TOPIC – DOCTRINE OF BIAS

SUB-TOPIC: THE PHENOMENON OF PERSONAL BIAS: REAL BIAS V. SUSPICION

OF BIAS

SUBMITTED BY : SUBMITTED TO:

AVIK AGGARWAL DR. JASWINDER

ASSITANT
ROLL- 19071 PROFESSOR OF
LAW

GROUP- 14 RGNUL, PUNJAB

RAJIV GANDHI NATIONAL UNIVERSITY OF LAW, PUNJAB

 ACKNOWLEDGEMENT

I would like to thank my teacher Dr. JASWINDER KAUR for giving me the opportunity to
work on this project. Her guidance has been of utmost importance. I am grateful for the
books available to us students at the institute’s e-library which enabled me to research on the
given topic with ease. This project would not have been possible without the kind support of
many individuals including my family. I would like to extend my sincere thanks to all of
them. My thanks and appreciation also goes to my fellow batch mates in developing the
project and the people who helped me out with the best of their ability.

-AVIK AGGARWAL

RAJIV GANDHI NATIONAL UNIVERSITY OF LAW, PUNJAB

 SUPERVISOR’S CERTIFICATE

Dr. JASWINDER KAUR

(Assistant Professor of Law)

Rajiv Gandhi National University of Law, Punjab

This is to certify that the project on the topic- “The Phenomenon of Personal Bias: Real
Bias v. Suspicion Of Bias”, submitted to Ms. Sonika of Rajiv Gandhi National University of
Law, Punjab, in partial fulfilment of the requirement of the B.A.LL.B.(Hons) Course is an
original and bona fide research work carried out by Mr. Avik Aggarwal under my
supervision and guidance. No part of this project has been submitted to any University for
the award of any degree or diploma, whatsoever.
 TABLE OF CONTENTS

1. INTRODUCTION........................................................................................................................ 1

1.1 ORIGIN AND HISTORICAL PERSPECTIVE ................................................................................................. 2

1.2 TWO PILLARS OF PRINCIPLE OF NATURAL JUSTICE............................................................................. 3

2. TYPES OF BIAS .......................................................................................................................... 4

2.1 PERSONAL BIAS .............................................................................................................................................. 4

2.2 PECUNIARY BIAS ............................................................................................................................................ 4
2.3 SUBJECT-MATTER BIAS................................................................................................................................. 5
2.4 DEPARTMENTAL BIAS/INSTITUTIONAL BIAS .......................................................................................... 5
2.5 POLICY NOTION BIAS ..................................................................................................................................... 6
2.6 UNCONSCIOUS BIAS ...................................................................................................................................... 6

3. PERSONAL BIAS ....................................................................................................................... 8

3.1 MEANING AND SCOPE ................................................................................................................................... 8

3.3 INDIAN CASE LAWS ....................................................................................................................................... 9

4. TEST OF PERSONAL BIAS .................................................................................................... 13

5. CRITICAL ANALYSIS OF THE TEST VIA CASE STUDY ............................................... 16

6. CONCLUSION .......................................................................................................................... 20
 1. INTRODUCTION

“Nemo in propria causa judex, esse debet”- No one should be made a judge in his own
cause.1

Principles of natural justice which are the judge made rules and still continue to be a
classical example of judicial activism were developed by the courts to prevent accidents in
the exercise of the outsourced power of adjudication to the administrative authorities so is
the above principle. For some three or four hundred years Anglo-American courts have
actively applied two principles of natural justice. However, this reduction of the concept of
natural justice should not be allowed to obscure the truth that natural justice goes to the
“very kernel of the problem of administrative justice”. In India also there is no statute laying
down the minimum procedure which administrative agencies must follow while exercising
decision making powers.

There is, therefore, a bewildering variety of administrative procedure. Sometimes the statute
under which the administrative agency exercises power lays down the procedure which they
must follow but at times the administrative agencies are free to devise their own procedure.
However, courts have always insisted that the administrative agencies must follow a
minimum of fair procedure. This minimum fair procedure gives birth to few principles and
doctrines one of which is “Rule against Bias” also known as “Doctrine of Bias”, wherein
the crux of the doctrine is: “Nemo in propria causa judex, esse debet”. 2

The doctrine says that “Nemo judex in re sua” means that no one can be a judge in his own
cause. A judge will be disqualified from determining any case in which he may be, or may
fairly be suspected to be biased. So important is this rule that Coke supposed, as we have
seen, that it should prevail even over an Act of Parliament; and he reported a case where the
Court of Chancery resolved that the equity judge in Chester was incompetent to judge a case
in which he himself was a party.

