administrative law

1. Rule against biasness
BY
DR. VIJAY SRIVASTAVA
ASSOCIATE PROFESSOR
ALS-AUMP

2. 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

3.  Bias means an operative prejudice, whether conscious or unconscious, in relation to a party or issue.
 Such operative prejudice may be the result of a preconceived opinion or a predisposition or a
predetermination to decide a case in a particular manner, so much so that it does not leave the mind
open.
 Therefore, the rule against bias strikes against those factors which may improperly influence a judge in
arriving at a decision in any particular case.
 The requirement of this principle is that the judge must be impartial and must decide the case
objectively on the basis of the evidence on record.
 In other words, a predisposition to decide for or against one party without regard to the merit of the
case is bias

4.  Therefore the maxim that a person cannot be made a judge in his own case.
 Crawford Bayley & co v/s Union of India AIR2006 SCC25,the supreme court
held that restarted that the doctrine of rules against bias comes into play if it is
shown that the officer concerned has a personal connection or personal interest
or as personally acted in the matter concerned and / or has already taken a
decision one way or the other which he may be interested in supporting.
 The principle nemo judex in causa sua will not apply where the authority has no
personal is with the person concerned.
 Therefore , where cases of malpractice and pilferage by consumers of electricity
were decided by the electricity board itself, the supreme court held that it is not
a violation of the rule against bias such cases are similar to income tax and sales
tax cases. Hyderabad vanaspathi ltd v Andhra Pradesh AIR 1998 SCC470.

5. Personal Bias:
 Personal bias arises from a certain relationship equation between the
deciding authority and the parties which incline him unfavourably or
otherwise on the side of one of the parties before him. Such equation may
develop out of varied forms of personal or professional hostility or
friendship.
 However, no exhaustive list is possible. Baidyanath mahapatra v State of
Orissa, AIR1989 SCC664,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.

6. Real likelihood of bias / reasonable suspicion of
bias
 However , in order to challenge an administrative action successfully on
the ground of personal bias it is essential to prove that there is a
reasonable suspicion of bias or a real likelihood of bias.
 The reasonable suspicion test looks mainly to outward appearance, and
the real likelihood. test focuses on the courts own evaluation of
possibilities.
 Ramanand Prasad singh v Union of India AIR1996 SCC64,the supreme
court held that participation in the selection committee as a member
where his brother was a candidate but was not selected his
inconsequential bias on which the whole select list cannot be quashed

7. Pecuniary Bias:
In judicial approach unanimous and decisive on the point that any financial
interest, howsoever small it may be, would vitiate administrative action. The
disqualification wil not be avoided by non-participation of the biased member in
the proceedings if he was present when the decision was reached.
Jeejeebhoy v collector AIR 1965 SC 1096,the chief justice reconstituted the
bench when it was found that one of the members of the bench was a member
of the cooperative society for which the land had been acquired. The Madras
High Court also quashed the decision of the decision of the collector who in
capacity as the chairman of the Regional Transport Authority had granted a
permit in favour of a cooperative society of which he was also a chairman.

8. Subject Matter Bias
 Those cases fall within this category where the deciding officer is directly,
or otherwise, involved in the subject-matter of the case. Here again mere
involvement would not vitiate the administrative action unless there is a
real likelihood of bias.
 Muralidhar v kadam singh AIR1954, the court refused to quash the
decision of the Election Tribunal on the ground that the wife of the
chairman was a member of the Congress party whose candidate the
petitioner defeated.

9. Departmental Bias:
 The problem of departmental bias is something which is ingerent in
the administrative process, and if not effectively checked, it may
negate the very concept of fairness in administrative proceedings.
 This problem came up nefore the supreme court in Hari K. Gawali v
Dy. Commr. of Police. In this case, an externment 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 separate officers, though they
were affiliated to the same department, there was no bias.

10. Policy Notion Bias:
 Bias arising out of preconceived policy notions is a very delicate problem
of administrative law. On one hand, no judge as a human being is
expected to sit as a blank sheet of paper and on the other, preconceived
policy notions may vitiate a fair trail. Recent trend in almost all jurisdictions
is that policy bias is not considered as bias which vitiates an administrative
action. In Bajaj Hindustan ltd. V . sir Shadilal enterprises ltd., court did
not allow a challenge to an administrative action on the ground of policy
bias.

11. Preconceived Notion Bias:
 This type of bias is also called as unconscious bias all person exercising
adjudicatory powers are humans with human prejudices, no matter some
persons are more human than others. This may include class bias and
personality bias.
 Every person is a product of a class and inherits some characteristics of the
class which may also reflect in his decision making process. In the same
manner, every persons personality is a combination of his biological and social
heredity which determine his values and attitudes in a way that may condition
his decision making process.
 The problem of unconscious bias is such which is inherent in any adjudication
and cannot be eliminated unless detected by some over action of the
authority, and is so detected can vitiate an administrative hearing if it has a
direct relation with decision. This may include a situation where the deciding
officer openly expresses his prejudice.

12. Bias On Account of Obstinacy:
 The supreme court has discovered a new category of bias arising from thoroughly
unreasonable obstinacy.
 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 judgement while sitting in appeal against his own judgement.
of course, a direct violation of the rule that no judge can sit in appeal against his own
judgement 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.


13. Doctrine of Necessity:
 The doctrine of necessity makes it imparative 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 courses of justice itself and the defaulting party would benefit from it.
 Amaranth choudhury v Braithwaite &co limited AIR 2002 SCC 290, on the ground
of misconduct, disciplinary authority has dismissed a person from service. He went in
appeal before the board of directors where the chairman cum managing director was
the same person who was also the chairman of the disciplinary authority and who did
not rescue himself, which was an alternative. The court held that the rule of necessity
cannot be applied to save the auction.

14. 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 vague suspicion of whimsical
capricious and unreasonable people. As the justice rooted in the
minds of the people and it is destroyed when the right minded
people go away thinking that the judge is biased.