Bias

BIAS ADMINISTRATIVE LAW

Contents INTRODUCTION…………………………………………………………………………………..….3 Rule Against Bias ................................................................................................................................... 3 CONCEPT OF NATURAL JUSTICE AND RULE AGAINST BIAS…………………………...……5 Scope and Object of the Principles of Natural Justice ............................................................................ 6 First basic principle– ‘No one shall be a judge in his own cause.’ ......................................................... 7 Second basic principle – ‘No one shall be condemned unheard’............................................................ 9 TYPES OF BIAS………………………………………………………………………………………7 Personal Bias......................................................................................................................................... 10 Pecuniary Bias ...................................................................................................................................... 12 Subject Matter Bias ............................................................................................................................... 13 Departmental Bias ................................................................................................................................. 13 Preconceived Notion Bias ..................................................................................................................... 16 Bias On Account Of Obstinacy............................................................................................................. 17 DOCTRINE OF NECCESITY……………………………………………………………………......17 Evolution of the Doctrine of Necessity ................................................................................................. 17 CONCLUSION………………………………………….……………………………………………………………………………………20

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INTRODUCTION ‘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 that it does not leave the mind open. In G.N. Nayak v. Goa University1 the Supreme Court if India defined ‘Bias’ as partiality or preference which is not founded on reason and is actuated by self-interest – whether pecuniary or personal. This principle is based on the psychological fact regarding human being that no human can take an objective decision in a case in which he has an interest. And moreover if the decision is not based on reasons then the decision is said to be biased.

Rule Against Bias 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’. In other words a predisposition to decide for or against one party without regard to the merit of the case is bias. Therefore, if a person, for whatever reason, cannot take an objective decision on the basis of evidence on record he shall be said to be biased. A person cannot take an objective decision in a case in which he has an interest, for, as human psychology tells us, very rarely can people take decisions against their own interests. Therefore there exists the maxim that a person cannot be made judge in his own cause. The

1

(2002) 2 SCC 290

3

Supreme Court in Crawford Bayley & Co. v. Union of India

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restated that the doctrine of

Rule against bias comes into play if it is shown that the officer concerned has a personal connection or personal interest or personally acted in the matter concerned and/or has already taken a decision one way or the other which may be interested in supporting. This rule of disqualification is applied not only to avoid the possibility of a partial decision but also to ensure public confidence in the impartiality of the administrative adjudicatory process because not only must “no man be made a judge in his own cause” but also “justice should not only be done but manifestly and undoubtedly be seen to be done” 3. The minimum requirement of natural justice is that the authority must be composed of impartial persons acting fairly, without prejudice and bias. A decision which is a result of bias is a nullity and the trial is “Coram non-judice4”. Interference of bias, therefore can be drawn only on the basis of factual matrix and not merely on the basis of insinuations, conjectures and surmises5. Bias cannot be presumed, it must be proved from the facts of the case6. The Andhra Pradesh High Court in M.Koteswara Rao v. Sr. Manager, APSRTC ., after discussing the case law on the subject laid down the following principles in regard to bias – 1. Every Judge, authority, arbitrator, or a body or person having power to decide, disputed questions of law and facts shall display fair play in action. 2. He acquires disqualification if he has interest (either pecuniary or otherwise) in the proceedings or conducts in a biased manner so as to create real likelihood of bias. 3. The bias need not be established as a fact. It is sufficient if there was real likelihood of bias or bona fide suspicion of bias or there was substantial possibility of bias. 4. The measuring rod of actual bias or real likelihood of bias is that a reasonable and fairminded person adequately appraised of all relevant facts may reasonably and bonafidely think that there was real likelihood of bias and that bias cannot be inferred on vague suspicions of whimsical, cupidous and unreasonable persons. 5. Bias may be apparent or inherent in the proceedings and there must be reasonable evidence to satisfy that there was a real likelihood of bias. 2

