship between the party
and deciding authority of a proceeding. Such type of Bias leads the deciding
authority to a doubtful situation which may force the authority to make an
unfair activity and thus give judgement in favour of his person. The Apex Court
of India in one of the cases saw that one of the members of the panel of
selection committee was the brother of an individual who was a candidate in the
competition in which the said panel of selection committee were suppose to
operate justly and fairly. But due to this occurrence, the whole process of
selecting the candidates could not quashed- as such was held by the Supreme
Court. Here, to avoid the act of biases of the individual who was a member of
the selection committee but had a brother who was competing in that
competition, at the turn of his brother, such panel member connected with the
candidate could be requested to go out from the panel of the selection
committee. Thus, a fair and reasonable decision could be made by the rest of
the selection committee[1].
In the case Mineral Development Ltd. v. State of Bihar[2],
the petitioners were granted mining license for 99 years in 1947. However,
the Minister having political rivalry with the petitioners cancelled the
licence of the petitioners. This very action of the Government was challenged
on the ground of personal bias by the petitioners after they got deprived of
the license. This challenge was accepted by the Court. The Court held that
there was indeed personal bias involved in this case. Such bias was against the
petitioners of the case and the Minister was disqualified by the Court from
taking any action against the petitioners.
In another case Meengless Tea Estate v. Workmen[3],
the Manager conducted an inquiry against a workman for the allegation that
he had beaten the Manager. The Apex Court in this case held that the inquiry
was vitiated because of the presence of personal bias. In the famous case D.K.
Khanna v. Union of India the selection of the candidate was cancelled on the
basis of the fact that there was personal bias involved as the Selection
Committee selecting him consisted of a member who was son-in-law of a
candidate, as a member.
In State of Uttar Pradesh v. Mohd. Nooh[4],
a departmental inquiry was held by a Dy S.P. against a Police Constable. One of
the witnesses turned hostile. In order to contradict the testimony of the
witness, the Presiding Officer offered himself as a witness to complete the
inquiry and passed an order of dismissal. The Supreme Court quashed the order
of the dismissal holding that the rules of natural justice were completely
discarded and as the canons of fair play were grievously violated by the
officer concerned. There is certainly a real likelihood, of bias against the
constable.
In A.K. Kraipak v. Union of India[5],
one Naquishbad was candidate for to the Indian Foreign Service and was also a
member of the Selection Board. Here, Naquishbund did not sit on the Selection
Board even though his name was considered. Naquishbund was recommended by the
Board and thus he ended up getting selected by the Public Service Commission.
The candidates other than him, who were not selected then challenged the
selection of Naquishbund on basis of the ground that principles of natural
justice were violated in this case.
The Apex Court in this case quashed the selection and made
the following observation: "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
deliberations of the Committee when his name was considered. But then the very
fact that he was member of the Selection Board must have its own impact on
decision of the Selection of the Board. The real question is not whether he was
biased. It is difficult to 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”.
About the importance of this case. Bhagwati, J. has observed
A.K. Kraipak is a landmark in the development of administrative law and it has
contributed in large measure to strengthening of the rule of law in this
country. “We would not like to whittle down in the slightest measure the vital
principle laid down in this decision which has nourished the roots of the rule
of law and injected justice and fair play in legality."- as it was held in
case Ashok Kumar Yadav v. State of Haryana[6].
Similar is the case of S.P Kapoor v. State of H.P.[7],
where the Departmental Promotion Committee considered the confidential reports
of the candidates prepared by an officer who himself was one of the candidates
for promotion. The Supreme Court here quashed the selection.
In the case J. Mohapatra and Co. v. State of Orissa[8],
State of Orissa had constituted an Assessment Committee in order to recommend
and select books of various authors and publishers for various school subjects.
Some of the members of the committee were themselves authors whose books were
also to be considered for selection. The books of the members of the Assessment
Committee were got approved. The action of the government was challenged on the
ground of bias Quashing the action, the Supreme Court said that the possibility
of bias cannot be ruled out because some members whose books were in the list
for selection were members of the Assessment Committee.
Again, in Baidyanath Mahapatra v. State of Orissa[9],
according to the recommendation made by the Review Committee, a government
servant was prematurely retired at the age of 50 years. One of the members of
the Review Committee who recommended premature retirement of the appellant
happened to be appointed as Chairman of the Tribunal and confirmed the order of
premature retirement. The Apex Court here stated that the order of the Tribunal
was vitiated because of the fact that the member who had administratively taken
a decision against the appellant, considered the matter judicially as Chairman
of the Tribunal, thereby he acted as a Judge in his own cause
In Sheonandan Paswan v. State of Bihar[10],
prosecution against the former Chief Minister was withdrawn. The decision
to withdraw prosecution was taken in a Cabinet meeting headed by the accused
himself. However, the decision was upheld by the Supreme Court by a mojority of
3:2. In a minority judgment Bhagwati, C.J., rightly said "It would be
subversive of all principles of justice that the accused should take a decision
to withdraw the prosecuction against himself."