1
J. M. G. Sweeney, Lord O'Brien's Doctrine of Bias, 7 Irish Jurist (N.S.) 17 (1972).
2
Matthew Groves, The Rule against Bias, 39 HONG KONG L.J. 485 (2009).

1
 1.1 ORIGIN AND HISTORICAL PERSPECTIVE

Natural justice can be traced back to the Roman and Greek empires. Principles of natural
justice are believed to have originated from Rome, but the principles are not new to India.
The concept of procedural fairness and equality are embedded in India’s cultural
heritage. Principles of fair hearing and rule against bias were well observed in ancient India.
When there was no codified law, justice was done based on conscience. According to the
Bible, no sentence was passed for eating the fruit of knowledge before providing them with
a chance to defend themselves. The idea of natural justice is embedded in our cultural
heritage. The Indian concept of Dharma is akin to the idea of natural justice. It has also been
mentioned in Kautilya’s Arthashastra. The Indian emperor Ashoka also laid down the rules
to determine the nature of justice.3

Principles of natural justice are one of the fundamentals of administrative law. Initially, the
idea of natural justice was limited to judicial proceedings. With the emerging idea of the
welfare state, the powers of administrative authorities have increased and a result of the
same, it has become complicated to determine a fair procedure that each authority should
follow while adjudicating any quasi-judicial proceedings. With authority comes power,
which requires effective control. To prevent the abuse of power and miscarriage of justice,
the principles of natural justice have evolved as safeguards against injustice.4

With the changing trends and developing economies, the concept of Natural Justice has
undergone great transformations. Principles of natural justice do not have a straight-jacket
formula but depend on the facts of the case, the governing statutes etc. The Apex Court held
that ‘the essence of natural justice is good conscience in a given situation, nothing more or
nothing less’.5

3
Amy Maitner, Judicial Bias against LGBT Parents in Custody Disputes, 30 U. FLA. J.L. & PUB. POL'y 109
(2019).
4
Bridgette Toy-Cronin, Waiver of the Rule against Bias, 9 AUCKLAND U. L. REV. 850 (2002).
5
Union of India v. Tulsiram Patel, AIR 1985 SC 1416.

2
 1.2 TWO PILLARS OF PRINCIPLE OF NATURAL JUSTICE

Though the principles of natural justice have not been codified, the Apex Court has held the
principle to be legally valid in various cases. 6 The principles of natural justice are based on
the following two maxims:

• Audi alteram partem

• Nemo judex in causa sua

The principles lay down the standards that are to be adhered to in the process of decision
making.7 They ensure that every individual is provided with the opportunity of being heard.
Moreover, they ensure that the decision is being made by an independent judge.

Audi alteram partem, also known as the hearing rule. It states that no one should be
condemned unheard. In any situation or circumstance where an individual’s right or liberty
is being affected, he should be provided with the opportunity of being heard. The two
essentials of this rule are notice and hearing.8 It is important to note that serving notice is
not a mere technical formality but should be sufficient and provide all the important
information.9 Secondly, both the parties must have an equal opportunity of being heard. A
fair hearing constitutes the right to know the evidence whether oral or documentary, the
charges imposed, an opportunity to present the defence and the right to cross-examine the
witnesses.10

6
Vakauta v. Ketty, (1989) 167 CLR 568.
7
Mineral Development Ltd. v. State of Bihar, AIR 1960 SC 468.
8
Meenglas Tea Estate v. Workmen, AIR 1963 SC 1719.
9
Graham Van Der Leeuw, Courts Martial, Judicial and Administrative Tribunals, and the Rule against Bias, 110
S. AFRICAN L.J. 430 (1993).
10
Australian Workers’ Union v. Bowen (No. 2), (1948) 77 CLR 601.

3
 2. TYPES OF BIAS

“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. In other words, “bias” may be generally defined as partiality or
preference which is not founded on reason and is actuated by self-interest — whether pecuniary
or personal.11 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. The dictionary meaning of the word “bias” also suggests
“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”.12 In other words, a Bias manifests itself
variously and may affect a decision in a variety of ways.

