A PROJECT REPORT

ON
DOCTRINE OF BIAS: AN ANALYSIS

ADMINISTRATIVE LAW
5TH SEMESTER
B.A.LL.B. (Hons.)

SUBMITTED TO: SUBMITTED BY:

DR. JASWINDER KAUR KUSHAL KEDIA
ASSISTANT PROFESSOR OF LAW ROLL NO. 16105
GROUP NO:14
Contents
PRINCIPLES OF NATURAL JUSTICE............................................... 2

DEFINITION ............................................................................................................. 2

NATURE AND SCOPE .............................................................................................. 3

OBJECT ..................................................................................................................... 3

HISTORICAL GROWTH ........................................................................................... 4

PRINCIPLES OF NATURAL JUSTICE..................................................................... 5

TWO PRINCIPLES OF NATURAL JUSTICE .................................................... 6

RULE AGAINST BIAS ........................................................................... 6

TYPES OF BIAS ......................................................................................................... 7

Personal Bias .......................................................................................................... 7

Pecuniary Bias ....................................................................................................... 8

Subject Matter Bias: ............................................................................................... 9

Departmental Bias .................................................................................................. 9

Preconceived Notion Bias .................................................................................... 11

Bias On Account Of Obstinacy............................................................................ 12

Tests of Bias ............................................................................................................. 13

Test of real likelihood of bias or real danger bias (Actual Bias) ......................... 13

The test of reasonable suspicion of Bias [Appearance Bias ................................ 15

Difference between two tests ............................................................................... 15

DOCTRINE OF NECESSITY .............................................................. 16

Necessity excludes bias ............................................................................................ 17

CONCLUSION ....................................................................................... 18
BIBLIOGRAPHY ................................................................................... 19

1
PRINCIPLES OF NATURAL JUSTICE

The Principles of Natural Justice have come out from the need of man to protect
himself from the excesses of organized power man has always appealed to someone
beyond his own creation. Such someone is the God and His laws, divine law or natural
law, to which all temporal laws and actions must confirm. In the words of Megarry, J.1
it is Justice that is simple and elementary, as distinct from justice that is complex,
sophisticated and technical. The principles of natural justice fundamental rules of
procedure for administrative action are neither fixed nor prescribed in any code. They
are better known than described and easier proclaimed than defined.

‘Natural justice’ has meant many things to many writers, lawyers and systems of law.
It has many colours and shades and many forms and shapes. According to de Smith2
the term ‘natural justice’ expresses the close relationship between the Common Law,
moral principles and it has an impressive ancestry. It is also known as substantial
justice, fundamental justice, universal justice or fair play in action.

In Wiseman v. Bomeman3, it is observed:

“The conception of natural justice should at all stages guide those who discharge
judicial functions is not merely an acceptable but is an essential part of the
philosophy of law.

DEFINITION

It is not possible to define precisely and scientifically the expression ‘natural justice‘.
Though highly attractive and potential, it is a vague and ambiguous concept and,
having been criticised as ‘sadly lacking in precision”, has been consigned more than
once to the lumber-room. It is a confused and unwarranted concept and encroaches on
the field of ethics". ‘Though eminent Judges have at times used the phrase 'the
principles of natural justice‘, even now the concept differs widely in countries usually
described as civilised.

It is true that the concept of natural justice is not very clear and, therefore, it is not
possible to define it; yet the principles of natural justice are accepted and enforced. In

1
John v. Rees, (1969)2 All ER 274
2
Abbott v. Sullivan, 905 F.2d 918 (6th Cir. 1990)
3
Haryana Financial Corporation v. Kailash Chandra Ahuja, JT (2008) 8 SCC 70.

2
reply to the aforesaid criticism against natural justice, Lord Reid in the historical
decision of Ridge v. Baldwin4 observed:

“In modern times opinions have sometimes been expressed to the effect that natural
justice is so vague as to be practically meaningless. But I would regard these as
tainted by the perennial fallacy that because something cannot be cut and dried or
nicely weighed or measured therefore it does not exist.

