129074826-bias-administrative-law.docx

DR. RAM MANOHAR LOHIYA NATIONAL LAW UNIVERSITY LUCKNOW

2017-18

FINAL DRAFT ADMINISTRATIVE LAW Comparative Study- Biasness towards English Cases

Submitted by – Vinay Sheel B.A.LLB (Hon) Semester V Roll no. 166

Submitted to – Dr. Aparna Singh Asst. Professor (Law)

Acknowledgement I would like to sincerely thank the Administrative law teacher Dr. Aparna Singh for giving me this project on the “Biasness towards English Cases” which has widened my knowledge on the Law related to the subject. Her guidance and support has been instrumental in the completion of this project. I’d also like to thank all the authors, writers and columnists whose ideas and works have been made use of in the completion of this project. My sincere gratitude also goes out to the staff and administration (RMLNLU) for the infrastructure in the form of our library and IT lab that was a source of great help in the completion of this project. I would also like to thank my friends who have lended me constant support through guidance and inputs which has led to the completion of this project.

Index 1.

Acknowledgement

2.

Index

3.

Introduction

4.

Personal bias

5.

Pecuniary Bias

6.

Official bias

7.

Departmental Bias

8.

Test of Bias

9.

Exceptions to the rule against bias

10.

Conclusion

11.

Bibliography

Introduction Bias, in general terms is an inclination to present or hold a partial perspective at the expense of (possibly equally valid) alternatives. Anything biased generally is one-sided, and therefore lacks a neutral point of view. Another meaning given is ‘anything which tends or may be regarded as tending to cause such a person to decide a case otherwise on evidence must be held to be biased.’ In Franklin v. Minister (1948) of town and country planning, Lord Thankerton defines bias as under: “My Lords, I could wish that the use of the word ‘bias’ should be confined to its proper sphere. Its proper significance in my opinion is to denote a departure from the standard of even handed justice which the law requires from those who occupy judicial office, or those who are commonly regarded as holding a quasi-judicial office, such as an arbitrator.” Bias cannot be presumed as a matter of course. In the absence of specific allegation of bias, courts will not assume of any bias. The traditional English law recognises two principles of natural justice:

i.

Nemo debet esse judex in propria causa : No man shall be a judge in his own cause, or no man can act as both at the one and the same time – a party or a suitor and also a judge, or the deciding authority must be impartial and without bias: and

ii.

Audi alteram partem: Hear the other side, or both the sides must be heard, or no man should be condemned unheard, or that there must be fairness on the part of the deciding authority.

The first requirement of natural justice is that the judge should be impartial and neutral and must be free from bias. He is supposed to be indifferent to parties to the controversy. He cannot act as judge of a cause in which he himself has some interest either pecuniary or otherwise as it affords the strongest proof against neutrality. He must be in a position to act judicially and to decide the matter objectively. A judge must be of sterner stuff. His mental equipoise must always remain firm and undefelected. He should not allow his personal

prejudice to go against his decision making. He must think dispassionately and submerge private feeling on every aspect of a case. If the Judge is subject to bias in favour of or against either party to the dispute or is in a position that a bias can be assumed, he is disqualified to act as a judge, and the proceedings will be vitiated. This rule applies to the judicial and administrative authorities required to act judicially or quasi judicially.

Personal Bias A number of circumstances may give rise to personal bias. Here judge may be relative, friend or business associate of a party. He may have some personal grudge, enmity or grievance or professional rivalry against such party. In view of these factors, there is every likelihood that the judge may be biased towards one party or prejudiced towards the other. In Cottle v. Cottle (1939), the chairman of the bench was a friend of the wife’s family who had instituted matrimonial proceedings against her husband. The wife had told the husband that the chairman would decide the case in her favour. The divisional court ordered rehearing. It later turned out that the chairman was a friend of the wife’s family. In Maneklal v. Premchand1, a complaint was filed against Maneklal, an advocate, by Premchand for professional misconduct. A committee was constituted by the Bar council to enquire into the allegation. The chairman of the committee who was a senior lawyer had many years ago appeared on behalf of Premchand in a case. Maneklal contended that there was a violation of natural justice because there was past friendship between the chairman and Premchand. The Supreme Court agreed that there was no real likelihood of bias in this case, but still disqualified the chairman because Maneklal had developed a reasonable suspicion on him. In the leading case of A.K. Kraipak v. Union of India2, one N was a candidate for selection to the Indian Foreign service and was also a member of the Selection Board. N did not sit in the board when his own name was considered. Name of N was recommended by the board and he was selected by the Public service commission. The candidates who were not selected filed a writ petition for quashing the selection of N on the ground that the principles of natural justice were violated. 1 2