2.1 PERSONAL BIAS

Any relationship arising between the adjudicating authority and the parties can lead to personal
bias. The Adjudicating authority might be a friend, relative or might have any professional
relations. Any personal relation might give rise to enmity against one party and favouritism to
the other party.

In Meenglass Tea Estate v. Workmen, the inquiry conducted by a manager was considered to
vitiate as he acted as a judge in his case. In this case, the manager was accused of beating the
workman, and the inquiry for the said allegation was conducted by the Manager himself, which
is against the principles of Natural Justice.13

2.2 PECUNIARY BIAS

When the adjudicating authority has any monetary or financial interest in the dispute,
pecuniary bias arises. Any kind of pecuniary interest in the dispute will invalidate the
proceedings and disqualify the person acting as a judge. In Jeejeebhoy v Collector, the

11
SMITH, JUDICIAL REVIEW OF ADMINISTRATIVE ACTION 536 (5th Edn. 1961).
12
Asher Maoz, Rule against Bias - Who May Invoke It, and When, 12 Isr. L. REV. 541 (1977).
13
AIR 1963 SC 1719.

4
 bench was reconstituted when it was found that one of the members of the bench had a
pecuniary interest where he was a member of the Cooperative society, for which the land
was being acquired14. In Dimes v. Grant Junction Canal, the House of the Lords held that
Lord Chancellor failed to mention his interests in the Respondent’s Company and that was
sufficient to invalidate the decision given by Lord Chancellor on the ground of pecuniary
bias.15

2.3 SUBJECT-MATTER BIAS

Subject matter simply means the issue in question. This type of situation arises where the
adjudicating authority is directly or indirectly has any interest in the subject matter of the
dispute. In Gullampally Nageswara Rao v. A.P.S.R.T.C., the Apex Court held the decision of
upholding the scheme of nationalisation of motor transport by the Government Secretary to be
invalid, due to his interest in the subject matter, as he was the one who had initiated the process
of nationalization.16

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.

2.4 DEPARTMENTAL BIAS/INSTITUTIONAL BIAS

The problem of departmental bias is something which is inherent in the administrative process,
and if not effectively checked, it may negate the very concept of fairness in administrative
proceedings. The question of departmental bias was considered by the Supreme Court in
Nageswara Rao.17 In this case, the petitioner challenged the order of the government
nationalising road transport. 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 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. Thereafter, the Act was amended and the

14
AIR 1965 SC 1096.
15
(1852) 3 HCL 579.
16
AIR 1959 SC 308.
17
Id.

5
function of hearing the objection was given over to the Minister concerned.

2.5 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 trial. A classic case bringing this
problem to the forefront is Franklin v. Minister of Town and Country Planning (Franklin), also
known as the 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.”18

Though the court did not accept the challenge on the technical ground 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 policy convictions 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 nationalise road transport and appointed a committee to frame the scheme. The
Home Secretary was made a member of this committee.19

2.6 UNCONSCIOUS BIAS

All persons exercising adjudicatory powers are humans with human prejudices, no matter some
persons are more humans than others. This may include “class bias” and “personality” bias.
Every person is a product of a class and inherits some characteristics of that class which may
also reflect in his decision-making process. In the same manner, every person’s 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.20 The problem of unconscious bias is
such which is inherent in any adjudication and cannot be eliminated unless detected by some
overt action of the authority, and if so detected can vitiate an administrative hearing if it has a

18
[1947] 2 All ER 289.
19
1973 SCR (3) 222.
20
Roebuck v. National Union of Mineworkers, (1977) ICR 573.

6
direct relation with the decision. This may include a situation where the deciding officer openly
expresses his prejudice. The problem of bias arising from preconceived notions may have to
be 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.21

21
Ladies of the Sacred Heart of Jesus v. Armstrong, (1961) 29 DLR 373.

7
 3. PERSONAL BIAS

3.1 MEANING AND SCOPE

Personal bias arises from a certain relationship equation between the deciding authority and
the parties which incline him unfavorably 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. Mineral Development Corpn. Ltd. v. State
of Bihar is a typical case of personal bias. In this case, the petitioners were granted mining
license for 99 years in 1947.22 But in 1953, the Secretary of the Revenue Board sent a notice
to the petitioners to show cause within 15 days why the license should not be cancelled for
violations of Sections 10, 12 and 14 of the Mining Act, 1952. The petitioners submitted a
written reply denying the allegations. Two years later, the government issued a notification
cancelling the license. The action of the government was challenged on the grounds of personal
bias.