(2006) 6 SCC 25 As per Lord Hewart, C.J., in R. v. Sussex Justices, ex p. McCarthy, (1924) 1 KB 256, 259 4 Ranjit Thakur v. Union of India, (2006) % SCC 153 5 (2006) 6 SCC 25 6 D.C. Aggarwal v. SBI, (2206) 5 SCC 153 3

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6. Bias may arise under various circumstances viz., pecuniary, affinity, consanguinity, friendship or hostility, subordinate status etc. It may be personal bias or departmental or administrative bias or objectionable bias (e.g. prejudging the issue). 7. Principles of waiver apply to the rule against bias provided the objection is taken as soon as the party prejudiced knows the facts which entitle him to object. However, in cases where even though true facts are known, but if he establishes that he was unaware that he was entitled to take objection, the principle will not apply. 8. The principle has no application where the authority discharges the function under a statute or when the doctrine of necessary is invoked. 9. The proceedings or decisions afflicted with bias are wholly void.

THE CONCEPT OF NATURAL JUSTICE AND RULE AGAINST BIAS The term Natural Justice has not been defined in any enactment, rules or regulations. Eminent Jurists and courts in England and India have defined and explained the concept of Natural Justice in various decisions. The term Natural Justice has been evolved in contrast to legal justice. It is said that Natural Justice is justice in deed and in truth while legal justice is justice declared and recognized by law and enforced by courts in accordance with the procedure established by law. Natural Justice is justice based on human values and good conscience following a just and fair procedure. Legal justice is justice based on technicalities of law following the procedure established by law. Principles of Natural Justice are principles analogous to principles of equity. 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. 5

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. Generally, no provision is found in any statute for the observance of the principles of natural justice by the adjudicating authorities. The question then arises whether the adjudicating authority is bound to follow the principles of natural justice. The law has been settled that they are the mandatory requirement and that the justice of the common law will supply the omission of the legislature. This principle is accepted in India also.

Scope and Object of the Principles of Natural Justice Principles of Natural Justice are the rules laid down by courts for the purpose of protecting the right of an individual against adoption of arbitrary procedure in determining questions affecting his rights by a judicial or quasi-judicial authority. In A.K. Kraipak v. Union of India7, the Supreme Court laid down the following guidelines regarding the scope and object of the principles of Natural Justice. (a) These rules operate in areas not covered by any law validly made. In other words, they do not supplant the law but supplement the law. (b) The aim of these rules is to secure justice or to put it negatively to prevent miscarriage of justice. (c) In view of their nature it is not possible to cast them in a narrow mould or fit them into a straightjacket, because that would deprive them of their flexibility or adaptability to the innumerable situations that may arise during the course of the enquiry. (d) Whether a particular principle of Natural Justice is applicable to a particular situation will depend on the facts and circumstances of each case.

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(1969) 2 SCC 262

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(e) Whenever a complaint is made before the court that some principle of Natural Justice is contravened, the court has to decide whether the observance of the rule was necessary for a just decision of the case. (f) The concept of Natural Justice has undergone a great deal of change in recent years. In the past it was thought that it included just two rules namely (1) no one shall be a judge in his own cause and (2) no decision shall be given against party without affording him a reasonable hearing. Very soon thereafter a third rule was envisaged that quasi-judicial enquiries must be held in good faith without bias and not arbitrarily or unreasonably. In the course of years many more subsidiary rules came to be added to the rules of Natural Justice. (g) Till very recently it was the opinion of the courts that unless the authority concerned was required by the law under which it functioned to act judicially there was no room for the application of the rules of Natural Justice. The validity of that limitation is now questioned. (h) If the purpose of the rules of Natural Justice is to prevent miscarriage of justice one fails to see why those rules should be made inapplicable to administrative enquiries. (i) Often times it is not easy to draw the line that demarcates administrative enquiries from quasi-judicial enquiries. Enquiries which are considered administrative at one time are now being considered as quasi-judicial in character. (j) Arriving at a just decision is the aim of both quasi-judicial enquiries as well as administrative enquiries. An unjust decision in an administrative enquiry may have more farreaching effect than a decision in quasi-judicial enquiry.