NATURE AND SCOPE

Natural justice is a branch of public law. It is a formidable weapon which can be

wielded to secure justice to citizens. Rules of natural justice are ‘basic values’ which a
man has cherished throughout the ages. They are embedded in our constitutional
framework and their pristine glory and primacy cannot be allowed to be submerged by
exigencies of particular situations or cases. Principles of natural justice control all
actions of public authorities by applying rules relating, to reasonableness, good faith
and Justice, equity and good conscience. Natural justice is a part of law which relates
to administration of justice. Rules of Natural justice are indeed great assurances of
justice and fairness.

OBJECT

There are certain basic values which a man has always cherished. They can be
described as natural law or divine law. As a reasonable being, a man must apply this
part of law to human affairs. The underlying object of rules of natural justice is to
ensure fundamental liberties and rights of subjects. They thus serve public interest.
The golden rule which stands firmly established is that the doctrine of natural justice
is not only to secure justice but to prevent miscarriage of justice. It’s essence in good
conscience in a given situation; nothing more but nothing less.5

4
Ridge v Baldwin [1964] AC 40.
5
Mohinder Singh Gill v. Chief Election Commr., (1978) 1 SCC 405

3
HISTORICAL GROWTH

The term ‘natural justice’ expresses the close relationship between the Common Law
and the moral principles and describes what is right and what is wrong; It has an
impressive history. It has been recognised from the earlier times: it is not judge-made
law.

In days bygone the Greeks had accepted the principle that ‘no man should be
condemned unheard’. The historical and philosophical foundation of the English
concept of natural justice may be insecure, nevertheless they are worthy of
preservation. Indeed, from the legendary days of Adam and of Kautilya’s Arthashastra
the rule of law has this stamp of natural Justice which makes it social justice.

The rules of natural justice were placed so high that it was declared that ‘no human
laws are of any validity, if contrary to this’, and that a court of law could disregard an
Act of Parliament if it is contrary to natural law.6 The origin and development of
equity in England owed much to natural law. The concept of natural law and natural
rights influenced the drafting of the Constitution of the USA. It also provided a basis
for International Law and international conventions, covenants and declarations.7

In deciding whether Administrative action also comes within the scope of natural
justice, it was decided by the courts in Maneka Gandhi’s8 case that

“The frontier between judicial and quasi-judicial determination on the one hand
and an executive or administrative determination on the other has become
blurred. The rigid view that principles of natural justice apply only to judicial
and quasi-judicial acts and not to administrative acts no longer holds the field.
The court is not intended to sit in appeal over the decision of the Government”.

Moreover principles of natural justice apply not only to legislation or state action but
also apply where any tribunal, authority or body of persons, not falling within the
definition of state under Article 12, is charged with the duty of deciding the matter. In

6
Mohinder Singh Gill v. Chief Election Commr., (1978) 1 SCC 405 (432).
7
Union of India v. Tulsiram Patel, (1985) 3 SCC 398.
8
Maneka Gandhi v. Union Of India, 1978 AIR 597, 1978 SCR (2) 621.

4
such a case, the principles of natural justice require that it must decide the matter
fairly and impartially.9

PRINCIPLES OF NATURAL JUSTICE

As stated above, ‘natural justice’ has meant many things to many writers, lawyers,
jurists and systems of law. It has many colours, shades, shapes and forms. Rules of
natural justice are not embodied rules and they cannot b: imprisoned within the strait-
jacket of a rigid formula.

In Russel v. Duke of Norfolk10, Tucker, LJ. observed:

“There are, in my view, no words which are of universal application to every kind of
inquiry and every kind of domestic tribunal. The requirements of natural justice must
depend on the circumstances of the case, the nature of the inquiry, the rules under
which the tribunal is acting, the subject-matter that is being dealt with, and so forth.”