In Tata Cellular v. Union of India[11],
the decision of the Supreme Court stands at a different footing. In this
case the facts were that the tender for operating Cellular Mobile Telephone
Service in four metropolitan cities filed by the son of one of the members of Tender
Evaluation Committee had been accepted. This action was challenged on the basis
of personal bias. On the ground of personal necessity because the involvement
of Director General of Telecommunication and Telecom Authority was necessary in
view of S.3(6) of Telegraph Act, 1885 the court held that the involvement of
his father as member of Tender Evaluation Committee did not vitiate the
selection on ground of personal bias.
2)
Pecuniary bias
In case of the
pecuniary bias, it is stated that 'the least pecuniary interest in the
subject-matter of litigation will disqualify any person from acting as a judge’-
such it was held in case Per Stephen, J.R. v. Farrant[12].
According to Griffith and Street pecuniary interest, however slight, will
disqualify, even though it is not proved that such decision is in any way
affected due to it. In the famous Bonham Case (1610), Dr. Bonham, a
Doctor of Cambridge University was fined by the College of Physicians for
practising in the city of London without the licence of the College. The very Statute
under which the College acted provided this rule that the half of the fines
should go to the King and the other half to the College. After judging the claim,
Coke, CJ, disallowed the claim because of the fact that the College had a
financial interest in its own judgment and therefore was regarded as the Judge
in its own cause.
Another famous case
Dimes v. Grand Junction Canal (1852) which is regarded as the
classic example of pecuniary bias because in this case, a public limited
company filed a suit against a land owner regarding a matter largely involving
the interests of the Company. The Lord Chancellor was a Shareholder in the
Company and therefore decided the case by giving the company the relief which
was claimed by the Company. Later his decision was quashed by the House of
Lords due to the fact that the pecuniary interest of the Lord Chancellor in the
said Company which made the claims. Lord Campbell, in this case, observed that
no one could suppose that the Lord Chancellor, was in this case, the remotest
degree influenced by the interest that he had in the concern. But it is due to
the last importance of this maxim, it was held that no one is to be judge in
his own cause and such principle should be held sacred.
In India also, the
same principle has been followed in several cases. This same principle was
accepted in the case Manak Lal v. Dr. Prem Chand[13],
where Gajendragadkar, J. observed: "It is obvious that pecuniary interest,
however small it may be in a subject the proceedings, would wholly disqualify a
member from acting as a Judge." In another case, Jeejeebhoy v. Asstt
Collector, Thana[14],
Chief Justice Gajendragadkar reconstituted the Bench on the basis of the
objection that one of the members of the Bench was a member of the co-operative
society for which the land in dispute in that case had been acquired.
In the case Visakapatnam
Co-op. Motor Transport Ltd. v. Bangaruraju[15],
there was a cooperative society which wanted a permit. The Collector was the
President of that society and at the same time he was also Chairman of the
Regional Transport Authority granting permit in favour of the society. The
decision was quashed by the Court as it was in violation of the principles of
natural justice. The same was position in Annamalai v. State of Madaras where
one of the members of the Regional Transport Authority issued a permit in his
own favour. Afterwards he transferred the same permit in favour of his
son-in-law. However, the Court quashed the order as it was against natural
justice.
3)
Subject matter bias
Subject-matter bias
may arise when the Judge has a general interest in the subject-matter. Griffith
and Street opined in this matter, "Only rarely will this bias invalidate
proceedings" It is to be noted that if there is a mere general interest in
the general object to be pursued, such is not enough to disqualify a Judge from
deciding the matter. There must be some direct connection with the litigation.
Thus, in Rv. Deal
Justice exparte Curling (1881) Magistrate was not held disqualified for trying
a case of cruelty to an animal on the ground that he was a member of the Royal Society
for prevention of cruelty to animals because this did not create a real
likelihood of bias. Similar was the decision in Murlidhar v. Kadam Singh[16],
the Chairman of an Election Tribunal was not declared disqualified from
deciding the dispute relating to the petitioner's election on the ground that
the Chairman's wife was member of Congress Party whose candidate the petitioner
had defeated.
However,
proceedings are invalidated on ground of subject-matter bias in Gullapalli
Nageshwar Rao v. A.P. S.R.T.[17].
In this case the Supreme Court quashed the decision of Andhra Pradesh
Government, which Nationalised Road Transport, on the basis of the ground that
the Secretary of the Transport Department who gave hearing in this case was interested
in the matter-in-hand. But the position is different in America and England
where pre disposition in favour of policy in public interest is not held as
legal bias invalidating administrative action.
Muralidhar
vs. Kadam Singh[18] – in this case, the court refused to quash the
decision of Election tribunal on the basis of the ground that the wife of the
chairman was a member of Congress party whom the petitioner defeated.
4)
Departmental bias
Issues like departmental
bias is very common thing in almost every administrative process and if it is
not checked effectively on every small interval period, it will lead to
negative concept of fairness will get vanished in the proceeding. Departmental
bias is inherent in most of the administrative processes. If it is not checked
it will negate the concept of fairness in administrative process.
The leading case on this point is Gullapalli
Nageshwar Rao v. Andhra Pradesh State Road Transport Corporation (Gullapalli.I)[19],.