AIR 1995 S.C 425 AIR 1970 SC 150

Quashing the selection, the court observed: “It is against all canons of justice to make a man judge in his own cause. It is true that he did not participate in the deliberations of the committee when his name was considered. But then the very fact that he was a member of the selection board must have had its own impact on the selection board. Further admittedly he participated in the deliberations of the board when the claims of his rivals particularly that of one Mr Basu was considered. He was also party to the preparation of the list of selected candidates in order of preference. At every stage of his participation in the deliberations of the selection board there was a conflict between his interest and duty. Under those circumstances it is difficult to behave that he could have been impartial. The real question is not whether he was biased or not. It is difficult tom prove the state of mind of a person. Therefore what we have to see is whether there is a reasonable ground for believing that he was likely to have been biased. This case is a landmark in the development of administrative law and it has contributed in a large measure of strengthening of the rule of law in this country.

Pecuniary Bias Whenever there is a monetary interest involved it is said to be a kind of pecuniary bias. The adjudicator who is deciding the issue in the proceedings should not have any pecuniary interest, else the decision is vitiated. The least pecuniary interest in the subject matter of the litigation will disqualify any person from acting as a judge, even though it is not proved that the decision is in anyway affected. In Dr Bonham3, Dr Bonham, a doctor of Cambridge University was fined by the College of Physicians for practicing in the city of London without license of the college. The Statute under which the college acted provided that fines should go half to the King and half to the college. The claim was disallowed by Coke C.J as the college had a financial interest in its own judgement and was a judge in its own cause. Dimes v. Grant Junction Canal4: 17 Jur 73, is an important case in this regard. Lord Cottenham, the judge who sat in a previous case in which canal company that brought a case in equity against a landowner. Lord Cottenham was later discovered to have had shares in said company. The case was held stating that although there was no suggestion that the Lord 3 4

(1610) 8 Co. (1852) 3 HL 759

Chancellor had in fact been influenced by his interest in the company, no case should be decided by a judge with a financial interest in the outcome. It was held that the Lord Chancellor was disqualified from sitting as a judge in the case because he had an interest in the action. Lord Campbell in this case observed-“No one can suppose that Lord Cottenham could be in the remotest degree, influenced by the interest that he had in this concern; but it is of the last importance that the maxim, that no one is to be a judge in his own case, should be held sacred…and it will have a most salutary influence on tribunals when it is known that this high court of last resort, in a case in which the lord chancellor of England had an interest, considered that his decree was on that account a decree not according to law, and was set aside. This will be a lesson to all inferior tribunals to take care not only that in their decrees they are not influenced by their personal interest, but avoid the appearance of labouring under such an influence.” In Jeejeebhoy v. Asstt. Collector of Thana Air5, Chief Justice Gajendragadkar reconstituted the bench on objection being taken on behalf of interveners in court on the ground that Chief Justice, who was a member of the bench, was also a member of the cooperative society foe which the disputed land had been acquired.

However, the rule against bias will not be applied where the judge, though having a financial interest, has no direct financial interest in the outcome of the case. Therefore the court in R v. Mulhvihill (1990) did not set aside the conviction of the accused on charge of robbery in a bank on the ground that the trial judge had shares in that bank. In such cases unless there is a real likelihood of bias, administrative action will not be quashed.