In the oft-quoted passage from Byrne v. Kinematograph Renters Society Ltd11 , Lord
Harman enunciates:

“What, then, are the requirements of natural justice in a case of this kind? First, I
think that the person accused should know the nature of the accusation made;
Secondly, that he should be given an opportunity to state his case; and thirdly, of
course, that the tribunal should acting good faith. I do not think that there really is
anything more.”

The same view is taken in India. In Union of India v. P.K. Roy12, speaking for the
Supreme Court, Ramaswami, J. observed:

“The extent and application of the doctrine of natural justice cannot be imprisoned
within the strait-jacket of a rigid formula. The application of the doctrine depends
upon the nature of the Jurisdiction conferred on the administrative authority, upon the
character of the rights of the person affected, the scheme and policy of the statute and
other relevant circumstances disclosed in the particular cases.

9
Delhi Transport Corporation v. D.T.C. Mazdoor Congress, 1991 AIR 101
10
(1949) 1 All ER 108 (118): 65 TLR 225.
11
(1958) 2 All ER 579 (599).
12
1986 Supp SCC 617(635)

5
 TWO PRINCIPLES OF NATURAL JUSTICE
The two principles of natural justice are:

 Nemo debet esse judex in propria causa - No one should be made a judge in his own
case, or the rule against bias.
 Audi alteram partem - Hear the other party, or the rule of fair hearing, or the rule that
no one should be condemned unheard.

RULE AGAINST BIAS

Rule against bias (Nemo iudex in Causa sua or Nemo debet esse judex in proproa
Causa i.e. No man shall be a judge in his own case).

According to the 'Lectric Law Library's Lexicon, “Any mental condition that would
prevent a judge or juror from being fair and impartial is called bias. A particular
influential power which sways the judgment; the inclination or propensity of the
mind towards a particular object. It may be ground for disqualification of the judge
or juror in question.”

It is also defined as, “A predisposition or a preconceived opinion that prevents a

person from impartially evaluating facts that have been presented for
determination; a prejudice.”

But we have to keep in mind the observations of Justice Frank of United States in
re. Linahan : - “If, however, bias and partiality be defined to mean 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. The human mind, even at infancy, is no blank piece of paper.
We are born with the predispositions and the process of education, formal and
informal, create attitudes which precede reasoning in particular instances and
which therefore, by definition are prejudices.”

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

6
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. Sussex13, 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.

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
It arises out of the personal or professional relationship of friendship or hostility
between the authority and the parties. It’s the human nature that we try to give
favourable decision to our friends or relatives, whereas use the same as a weapon
against the enemies.

Apex court’s decision in Mineral Development Corporation Ltd. V. State of Bihar 14,
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.

Similarly in Baidyanath Mohapatra v. state of Orissa15, the Supreme Court quashed

the order of the tribunal confirming premature retirement on the ground that the

13
(1924)1KB 256
14
AIR 1960 SC 468
15
(1989)4 SCC 664

7
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:

1. Reasonable Suspicion Of Bias: looks mainly to outward appearance.

2. Real Likelihood Of Bias: Focuses on court’s 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
person’s state of mind.

In the case of Jiwan K. Lohia v. Durga Dutt Lohia16, 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.

Therefore the real test for likelihood of bias is whether a reasonable person in
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
particular manner.

The reason is plain enough as per Lord Denning17, Justice must be rooted in the
confidence and the confidence is destroyed when right minded people go away
thinking that the judge is biased.

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 Council18, 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.

16
(1992) 1 SCC 56
17
Lord Denning : The Discipline Of Law,(1982)pg.87
18
(1933) 2 KB 696.

8
In Jeejeebhoy vs. Astt. Collector,Thana19 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. Mulvhill20 , 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.

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. Curling21 , 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.

In Gulla palli Nageshwara Rao v. APSRTC22, the Supreme Court quashed the
decision of A.P. government . nationalizing road transport on the ground that the
secretary 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
favour of a policy in the public interest is not considered as legal bias vitiating
administrative actions.

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.