3.2 EVOLUTION OF THE CONCEPT OF PERSONAL BIAS

Several factors may give rise to personal bias. Here a judge may be a 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.23 In such cases, the judge is
conscientiously embarrassed and therefore, decides to recuse himself from the case irrespective
of the consent or “no objection” from the parties about his continued participation.24 In this
area, much will depend upon the factual nexus between the decision-maker and one of the other
parties involved in the dispute.25

22
AIR 1962 Pat 443.
23
GRIFFITH & STREET, PRINCIPLES OF ADMINISTRATIVE LAW 156 (4th Edn. 2009); WADE & FORSYTH,
ADMINISTRATIVE LAW398–399 (3rd ed. 2009).
24
Soli Sorabjee, Conflicts of Disinterest, INDIAN EXPRESS (Sep 07, 2020, 9:11 PM)
https://indianexpress.com/article/opinion/columns/conflicts-of-disinterest/.
25
Cottle v. Cottle, (1939) 2 All ER 535

8
English Cases that led to Evolution:

Where the Chairman of the Bench was a friend of the wife’s family, who had instituted
matrimonial proceedings against her husband and the wife had told the husband that the
Chairman would decide the case in her favour, the Divisional Court quashed the order.26 So
also, where a near relative of a judge was a witness, it was held that the judge was disqualified
from proceeding with the case.27 A decision was set aside on the ground that the Chairman was
the husband of an executive officer of a body which was a party before the tribunal. 28 On the
same principle, a Magistrate cannot convict his own employees for breach of contract on the
basis of a complaint filed by his bailiff.29 Again a decision was quashed when the Union
Secretary was both, a prosecutor and a judge.30 In Locabail (UK) Ltd. v. Bayfield Properties
Ltd.,31 the court of appeal considered several cases and indicated that it would be dangerous
and futile to attempt to define or describe factors which may or may not give rise to a real
danger of bias. Everything will depend upon the facts and circumstances based on sound
objections. In most cases, we think, the answer, one way or the other, will be obvious.

3.3 INDIAN CASE LAWS

Manak Lal v. Prem Chand, AIR 1958 SC 86

In order to decide a complaint for professional misconduct filed by Dr Prem Chand against
Manak Lal, an advocate of the Rajasthan High Court, the High Court appointed a tribunal
consisting of a senior advocate, once Advocate General of Rajasthan, as Chairman. The
decision of the tribunal was challenged on the ground of personal bias arising from the fact that
the Chairman had represented Dr Prem Chand in an earlier case. The Supreme Court refused
to quash the action holding that the Chairman had no personal contact with his client and did
not remember that he appeared on his behalf, and that, therefore, there seemed to be no “real
likelihood of bias”. However, the high professional standards led the court to quash the action
in the final analysis on the ground that justice should not only be done but must appear to have

26
R. v. Handley, (1921) 61 DLR 585.
27
I.P. MASSEY, ADMINISTRATIVE LAW 162-179 ( 8th ed., 2007).
28
CK TAKWANI, LECTURES IN ADMINISTRATIVE LAW 233-242 (12th ed., 2018).
29
R. v. Hoseason, (1811) 14 East 605
30
Frome United Breweries Co. Ltd. v. Bath JJ, 1926 AC 586
31
2000 QB 451.

9
been done.

A.K. Kraipak v. Union of India (Kraipak), (1969) 2 SCC 262

In this case, Naqishbund, who was the Acting Chief Conservator of Forests, was a member of
the selection board and also a candidate for selection to the All-India cadre of the Forest
Service. Though he did not take part in the deliberations of the board when his name was
considered and approved, the Supreme Court held that there was a real likelihood of bias, for
the mere presence of the candidate on the selection board may adversely influence the judgment
of the other member.