In this case the Transport Ministry issued a direction to the Secretary to the
Transport Department to hear objections under section 68 (a) of the Motor
Vehicles Actt the proposed scheme of Nationalisation. The objections filed by
the petitioners were received and heard by the secretary and thereafter the
scheme was approved by the Chief Minister. The Supreme Court accepted the
contentions of the petitioner that the official who heard the objections was in
substance one of the parties to the dispute and this was against the principles
of natural justice.
Similarly, in Kondala
Rao v. A.P. Transport Corporation, 1960 a scheme of nationalisation of bus
services was prepared by the Transport Corporation. The objections were invited
and they were heard by the Minister of Transport, who had presided over a
meeting of an official committee a few days oarlier in which nationalisation
was favoured. It was pleaded that the Minister had prejudiced the issue and as
such he was disqualified to decide the obiections made against the proposed
scheme of nationalisation. The Court rejected the plea on the ground that the
decision of the Committee was not final irrevocable' but merely a policy
decision and therefore no question of blas was involved.
In Mahadayal
v. C.T.O[20].,
according to the opinion of the Commercial Tax Officer, the petitioner was
not liable to pay tax: Even then he referred the matter to his superior
officer. On receipt of instructions from him, he imposed tax. The Supreme Court
quashed the decision.
The problem of
departmental bias arises in different situation when the function of Judge and
Prosecutor are combined in the same department. Thus, in Hari v. Dy.
Commr. of Police[21],
an externment order was challenged on the ground that since the police
department which initiated the proceeding and the department which heard and
decided the case were the same and, therefore, the element of departmental bias
invalidated the administrative action. The Court rejected the challenge and
held that there was no question of bias because the two functions were
discharged by two separate officers.
In State of
U. P. v. R. S. Sodhi[22],
the question was whether State police should investigate into the alleged
fake encounters. Allegations were levelled against local police. According to
the Supreme Court investigation into the matter by independent agency was desirable.
Accordingly, the Court directed C.B.L to investigate into the allegation.
5)
Policy notion bias
Sometimes it happens
that the Minister or the official concerned may announce beforehand the general
policy which he intends to follow. Here, the main question is regarding the
fact that whether such a statement would disqualify him from acting as the
deciding authority on basis of the ground that this hints at his partiality to
the issues in dispute. According to Wade Ministerial or departmental policy
cannot be regarded as disqualifying bias.
The point of policy
bias came for consideration before the Supreme Court in T. Govindraj
Mudaliar v. State of T.N., AIR 1973 SC 974. In this case the
government decided in principle to Nationalise Road Transport and appointed a
committee to frame the Scheme. This Committee consisted of Home Secretary as a
member.
Later on, the
scheme of nationalisation was finalised, published and the objections were
heard by the Home Secretary. It was held that the hearing was vitiated on the
basis of the account of bias as in this case, the Secretary had already made up
his mind on the question of nationalisation because he was a member of the
Committee which took this policy decision. The Court in this case rejected the
contention and stated that the Secretary as a member of the Committee did not ultimately
decide any issue as to foreclose his mind. He simply assisted the government in
preparing the scheme.
Policy bias is
inherent in administrative process and it cannot be eliminated. It is i useless
to condemn a public officer on ground of bias merely because he is pre-disposed
in favour of some policy in public interest. In this respect a statement of
Frank J., is often quoted:
"If, however,
'bias' and 'partiality be defined to mean the total absence of pre conceptions
in the mind of the Judge, then no one has ever had a fair trial and no one
will. The human mind, even, at infancy, is no blank piece of paper. We are born
with pre dispositions. Much harm is done by the myth that, merely by taking the
oath of office as a Judge, a man ceases to be human and strips himself of all
predilections, becomes a passionless thinking machine.”
6)
Bias on the account of the obstinacy
Supreme court has
discovered new criteria of biases through the unreasonable condition. This new
category emerged from a case where a judge of Calcutta High Court upheld his
own judgement in appeal. A direct violation of the rules of bias is done because
no judge can sit in appeal against in his own case.
The latin maxim related to this rule is Nemo judex in causa sua
or Rule against Bias. To know about this rule in further
details check out this link.
‘Administrative Law’
By Dr. J. J. R. Upahyaya.
[1]
Ramanand Prasad Singh vs. UOI 1996 SCC (4) 64, JT 1996 (4) 39.
[2]
AIR 1960 SC 468
[3]
AIR 1963 SC 1719
[4]
AIR 1958 SC 86
[5]
AIR 1970 SC 150
[6]
AIR 1987 SC 454 (468).
[7]
AIR 1981 SC 2181
[8]
AIR 1984 SC 1572
[9]
1988 SC 2218
[10]
AIR 1987 SC 877
[11]
(1994) 6 SCC 651
[12]
(1987) QB 58 (60)
[13]
AIR 1957 SC 425
[14]
AIR 1965 SC 1096
[15]
AIR 1953 Mad. 709
[16]
AIR 1964 MB 111
[17]
AIR 1959 SC 308
[18]
AIR 1954 MP III
[19]
AIR 1959 SC 1651
[20]
AIR 1961 SC 82
[21]
AIR 1956 SC 559
[22]
AIR 1994 SC 38
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