19
AIR 1965 SC 1096.
20
(1990) 1 AllER 436.
21
(1881) 45 LT 439.
22
AIR 1959 SC 308.

9
In Gullapalli Nageswara Rao v. APSRTC23 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.

This problem came up before the Supreme Court in Hari v. Dy. Commr. of Police24.
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 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 Haryana25, 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.

23
AIR 1959 SC 308.
24
1956 SCR 506.
25
1985 AIR 1651.

10
Preconceived Notion Bias
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
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.N26, 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. APSRTC27 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.

26
1973 AIR 974.
27
AIR 1961 SC 82.

11
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.

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.

12
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.

Tests of Bias

There are two tests applied by the judiciary to ascertain bias. Them

Test of real likelihood of bias or real danger bias (Actual Bias)

The real likelihood of bias explained that the test for disqualifying' whether the facts,
as assessed by the Court, give rise to a real likelihood bias. Likelihood was given the
meaning of possibility rather probability.

Regarding, real likelihood bias, J . Denning says, “In considering whether there was a
real likelihood of bias, the court does not look at the mind of the justice himself or at
the mind of the Chairman of the Tribunal, or whoever may be, who sits in a judicial
capacity. It does not look to see if there was a real likelihood that he would, or did, in
fact favour one side at the expense the others. The Court looks at the impression
which would be given to other people. Even if he was as impartial as could be,
nevertheless if right minded persons would think that, in the circumstances, there was
a real likelihood bias on his part, then he should not sit. There must be circumstances
for which a reasonable man would think it likely or probable that the justice
Chairman, as the case may be would, or did, favour one side unfairly at the expense of
the other. The Court will not inquire whether he did , in fact favour one side unfairly.
Suffice it that reasonable people might think he did. The reason is plain enough.
Justice must be rooted in confidence and confidence is destroyed when right minded
people go away thinking “The judge was biased.”

The test thus means “at least substantial possibility of blue". Until recently, “was for
the court to decide by their own evaluation whether such a likelihood existed in the
circumstances of the case. The test was given somewhat broader content and was held,
that whether there was a real likelihood at him: depended not upon what actually was
done but upon what might appear to be done. It was said that the court would judge

13
the matter as a reasonable man would judge any matter in the conduct of his own
business.

In Halsbury’s Laws of England, it is stated that the test of bias is “whether a

reasonable intelligent man fully appraised of all the circumstances, would feel a
serious apprehension of bias.

This test has been followed in India too. In State of Punjab v. MK. Khanna28, the
Chief Secretary of Punjab Government issued orders with the approval of the Chief
Minister referring two cases to CBI. But on change of Government and the Chief
Minister, the Chief Secretary was changed. A charge-sheet was also issued against
him containing allegations including bias in issuing notification referring the cases to
CM. The court observed:

“The test, therefore, is as to whether there is a mere apprehension of bias or there is a

real danger of bias and it is on this score that the surrounding circumstances must also
ought to be collated and necessary conclusion drawn therefrom. In the event, however,
the conclusion is otherwise that there is existing a real danger of bias administrative
action cannot be sustained. If on the ether hand allegations pertain to rather fanciful
apprehension in administrative action, question of declaring them to be unsustainable
on the has therefore would not arise.

According to De Smith the test of real likelihood of bias, which has been employed in
a number of leading cases, is based on the reasonable apprehension of a reasonable
man fully appraised of the facts, that justice mu, be rooted in confidence and the
confidence is destroyed when right minded people go away thinking that the judge
was biased. This explains that real likelihood test focuses on the courts own
evaluation of probabilities. It is because of the maxim that “justice should not only be
done but should be seen to be done.”

It is real danger or real likelihood of bias which renders an action invalid. The real test
of real likelihood of bias is whether a reasonable men having relevant information,
would have thought that bias was likely and whether the authority concerned was
likely to be disposed to decide the matter in particular. It is based on the public
projection i.e,. to look from the angle of party before the judge. One criticism is that

28
AIR 2001 SC 343.

14
the emphasis on the view of the facts gives insufficient emphasis to the perception of
the public.