Mohapatra and Co. v. State of Orissa, (J. Mohapatra) (1984) 4 SCC 103

In this case, the State of Orissa had constituted an assessment committee in order to
recommend and select books of various authors and publishers on various school subjects.
Some of the persons whose books were in the selection list were members of the assessment
committee. The meeting of the committee was held. In this meeting when the books  200 were
being assessed, an individual member would withdraw when his book was taken up for
consideration. However, that member participated in deliberations when books of other
members were considered. The result was that the books of members of the assessment
committee were accorded approval. The action of the government was challenged on the
ground of bias. Quashing the action, the Supreme Court held that when some members whose
books were in the list for selection were members of the assessment committee, there is every
likelihood of bias. Actual bias is not material, but the possibility of such bias in all such cases.
Therefore, the court concluded that withdrawal of persons is not sufficient because the element
of quid pro quo with other members cannot be eliminated. It may be pointed out that the
doctrine of necessity does not apply in this case. 32

Ganga Bai Charities v. CIT (1992) 3 SCC 690.

In this case, a lawyer while acting as a special counsel for the Income Tax Department had
given his opinion that the assessee trust was not entitled to tax exemption. Later on he was
elevated as a judge of the High Court and seven years later heard and decided the same point,

32
S.P. SATHE, ADMINISTRATIVE LAW 123-143 (Lexis Nexis eds. 6th ed., 2010).

10
in a reference, against the trust. None of the parties brought this aspect before the judge during
hearing. On appeal, the Supreme Court rightly held that there was no real likelihood of bias as
opinion had been given seven years ago and the judge may not have remembered the routine
opinion given as a busy lawyer after a long lapse of time.

A plea of bias can be raised against a judge also and in this connection, reference may be made
to Sheonandan Paswan v. State of Bihar.33 In this case, the Supreme Court held that withdrawal
of criminal cases against the former Chief Minister of Bihar, Jagannath Misra, was valid. After
the judgment was delivered, Baharul Islam J who was one of the judges who decided the case
resigned only 46 days before his retirement to accept the Congress Party nomination for
election and become a Minister. In a  review petition, it was alleged that Islam J was biased
when he held the withdrawal of criminal cases against Misra, who also belonged to the
Congress Party, as valid.34 Though the petition was dismissed for technical reasons, yet fact
remains that judicial bias is a justiciable issue. However, it may be noted that if a party willingly
and with full knowledge of the facts submits to the jurisdiction of an administrative body then
it cannot, on being unsuccessful, raise the plea of bias.35 An objection on the ground of bias
must be taken immediately.

Tata Cellular v. Union of India (1994) 6 SCC 651

In this case, the tender for operating the Cellular Mobile Telephone Service in four
metropolitan cities filed by the son of one of the members of the Tender Evaluation Committee
had been accepted. This was challenged on the basis of personal bias. Applying the principle
of necessity, as the involvement of the Director General of the Telecommunications and
Telecom Authority was necessary in view of Section 3(6) of the Telegraph Act, 1885, the court
held that the involvement of his father as a member of the Tender Evaluation Committee did
not vitiate the selection on the ground of bias. It may be noted in this case that the Tender
Evaluation Committee was only a recommendatory body and selection was based on merit
through the normal procedure.36 Therefore, it is necessary to ascertain what role that person
played in the decision making against whom bias is alleged.

33
AIR 1983 SC 194.
34
KRISHAN KESHAV, ADMINISTRATIVE LAW 193-198 (13th ed., 2018).
35
G. Sarana v. University of Lucknow, (1976) 3 SCC 585: AIR 1976 SC 2428.
36
M.P. JAIN & S.P. JAIN, PRINCIPLES OF ADMINISTRATIVE LAW 234-242 (Lexis Nexis eds. 9th
ed. 2017).

11
12
 4. TEST OF PERSONAL BIAS

It is not necessarily what manifestly appears wrong is wrong. The Courts have developed two
tests to conclude whether the interest of the adjudicating authority in a matter is sufficient to
amounts to apparent bias. The two tests are the ‘real likelihood test’ and the ‘reasonable
suspicion test’.

The first test looks for a probability rather than a possibility of bias. In R V. Inner West London
Coroner ex. P. Dallagio,37 Lord Bingham says that despite the appearance of bias, the court
can examine all the relevant materials and satisfy itself that there was no danger of the alleged
bias having caused injustice, and the decision will be allowed to stand.

