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.

 

References

 

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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