First basic principle– ‘No one shall be a judge in his own cause.’ The Disciplinary Authority who conducts the inquiry or the inquiring authority where one is appointed is a quasi-judicial authority. He acts like a judge but he is not a judge. He takes administrative action with a judicial approach, which requires administration of justice according rules, following just and fair procedure. He shall be independent, impartial, fair and objective. A person with a foreclosed mind or a person who has prejudged the issue or predetermined to punish the delinquent should not act as inquiry officer. Similarly a person who is a complainant, or witness or prosecutor cannot act as a judge. 7

In State of Uttar Pradesh v. Mohammed Nooh8, a Constable in the Utter Pradesh Police Force who was officiating as Head Constable at the material time was placed under suspension on 15.03.1948 as he was suspected to be responsible for creation of a forged letter purporting to have been issued selecting him for training in the Police Training College. A Departmental enquiry was started against the respondent and Shri B.N.Bhalla, the District Superintendent of Police held the trial and found him guilty and passed an order of dismissal against him. Departmental appeal and revision were dismissed. The main contention of the Constable before the Supreme Court was that Sri B.N.Bhalla, who presided over the trial, also gave his own evidence in the proceedings at two stages and had thus become disqualified from continuing as the judge, as he was found to be biased against the respondent. The examination of Shri Bhalla became necessary to contradict a witness who denied at the inquiry a statement he had made earlier in the presence of Shri Bhalla. Accordingly, Shri Bhalla had his testimony recorded by a Deputy Superintendent of Police. The Supreme Court, while laying down that a person cannot act both as a Judge and witness, observed as follows: The District Superintendent of Police examined a certain witness in the course of the enquiry. It seems that witness’s evidence was considered a vital link in the chain of evidence against the respondent. The Dist. Superintendent of Police reached the conclusion that the witness had turned hostile. He may have been right about that, but he also considered it necessary to refute this evidence and make good the lacuna by bringing other material on record. Apparently, no other witness was available. So, the Dist. Superintendent of Police who seems to have personal knowledge about the facts, stepped down from the Bench and got his testimony recorded by another authority, once before charge and again after charge and each time after that was done, stepped back from the Bench in order solemnly to decide whether he should believe his own testimony in preference to that of the witness who, in his judgement, had committed per jury and gone back on the truth. It hardly matters whether this was done in good faith or whether the truth lay that way because the spectacle of a Judge hopping on and off the Bench to act first, as judge, then as witness, then as judge again to determine whether he should believe himself in preference to another witness, is startling to say the least. It would doubtless delight the hearts of a Gillbert and Sulivan Comic Opera 8

1956 AIR SC 86

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audience but will hardly inspire public confidence in the fairness and impartiality of departmental trials; and certainly not in the mind of the respondent. Even before the constitution, departmental trials were instituted to instill a sense of security in the services and inspire confidence in the public about the treatment accorded to Government servants”.

Second basic principle – ‘No one shall be condemned unheard’ The concept of reasonable opportunity extends throughout the disciplinary proceedings from the stage of framing of charges till the final order is issued. Art.311.Cl.(2) of the Constitution of India embodies the principles of reasonable opportunity. It reads as follows:“No such person as aforesaid shall be dismissed or removed or reduced in rank except after an inquiry in which he has been informed of the charges against him and given a reasonable opportunity of being heard in respect of those charges. Provided that where it is proposed after such inquiry to impose upon him any such penalty, such penalty may be imposed on the basis of the evidence adduced during such inquiry and it shall not be necessary to give such person any opportunity of making representation on the penalty proposed.”