The second test focuses on the possibility of bias. This was discovered from the prominent
dictum in R v Sussex Justices by Lord Hewart CJ that Justice should not only be done but
manifestly be seen to be done. This test focused on a desire to ensure the faith of the public in
the administration of Justice.38

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 court’s own evaluation of possibilities. However, in practice,
the tests have much in common with one another and in the vast majority of cases, they will
lead to the same result. In this area of bias the real question is not whether a person was biased.
It is difficult to prove the state of mind of a person.39 Therefore, what the courts see is whether
there is reasonable ground for believing that the deciding officer was likely to have been biased.
In deciding the question of bias, judges have to take into consideration the human possibilities
and the ordinary course of human conduct. But, there must be real likelihood.

But, there must be real likelihood of bias and not mere suspicion of bias before the proceedings
can be quashed on the ground that the person conducting the proceedings is disqualified by

37
(1994) 4 AER 139, 162).
38
(1924) 1 KB 259.
39
A.P. SRTC v. Sri Satyanarayana Transports (P) Ltd., AIR 1965 SC 1303.

13
bias. The apprehension must be judged from a healthy, reasonable and average point of view
and not on mere apprehension and vague suspicion of whimsical, capricious and unreasonable
people. B.B. Rajwanshi v. State of U.P.40

Therefore, in Jiwan K. Lohia v. Durga Dutt Lohia, upholding the decision of the High Court
while removing an arbitrator appointed by the court on the ground of bias, the Supreme Court
observed that with regard to bias the  test to be applied is not whether in fact 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. The test of bias is whether a reasonable man,
in possession of relevant information, would have thought that the bias was likely and whether
the person concerned “was likely to be disposed to decide the matter only in a particular way”.
Therefore, the real test of “real likelihood of bias” is whether a reasonable man, in possession
of relevant information, would have thought that bias was likely and whether the authority
concerned was likely to be disposed to decide the matter in a particular way. What is relevant
is the reasonableness of the apprehension in that regard in the mind of the party.41

Hence the proper approach in case of bias for the court 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.42 Therefore, the test is not what actually
happened but the substantial possibility of that which appeared to have happened. Even if the
deciding officer was as impartial as could be, nevertheless if right-minded persons would think
that, in the circumstances, there was a real likelihood of bias, the deciding officer is
disqualified. Therefore, the court would not enquire whether there was bias in fact if reasonable
people might think that there was a bias. In the same manner in Jasvinder Singh v. State of
J&K, the Supreme Court held that in the absence of any specific allegation of bias against the
selection board or any member thereof, awarding of higher percentage of marks to those who
got lower marks in a written examination would not vitiate selection, especially, when there
were only a few negligible instances and  there was no conscious effort to bring some
candidates within the selection zone.43 In Federation of Railway Officers Assn. v. Union of
India, the court further held that allegation of bias on imaginary basis cannot be sustained. No

40
(1988) 2 SCC 415.
41
(1992) 1 SCC 56.
42
Ranjit Thakur v. Union of India, (1987) 4 SCC 611.
43
(2003) 2 SCC 132.

14
uniform cut and dried formula can be laid down to determine real likelihood of bias.44

In Charanjit Singh v. Harinder Sharma, the court held that there is a real likelihood of bias
when in a small place there is an election committee. Therefore, in order to sustain people’s
confidence in the administrative justice, it is desirable that even the slightest apprehension of
bias be removed because it would be the worst day for administrative justice if a person leaves
the chamber of an administrative authority feeling that the authority was biased. Therefore
courts in India and England have developed the doctrine of de facto prejudice, wherein if there
is violation of a rule which is directory, the element of de facto prejudice must be shown. It
will not be permissible to challenge administrative action merely on the basis of apprehension
of prejudice.45

44
(2003) 4 SCC 289.
45
(2002) 9 SCC 732.

15
 5. CRITICAL ANALYSIS OF THE TEST VIA CASE STUDY

Bias and Recusal of Judges: The Harsh Mander case

On May 2, 2019, a Bench of the Supreme Court presided by Chief Justice of India Ranjan
Gogoi substituted the name of Harsh Mander as petitioner in the Assam detention centres
matter with that of the Supreme Court Legal Aid Committee. CJI Gogoi thundered,

“Don’t even remotely think that we will recuse. We will not allow anyone to browbeat the
Institution. Recusal will be destructive for the Institution”.46

The Bench also comprising Justices Deepak Gupta and Sanjiv Khanna ordered,

“the inability, difficulty or handicap of a Judge to hear a particular matter is to be perceived

by the Judge himself and no one else.”