The test of reasonable suspicion of Bias [Appearance Bias] .

The reasonable suspicion test explains that justice must be seen to be done, and that
“no person should adjudicate in anyway if it might reasonably be thought that he
ought not to act because of some personal interest.”

The reasonable suspicion test asks whether a reasonable and fair-minded person
sitting in court and knowing all the relevant facts would have reasonable ‘Suspicion
that a fair trial for the litigation is not possible.

Difference between two tests

Wade and Forsyth say that in many cases, both the tests, the real likelihood ”bias and
reasonable suspicion bias lead to the same result, ‘since’ likelihood is given the
meaning of possibility rather than probability. F or, if there was no real possibility of
bias, no reasonable person would suspect.

In S. Parthasarathi v. State of Andhra Pradesh29, Mathew J . observed. “

The tests of "real likelihood" and "reasonable suspicion" are really inconsistent with
each other. We think that the reviewing authority must make a determination on the
basis of the whole evidence before it whether a reasonable man would in the
circumstances infer that there is real likelihood of bias. The court must look at the
impression which other people have. This follows from the principle that justice must
not only be done but seen to be done. If right minded persons would think that there is
real likelihood of bias on the part of an inquiring officer, be must not conduct the
enquiry; nevertheless, there must be a real likelihood of bias. Surmise or conjecture
would not be enough. There must exist circumstances from which reasonable men
would think it probable or likely that the inquiring officer will be prejudiced against
the delinquent. The court will not inquire whether he was really prejudiced. If a
reasonable man would think on the basis of the existing circumstances that. he is
likely to be prejudiced, that is sufficient to quash the decision [see per Lord Denning,
M.R. in Metropolitan Properties Co, (F.G.C.) Ltd. v. Lannon and Others, etc.30. We

29
AIR 1973 SC 2701.
30
[1901] 2 K. B. 357.
15
should not, however, be understood to deny that the court might with greater
propriety apply the "reasonable suspicion" test in criminal or in proceedings
analogous to criminal proceedings.

There is a real difference between the real likelihood test and reasonable suspicion
test. ‘Suspicion’ suggests a belief that something that may not be provable could still
be possible. ‘Reasonable’ suggests that the belief cannot be fanciful. Here the issue is
whether it is reasonable for the one to harbour the suspicious in the circumstances,
even though the suspicious behaviour could be innocent. On the other hand,
‘likelihood’ points towards something being likely, and ‘real’ suggests that this must
be substantial rather than imagined. Here then, the inquiry is directed more towards
the actor than the otherwise. The issue is the degree to which a particular: event is not
likely or possible.

DOCTRINE OF NECESSITY

The term Doctrine of Necessity is a term used to describe the basis on which
administrative actions by administrative authority, which are designed to restore
order, are found to be constitutional. The maxim on which the doctrine is based
originated in the writings of the medieval jurist Henry de Bracton, and similar
justifications for this kind of administrative action have been advanced by more recent
legal authorities, including William Blackstone. In modern times, the term was first
used in a controversial 1954 judgment in which Pakistani Chief Justice Muhammad
Munir validated the extra constitutional use of emergency powers by Governor
General, Ghulam Mohammad. In his judgment, the Chief Justice cited Bracton's
maxim, 'that which is otherwise not lawful is made lawful by necessity, thereby
providing the label that would come to be attached to the judgment and the doctrine
that it was establishing. The Doctrine of Necessity has since been applied in a number
of Commonwealth countries, and in 2010 was invoked to justify administrative
actions in Nepal. What is objectionable is not whether the decision is actually tainted
with bias but that the circumstances are such as to create a reasonable apprehension in
the minds of others that there is a likelihood of bias affecting the decision .The basic
rule underlying this principle is that ‘Justice must not only be done but must also
appear to be done.