TYPES OF BIAS Bias manifests itself variously and affects a decision in a variety of ways. It can broadly be classified into six categories: 1. Personal Bias 2. Pecuniary Bias 3. Subject Matter Bias 4. Departmental Bias 5. Preconceived Notion Bias 6. Bias On Account Of Obstinacy

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Personal Bias Personal bias emphasizes on personal factors of the official. It includes personal feelings, personal interest, whether financial or emotional, or personal connection to the matter through the members of the family or friends. There are other circumstances for personal bias, e.g., the official may be in some business or professional relationship with the plaintiff or the accused, or may have hostility against either of them. All these factors create bias either in favour of, or against, the party and will operate as a disqualification for a person to act as a judge. Naturally we shall say that it is a case of personal bias when the manager of a factory himself conducts an inquiry against the workmen who are alleged to have assaulted him9, or when a person sits on a gramapanchayat bench to hear appeals against his conviction10, or when the adjudicator is a relation of one of the parties11, or when a person sits on the selection board to select a person for a post for which he himself is a candidate, even though he may not participate in its deliberations when his name is considered12. The personal bias may also include the pecuniary interest of a judge. Personal bias 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 Bihar13, 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 Orissa14, the Supreme Court quashed the order of the tribunal confirming premature retirement on the ground that the chairman of the

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Meenglas Tea Estate v. Workmen, A.I.R. 1963 S.C. 1719. Ramjag Singh v. State of Bihar, A.I.R. 1958 pat. 7. 11 Amolok Chand v. S.D.O., A.I.R. 1962 Ass. 80 12 A.K. Kraipak v. Union of India, A.I.R. 1970 SC 150. 13 AIR 1960 SC 468 14 (1989)4 SCC 664 10

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tribunal was also a member of the review committee which had recommended premature retirement. In an English case the applicant Pinochet, the Head of State of Chile, challenged the House of Lord’s decision passed by Lord Hoffman, on ground that, Lord Hoffman, as a Director and Chairperson of Amnesty International Charity Ltd, the opposite party of the case, has direct involvement and relation with it. Although it was made clear that there was no allegation of actual bias against Lord Hoffman, but House of Lords subsequently decided not to allow the original decision to stand15. The decision was in accordance with the principle of rule against bias.

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 test 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.

15 16

(1999) 1 All E.R. 577 (1992) 1 SCC 56

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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 Rural District Counci18l, the court in England quashed the decision of the planning commission, where one of the members was an estate agent who was acting for the applicant to whom permission was granted. In Jeejeebhoy vs. Astt. Collector,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. A pecuniary interest, however insignificant, will disqualify a person form acting as a judge. In a case in England, a public limited company filed a case against a landowner in a matter largely involving the interests of the company. The Lord Chancellor who was a shareholder in the company heard the case and gave to the company the relief it sought. His decision was quashed by the House of Lords because of the pecuniary interest of the Lord Chancellor in the company21. It is also highly important that the maxim, no man is to be a judge in his own cause, be held sacred. A similar principle applies to adjudicatory proceedings. Thus, where a

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Lord Denning : The Discipline Of Law, (1982), p.87 (1933) 2 KB 696 19 AIR 1965 SC 1096 20 (1990) 1 All ER 436 21 Dimes v. Grand Junction Canal, (1852). 3 H.L.C. 759 18

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permit was granted by a regional transport authority to one of its members, the court had no hesitation in cancelling it on account of bias of the authority22.

Subject Matter Bias Those cases fall under 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. In R. v. Deal Justices ex p. Curling23, the magistrate was not declared disqualified to try case of cruelty to an animal on the ground that he was member of the Royal Society for the Prevention of Cruelty to Animals as this did not prove real likelihood of bias. Similarly in Murlidhar v. Kadam Sing24, the court refused to quash the decision of the Election Tribunal on the ground that the wife of the Chairman was a member of the Congress Party whose candidate the petitioner defeated. In the same way in Sub-Committee on Judicial Accountability v. Union of India25the court did not allow the challenge of bias against the speaker for his actions under the Judges Enquiry Act, 1968 on the basis that he was affiliated to a particular political party. However, in Gullapalli Nageswara Rao v. APSRTC26, the Supreme Court quashed the decision of the Andhra Pradesh 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.