It thus dismissed the application for recusal of CJI Gogoi from hearing the case relating to
identification and deportation of illegal immigrants particularly in Assam.

My Lords, with great respects, you are not right in what you did. Therefore, let me address the
correct position of law. In a 1987 judgment, Ranjit Thakur v. Union of India, Justice MN
Venkatachalaiah affirmatively held,

“As to the tests of the likelihood of bias what is relevant is the reasonableness of the
apprehension in that regard in the mind of the party. The proper approach for the Judge is not
to look at his own mind and ask himself, however, honestly, “Am I biased?”; but to look at the
mind of the party before him.” 47

In doing so, he relied upon two of the most relevant English authorities laying down the law
on the subject.

46
Why Harsh Mander Wanted CJI Gogoi to Recuse Himself From Assam Case, THE WIRE (Sep 02, 2020, 12:36
PM) https://thewire.in/law/full-text-harsh-mander-cji-ranjan-gogoi-recuse-assam-detention-centres.
47
1988 SCR (1) 512.

16
Referring to the proper test, Ackner, L.J. in Regina v. Liverpool City Justices, ex parte Topping
said:

“Assuming, therefore, that the magistrates had applied the test advised by Mr Pearson: ‘Do I
feel prejudiced?’ then they would have applied the wrong test, exercised their discretion on the
wrong principle and the same result, namely, the quashing of the conviction, would follow.”48

It must be remembered that Justice Gogoi hails from Assam. As a judge of High Court of
Gauhati in 2005, he defined bias in Lena B Dam v. State of Assam and Ors. thus;

“The question that confronts the Court in the above facts is whether the participation of the
respondent No. 6 in the selection proceeding vitiates the entire of the proceeding on the ground
of bias. The doctrine of bias is a unique judicial innovation consistent with the principle that
the justice delivery system must be rooted in the confidence of the people and justice must not
only be done but also appear to have been done.

Proof of actual bias is difficult to come by. Hence the Court have consistently held that even
the possibility of bias would suffice to nullify an order passed or an action taken. In the present
case, the possibility of bias on the part of the respondent No. 6 as against the other candidates
in the fray and leaning in favour of the respondent No. 7, loans large.”49

This is a clear pointer that if a judge has even a remote possibility of having a sub-conscious
bias, he should recuse. For a long time, it has been a practice in the Supreme Court that in
serious issues like inter-state water disputes, judges from the state concerned do not sit on the
bench to decide them. Judges often recuse themselves voluntarily to avoid controversies or to
honour the age-old principle, “Justice must not only be done but must appear to be done.”50

So why do judges follow this salutary principle in breach is a serious question.

Illegal immigrants have no right to stay in India. In Sarbananda Sonowal v. Union of India the
Supreme Court rightly directed:

48
(1983) 1 All ER 490, 494.
49
(2006) 2 GLR 653.
50
State of Punjab v. Karam Chand, AIR 1959 Punj 402.

17
“Thus, the Bangladeshi nationals who have illegally crossed the border and have trespassed
into Assam or are living in other parts of the country have no legal right of any kind to remain
in India and they are liable to be deported.”51

However, the lines are seriously blurred as to who is an illegal migrant and who is not. Right
from the beginning of the 20th century, Muslims from Bangladesh have settled in Assam which
was completely lawful. The Assam Accord of 1985 between AASU and AAGSP and the
Central and State Government on the other categorically recognised:

Section 6A inserted in the Citizenship Act recognised this position unequivocally. The
judgment of the Supreme Court delivered by Mr. Justice Rohinton Nariman (sitting with Mr.
Justice Ranjan Gogoi) in 2015, although in the right direction, has led to serious issues of
implementation. The Bench specifically referred 13 questions to be answered by a Constitution
Bench of five judges.52 Yet, it exercised powers under Article 142 and issued a number of
directions for border fencing, foreign tribunals, and deportation of declared illegal immigrants.

“While taking note of the existing mechanism/procedure for deportation keeping in view the
requirements of international protocol, we direct the Union of India to enter into necessary
discussions with the Government of Bangladesh to streamline the procedure of deportation.
The result of the said exercise be laid before the Court on the next date fixed.”