Official bias The third type of Bias is official bias or bias as to the subject matter. This may arise when the judge has a general interest in the subject-matter. This is the most impersonal kind of bias. The English law on this matter is that unless the objector shows that a judge has acted in an unusual manner to support his belief, he can’t be disqualified… Suppose a Minister is empowered to frame a scheme after hearing the objections is subject to the principles of natural justice insofar as they require affair hearing. But the minister’s decision cannot be impugned on the ground that he has advocated the scheme or he is not 5

1965 S.C. 1096

known to support it as a matter of policy. In fact, the object of giving power to the minister is to implement the policy of the govt. The same principle has been accepted in India also. In Gullapalli Nageshwara Rao v. APSRTC6, a scheme of nationalisation of motor transport was notified by the state government inviting objections. The objections filed by the persons were heard by Secretary, Department of Transport. The entire material was placed before the chief minister who was also in charge of transport for approval. The validity of the scheme was challenged on the ground that the person who heard the objections, viz, the secretary to government was the same person who had heard the objections was in the same person who had initiated the scheme and therefore, he was biased. Upholding the contention the Supreme Court observed that the official who heard the objections was in substance a party to the dispute and hence the principles of natural justice were violated.

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

Departmental Bias Departmental Bias arises when the functions of judge and prosecutor are combined in the same department. The difficulty in combining the adjudication and prosecution functions in the same person is that the accused may be prejudiced and he may be prone to accept whatever proof is produced by the other party sponsoring conviction. In Parthasarathy v. State of A.P7, the person who framed charges also acted as the enquiry officer in the disciplinary proceedings against a civil servant. The Supreme Court held it to be wrong. In Meenglass Tea Estate V. Workmen8, the role of judge, prosecutor and witness was played by the same person in an enquiry. In this case the respondents were prosecuted for an 6

AIR (1959) S.C. 308 AIR 1973 S.C. 2701 8 A.I.R. 1963 S.C. 1719 7

alleged offence of assaulting the manger. The manager complained about the assault to the owner and thereby prosecution was launched by the manger. The same manger was asked by the owner as the presiding officer in the domestic enquiry to enquire into the alleged assault. Thus he acted as a judge. He took his own evidence for proving the assault and reported that the allegations were proved. The Supreme Court quashed the findings of the enquiry on the ground of personal bias.

Test of Bias The court’s use the real likelihood test or the reasonable apprehension test to find out bias. A pecuniary interest, however small it may be, disqualifies a person from acting as a judge. Other interest, however small it may be, disqualifies a person from acting as a judge. Other interests however do not stand on the same footing. Here the test is whether there is a real likelihood of bias in the judge. Real likelihood of bias means at least substantial possibility of bias. For a judgement to be bias-free the court will have to judge the matter as a reasonable man would judge of any matter in the conduct of his own business.

In words of Lord Hewart, the answer to the question whether there was a real likelihood of bias ‘depends not upon what actually was done but upon what might appear to be done. Nothing is to be done which creates even a suspicion that there has been an improper interference with the course of justice. In India, the real likelihood test is applied by the Supreme Court in A.K. Kraipak case9. The court observed: “The Real question is not whether he was biased. It is the difficult to prove that state of mind of a person. Therefore, what we have to see is whether there is reasonable ground for believing that he was likely to have been biased…. a mere suspicion of bias is not sufficient. There must be a real or reasonable likelihood of bias.” In Ashok Kumar Yadav vs. State of Haryana10, the court through Bhagwati C.J has very succinctly spelled out the test of reasonable likelihood. He observed: 9

AIR 1970 S.C. 150

10

1997 CriLJ 1377

“It is one of the fundamental principles of jurisprudence that no man can be a judge in his own cause and that if there is a reasonable likelihood of bias it is 'in accordance with natural justice and common sense that the justice likely to be so biased should be incapacitated from sitting". The question is not whether the judge is actually biased or in fact decides partially, but whether there is a real likelihood of bias. What is objectionable in such a case is not that the decision is actually tainted with bias but that the circumstances are such as to create a reasonable apprehension in the mind of others that there is a likelihood of bias affecting the decision. The basic principle underlying this rule is that justice must not only be done but must also appear to be done and this rule has received wide recognition in several decisions of this Court. It is also important to note that this rule is not confined to cases where judicial power stricto sensu is exercised. It is appropriately extended to all cases where an independent mind has to be applied to arrive at a fair and just decision between the rival claims of parties.” In Manek Lal vs. Dr Premchand11 the court laid down the bias in following words: In such cases the test is not whether in fact a bias has affected the judgement; the test is always is and must be whether a litigant could reasonably apprehend that a bias attributable to a member of the tribunal might have operated against him in the final decision of the authority.” So as to the real test of likelihood of bias, what is relevant is reasonableness of the apprehension in that regard in the mind of the party.

