Index

1. Introduction
2. Personal bias
3. Pecuniary Bias
4. Official bias
5. Departmental Bias
6. Test of Bias
7. Exceptions to the rule against bias
8. Conclusion
9. Bibliography
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. Another meaning given is ‘anything which tends or may be
regarded as tending to cause such a person to decide a case otherwise on evidence must be
held to be biased.’ In Franklin v. Minister of town and country planning, Lord Thankerton
defines bias as under:

“My Lords, I could wish that the use of the word ‘bias’ should be
confined to its proper sphere. Its proper significance in my opinion is to denote a departure
from the standard of even handed justice which the law requires from those who occupy
judicial office, or those who are commonly regarded as holding a quasi-judicial office, such
as an arbitrator.”

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 recognises two principles of natural justice:

i. 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
ii. 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.

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

In Cottle v. Cottle 1939, 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.

In Maneklal v. Premchand AIR 1995 S.C 425, 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 A.K. Kraipak v. Union of India, one N was a candidate for
selection to the Indian Foreign service and was also a member of the Selection Board. N did
not sit in the board when his own name was considered. Name of N was recommended by the
board and he was selected by the Public service commission. The candidates who were not
selected filed a writ petition for quashing the selection of N on the ground that the principles
of natural justice were 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 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.

Pecuniary Bias
Whenever there is a monetary interest involved it is said to be a kind of pecuniary bias. The
adjudicator who is deciding the issue in the proceedings should not have any pecuniary
interest, else the decision is vitiated. The least pecuniary interest in the subject matter of the
litigation will disqualify any person from acting as a judge, even though it is not proved that
the decision is in anyway affected.

In Dr Bonham (1610) 8 Co., Dr Bonham, a doctor of Cambridge University was fined by the
College of Physicians for practicing in the city of London without license of the college. The
Statute under which the college acted provided that fines should go half to the King and half
to the college. The claim was disallowed by Coke C.J as the college had a financial interest in
its own judgement and was a judge in its own cause.
 Dimes v. Grant Junction Canal (1852) 3 HL 759: 17 Jur 73, is an important case
in this regard. Lord Cottenham, the judge who sat in a previous case in which canal company
that brought a case in equity against a landowner. Lord Cottenham was later discovered to
have had shares in said company. The case was held stating that although there was no
suggestion that the Lord Chancellor had in fact been influenced by his interest in the
company, no case should be decided by a judge with a financial interest in the outcome. It
was held that the Lord Chancellor was disqualified from sitting as a judge in the case because
he had an interest in the action.
Lord Campbell in this case observed
“No one can suppose that Lord Cottenham could be in the
remotest degree, influenced by the interest that he had in this concern; but it is of the last
importance that the maxim, that no one is to be a judge in his own case, should be held
sacred…and it will have a most salutary influence on tribunals when it is known that this
high court of last resort, in a case in which the lord chancellor of England had an interest,
considered that his decree was on that account a decree not according to law, and was set
aside. This will be a lesson to all inferior tribunals to take care not only that in their decrees
they are not influenced by their personal interest, but avoid the appearance of labouring under
such an influence.”
In Jeejeebhoy v. Asstt. Collector of Thana Air 1965 SC 1096, Chief
Justice Gajendragadkar reconstituted the bench on objection being taken on behalf of
interveners in court on the ground that Chief Justice, who was a member of the bench, was
also a member of the cooperative society foe which the disputed land had been acquired.

However, the rule against bias will not be applied where the judge,
though having a financial interest, has no direct financial interest in the outcome of the case.
Therefore the court in R v. Mulhvihill 1990 did not set aside the conviction of the accused on
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 real likelihood of bias, administrative action will not be quashed.

Official 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 English law on this matter is that unless the objector shows that a judge has acted in an
unusual manner to support his belief, he can’t be disqualified…

Suppose a Minister is empowered to frame a scheme after hearing the

objections is subject to the principles of natural justice insofar as they require affair hearing.
But the minister’s decision cannot be impugned on the ground that he has advocated the
scheme or he is not known to support it as a matter of policy. In fact, the object of giving
power to the minister is to implement the policy of the govt.
The same principle has been accepted in India also. In Gullapalli Nageshwara Rao v.
APSRTC AIR (1959) S.C 308, a scheme of nationalisation of motor transport was notified by
the state government inviting objections. The objections filed by the persons were heard by
Secretary, Department of Transport. The entire material was placed before the chief minister
who was also in charge of transport for approval. The validity of the scheme was challenged
on the ground that the person who heard the objections, viz, the secretary to government was
the same person who had heard the objections was in the same person who had initiated the
scheme and therefore, he was biased. Upholding the contention the Supreme Court observed
that the official who heard the objections was in substance a party to the dispute and hence
the principles of natural justice were violated.

In the second Gullapalli case, when the hearing

was given by the minister, the Supreme Court held that the proceedings were not vitiated by
bias. The court pointed out that there was distinction between the functions of a secretary and
those of minister. While the former was part of the department, the latter was only primarily
responsible for disposal of business pertaining to that department.

Departmental Bias
Departmental Bias arises when the functions of judge and prosecutor are combined in the
same department. The difficulty in combining the adjudication and prosecution functions in
the same person is that the accused may be prejudiced and he may be prone to accept
whatever proof is produced by the other party sponsoring conviction.

In Parthasarathy v. State of A.P AIR 1973 SC 2701, the person who

framed charges also acted as the enquiry officer in the disciplinary proceedings against a civil
servant. The Supreme Court held it to be wrong.
 In Meenglass tea estate V. Workmen A.I.R. 1963 S.C. 1719, the role of judge, prosecutor
and witness was played by the same person in an enquiry. In this case the respondents were
prosecuted for an alleged offence of assaulting the manger. The manager complained about
the assault to the owner and thereby prosecution was launched by the manger. The same
manger was asked by the owner as the presiding officer in the domestic enquiry to enquire
into the alleged assault. Thus he acted as a judge. He took his own evidence for proving the
assault and reported that the allegations were proved. The Supreme Court quashed the
findings of the enquiry on the ground of personal bias.

Test of Bias
The court’s 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 judgement 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.

In India, the real likelihood test is applied by the Supreme Court in A.K.
Kraipak 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.”
 In Ashok Kumar Yadav vs. State of Haryana, the court through Bhagwati C.J
has very succinctly 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 stricto sensu 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 Manek Lal vs. Dr Premchand the court laid down the bias in following words:
:In such cases the test is not whether in fact a bias has affected the judgement; 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.”
So as to the real test of likelihood of bias, what is relevant is reasonableness of the
apprehension in that regard in the mind of the party.

Exceptions to the rule against Bias

There are two exceptions two the rule against bias:

(i)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. In Ashok Kumar
Yadav v State of Haryana, 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. Ratna AIR 1987 SC 71, 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 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 Justice AIR 1985 Ker
245, 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 India (1995) 4 SCC 611 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.”
 (ii)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.

Conclusion
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.
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. Indiankanoon.org