These observations may have given rise to likelihood of bias in the mind of Mr. Harsh Mander,
who had brought the petition against inhuman living conditions of the detenues in detention
centres. He therefore sought the recusal of the Chief Justice. Can it be said that his apprehension
was not bonafide?53

The Court is entitled to get its directions enforced from the government, but at the same time,
the Court must realise the difficulties faced by the government, both Central and State. Clearly,

51
Writ Petition (civil) 131 of 2000.
52
Krishnadas Rajagopal, SC throws out plea seeking recusal of CJI from Assam detention centres case, THE
HINDU (Sep 09, 2020, 8:56 PM) https://www.thehindu.com/news/national/sc-throws-out-plea-seeking-recusal-of-
cji-from-assam-detention-centres-case/article27013235.ece.
53
SC orders release of those in Assam detention centres for 2 years, THE OUTLOOK (Aug 31, 2020, 2:09 PM)
https://www.outlookindia.com/newsscroll/sc-orders-release-of-those-in-assam-detention-centres-for-2-
years/1801388.

18
Bangladesh does not appear to have accepted India’s request to accept its citizens back. This
creates a grave situation as to the human rights of lakhs of people.

The Supreme Court has in its 1955 judgment in Hans Muller of Nurenburg v. Superintendent,
Presidency Jail held that the Government of India has absolute and unlimited power to expel
foreigners and there is no provision fettering this discretion. However, the Supreme Court has
also held that foreigners are also entitled to Right to Life and Liberty under Article 21.

In such circumstances, the Court was not justified in dealing with the matter as it did, and
certainly did not have the power to substitute Harsh Mander as the petitioner with any other
person or entity, even in exercise of powers under Article 142.

What the Court did is unprecedented, and one hopes that the Court will correct it suo
motu before it becomes a precedent, and a wrong one too. It may be worthwhile to mention
here the caution administered by the Attorney General to the Chief Justice on November 12,
2018. Lastly, it is important that the judges to the Supreme Court take oath under Article 124
(6) read with Schedule III to the Constitution of India, inter-alia to the effect,

“That I will duly and faithfully and to the best of my ability, knowledge and judgment perform
the duties of my office without fear or favour, affection or ill-will and that I will uphold the
Constitution and the laws.”54

The Oath must be observed by every judge in letter and spirit. They need not follow what the
presiding judge is doing, if it is against the law.

Let us hope and trust that the Supreme Court will follow its own law and not merely declare it
for others to follow.

54
art. 124, INDIA CONST.

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 6. CONCLUSION

Bias being the underlining rule of the said principle is hard to establish. Being a mental
condition, it becomes difficult to prove whether the decision taken was biased or not. It may
arise unconsciously. Bias may be defined as a preconceived notion concerning a party or issue.
No judge’s mind is a piece of blank paper. Every person has some preoccupied notions and
reasoning. While considering the rule of bias, it has to be observed that nothing has to be done
which creates even a slight suspicion that there has been an inappropriate interference with the
course of justice.

The object of this principle is not merely that the scales are held evenly, it is also necessary
that they may not appear to be inclined. In Mahabharata, if Dhritrashtra would have been
impartial and would have corrected his sons instead of saving them, while they kept on making
mistakes, Pandavas would have not called for war, to ensure justice.55

Principles of Natural Justice have occupied a crucial role in the study of Administrative law.
They constitute the essence of Justice. The Doctrine stands as a synonym of fairness in the
concept of justice. The rule against bias and the hearing rule constitute the two pillars of natural
justice. The principles of natural justice not only secure justice but more importantly prevents
miscarriage of Justice. The application of the principles might differ, but justice should be
administered in its true spirit.

The objective of the doctrine of bias is to ensure public confidence in the administration of law.
The court has to consider whether a prudent person having considered all the facts would
reasonably apprehend that the judge would not act partially. The essence of the rule lies in
providing a decision that is free from bias. Any biased decision creates insecurity amongst the
people, and in a democratic country governed by the Rule of law, adherence to the principles
of natural justice is fundamental. If the content of the law is not supplemented by the rules of
natural justice, justice will be forgotten. It is justice that keeps awake when all are asleep.

55
ROSHEN DALAL, HINDUISM: AN ALPHABETICAL GUIDE 230 (Penguin Books India eds., 1st ed. 2010).

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