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Necessity excludes bias

An adjudicator who is subject to disqualification on account of bias may nevertheless,

can validly adjudicate if: No other person competent to adjudicate is available; A
quorum cannot be formed without him; or No other competent tribunal can be
constituted. In such situation the rule against bias has to give way to the necessity. If
the choice is between allowing a biased person to adjudicate or to stifle the action
altogether, the choice must fall in favour of the former, as it is the only way to
promote decision-making. Where statute empowers a particular minister or official to
act, he will naturally be the one and the only person who can do so. There is no way
escaping the responsibility, even if he is personally interested. Transfer of
responsibility is, indeed a recognized type of ultra vires. In one case it was
unsuccessfully argued that the only minister competent to confirm a compulsory
purchase order for land for an airport had disqualified himself by showing bias and
that the local authority could only apply local act of parliament. A governor of a
colony may validly assent to an act of indemnity for his own actions since otherwise
the act could not be passed at all. 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 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’ is must be confined to its proper place. If
bias arising out of preconceived notions means the total absence of preconceptions in

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the mind of the judge, then no one has ever had a fair trial, and no one ever will.
Therefore, unless the preconceived notions are such that it has the capacity

CONCLUSION

In the opinion of the Authors, direct (as distinguished from indirect or remote)
pecuniary interest, however small or slight it may be, will disqualify a person from
acting as a Judge. In case of other interests, however, the test should be of ‘reasonable
likelihood of bias. It must be based on reasonable apprehension of a reasonable man
fully appraised of all the facts. It is no doubt desirable that all Judges, like Caesar’s
wife must be above suspicion. But it would be too much to hold that only those
‘people who cannot be suspected of improper motives’ are qualified to discharge
judicial functions, else to quash decisions on the basis of suspicions of fools or other
capricious and unreasonable people’,

A ground reality cannot be ignored that Judges are also human rights and they have
their likes and dislikes, preferences and prejudices and it is too much to expect them
to act as a machine uninfluenced by worldly affairs.

The following observations of Frank, J . in Linahan, Re31 are worth quoting: “If,
however, ‘bias’ and ‘partiality’ be defined to mean the tot?!l absence of
preconceptions in the mind of the Judge, then no one has ever had a fair trial, and no
one ever will. The human mind, even at infancy, is no blank piece of paper. We are
born with predispositions and the processes of education, formal and informal, create
attitudes which precede reasoning in particular instances and which, therefore, by
definition are prejudices.

Reasonable apprehension in the mind of a reasonable man is necessary. Such

reasonable apprehension must be based on cogent materials. Moreover, normally a
court will not uphold an allegation of bias against a person holding high constitutional
status, such as, Election Commissioner. Again, there must be reasonable evidence to
satisfy that there was a real likelihood of bias. Vague suspicions of whimsical,
capricious and unreasonable people should not be made the standard to regulate
normal human conduct.32

31
(1943) 138 F 2nd 650.
32
International Airport Authority v. K.D. Bali, 1988 AIR 1099, 1988 SCR (3) 370

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BIBLIOGRAPHY

Articles

1. Administrative law: Doctrine of necessity, doctrine of legitimate expectations

and doctrine of delegation , Saad Abdulbaqi Sabti,, YP Rama Subbaiah,
International Journal of Law, Volume 3; Issue 3; May 2017; Page No. 59-62.
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Muhammad Zubair, Sadia Khattak, Journal of Applied Environmental and
Biological Sciences.
3. The Principles of natural justice in public administration and administrative
law, Dr. S. B. M. Marume, R. R. Jubenkanda, C. W. Namusi.

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1. Massey IP. Administrative Law; 7th ed.; EBC. 2008.

2. Basu Durga Das. Administrative Law, 6th ed.; Kamal Law House, Kolkata.
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3. Pandey TN. Rule of Natural Justice in the Administration of Law. Taxman.
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4. Jain MP, Jain SN. Principles of Administrative Law; 6th Enlarged ed.;
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6. Wade HWR, Forsyth CF. Administrative Law; 10th edn.; Oxford. 2009.
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