Exceptions to the rule against Bias There are two exceptions two the rule against bias: (i)Doctrine of necessity: Where bias is apparent but the same person who is likely to be biased has to decide, because of the statutory requirement or the exclusiveness of a competent authority to decide, the courts allow such person to decide. In Ashok Kumar Yadav v State of Haryana12, the court held that a member of the public service commission could not entirely disassociate himself from the process of selection just because a few candidates were related to him. He should disassociate himself from the selection of the persons related to him but need not disassociate from the selection of other candidates. Though his being on the selection committee could create a likelihood of bias in favour of his relations yet, since the Public service commission is a 11 12

1957 AIR 425 1997 CriLJ 1377

constitutional authority, such a member can’t be entirely excluded from its work. In the Case of Institute of Chartered Accountants v. D.L. Ratna 13, the court concluded that the president and the vice president of the institute need not be required to sit on a disciplinary committee as well as the governing council. The court therefore asked the government to get the law amended so that they were not obliged to sit on both the bodies. Here, the doctrine of necessity could have been invoked to save the infirmity caused by bias. In order to successfully invoke the doctrine of necessity, it is essential to show that despite the bias, the person objected to has to decide that matter because no one else could decide it, One such case was Mary Teresa Dias v. Acting Chief Justice14, a committee of twelve judges of the High court of Kerala participated in a meeting to select candidates for appointment as district judges. A female candidate, who was not selected, impugned the validity of the selections in a writ petition before the Kerala High Court. The matter came up before a bench consisting of 3 judges who were among those twelve who had been on the committee for selection. The petitioner contended that the judges who had participated in the selection ought not to sit on the bench to hear the writ petition against the very selection. The Kerala High Court rejected this contention on various grounds. a) The selection made by the committee was an administrative function of the High Court, and the judges had participated in it and taken a decision, which was institutional and not personal. b) The High Court could not be said to have prejudiced just because they had not selected a particular candidate. c) When the High court recommended the selection of candidates for judicial posts and it was challenged, it was bound to consider the validity of such selection as being necessary. In T.N. Seshan v. Union of India15 the chief justice observed thus: “We must have a clear conception of the doctrine of absolute necessity. It is well settled that the law permits certain things to be done as a matter of necessity which it would otherwise not countenance on the touchstone of judicial

13

AIR 1987 S.C. 71 AIR 1985 Ker 245 15 (1995) 4 SCC 611 14

propriety…It is often invoked in cases of bias where there is no other authority to judge or decide the issue.” (ii)Waiver: An allegation of Bias should be raised at a proper time. If a party knew of disqualification arising out of bias in the adjudication and kept silent, his right to object is lost by the principle of waiver. But sometimes, an individual may not be in a position to object earlier because of fear or ignorance, in such cases the courts may not apply the principle of waiver.

Conclusion Every kind of preference is not sufficient to vitiate an administrative action. If the preference is rational and unaccompanied by consideration of rational interest, pecuniary or otherwise, it would not vitiate the decision. Similarly, there must be a real likelihood and not a mere suspicion of bias, before the proceedings can be quashed on the ground of bias. This apprehension must be judged from a healthy, reasonable and average point of view and not a mere apprehension and a vague suspicion of whimsical capricious and unreasonable people. The proper approach for court in such cases is not to look into own mind and ask “am I biased?” But to look into the mind of the party before it. The court must look at the impression which would be given to the other party. Therefore the test is not what actually happened but the substantial possibility of that which appeared to have happened .As the justice is rooted in the minds of the people and it is destroyed and it is destroyed when the right minded people go away thinking that the judge is biased.

Bibliography 1. C.K. Takwani “Lectures on Administrative Law”, Eastern Book Company 2. I.P. Massey “Administrative Law”, Eastern Book Company 3. Academy of Legal Publications “Administrative Law” 4. www.legalserviceindia.com