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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.

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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:

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Personal Bias:
It arises out of the personal or professional relationship of friendship or hostility
 It arises out of the personal or professional relationship of friendship or hostility
between the authority and the parties. Its 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 courts 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.

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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 courts 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 persons
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.

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Therefore the real test for likelihood of bias is whether a reasonable person in
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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
 y y p
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.

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The supreme court in cases like murlidhar v. kadam singh and 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. Top
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.

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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

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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
 a . O t e o e a d, o judge as a u a be g s e pected to s t as a b a s eet o
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.

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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.

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:
Neil Prapworth, constitutional and administrative law” ,(Butterworths publication,
2000)
B. Schwartz, Administrative Law, 4th edition,(Little Brown and co., 1994)

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I.P. Massey Administrative Law, 6th edition, (Eastern Book and Co.,2007)

[1] (1924)1KB 256

[2] AIR 1960 SC 468
[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: divi_jain@legalserviceindia.com / Print This Article

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