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. The problem of departmental bias arises in different contextwhen the functions of judge and prosecutor are combined in the same department. It is not

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Annamalai v. State of Madras, A.I.R. 1957 A.P. 739 (1881) 45 LT 439. 24 AIR 1954 MP 111. 25 (1991) 4 SCC 699 26 AIR 1959 SC 308 23

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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 Khemu v. Dy. Commr. of Police27. In this case an 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 Gullapalli Nageswara Rao v. APSRTC28, 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. Similarly, in Krishna Bus Service v. State of Haryana29, 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. The test of likelihood of bias which has been applied in a number of cases is based on the reasonable apprehension of a reasonable man fully cognizant of the facts. The courts have quashed on the strength of the ‘reasonable suspicion’ of the party aggrieved without any 27

AIR 1956 SC 559 AIR 1959 SC 308 29 (1985) 3 SCC 537 28

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finding that a real likelihood of bias in fact existed. The tests of “real likelihood” and “reasonable suspicion” are really inconsistent with each other. The reviewing authority must take 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 seem to be done. If right-minded persons would think that there is real likelihood of bias on the part of an enquiry officer, he must not conduct the enquiry; nevertheless there must be a real likelihood of bias. Surmise or conjuncture would not be enough. There must be 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 enquire 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. Where members of the Public Service Commission directly participated in the selection of candidates where their own relatives have actually been selected with high ratings in the interview, test, it was held that the selection suffers from bias and is liable to be struck down. It was held that in a fair recruitment to the Civil Services the selection must not only be devoid of bias but there must also be no reasonable likelihood of bias. It is not necessary for the petitioners to prove beyond reasonable doubt the factum of bias or unfairness. It is sufficient if they can show a reasonable possibility or likelihood of bias and partisanship. Similarly, in Election Commission of India v. Dr. Subramaniam Swamy30, it was with regard to misappropriation of funds by J. Jayalalitha. In order to disqualify her from contesting elections under Art.191 read with S.9 of Representation of Peoples Act 1995, her personal enemy Dr. Subramaniam Swamy filed a petition before the Governor. Now, the Governor u/A. 192 has to follow such procedures such as consult the Election commission and seek their opinion. In this case, the Governor did just that. The Chief Election Commissioner (CEC) was T.N. Seshan, who happened to be a close acquaintance of Dr. Subramaniam Swamy. So J. Jayalalitha went to the Madras High Court. The division bench of the High Court held that Seshan was in a position to act biased. The Bench observed that in view of the appointment of additional two members on the EC, the EC could give its opinion through members other than CEC. But the lacuna in this approach was that a majority decision is

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(1996) 4 SCC 104

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required. It was thus decided that on account of divided opinion between the EC’s, then applying the doctrine of necessity the final opinion of the CEC must be sought.

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 Planning31 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.N32, 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. APSRTC33 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 favoured. The court rejected the

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1948 AC 87 (1973) 1 SCC 336 33 AIR 1961 SC 82 32

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contention on the ground that the decision of the committee was not final and irrevocable but merely a policy decision. The problem of bias arising from preconceived notions may have to be disposed of as an inherent limitation of the administrative process. It is useless to accuse a public officer of bias merely because he is predisposed in favour of some policy in the public interest.

Bias On Account Of Obstinacy The Supreme Court has discovered a new category of bias arising from thoroughly unreasonable obstinacy. Obstinacy implies unreasonable and unwavering persistence and the deciding officer would not take ‘no’ for an answer. The Apex Court has discovered this new category of bias arising from thoroughly unreasonable obstinacy. This new form of bias was discovered in a situation where a judge of Calcutta High Court upheld his own judgment while sitting in appeal against his own judgment. This was a direct violation of the rule that no judge can sit in appeal against his own judgment. 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 NECCESITY There are certain circumstances where though there is bias on part of adjudicator or the adjudicator is in such a position that possibility of bias cannot be excluded but despite there being such circumstances, if there are circumstance discussed herein after, such decision of such adjudicator will not be liable to be set aside. These circumstances are discussed here as exceptions to rule against bias i.e. Statute may exclude bias and Necessity excludes bias.

Evolution of the 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. 17

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. An adjudicator who is subject to disqualification on account of bias may nevertheless, can validly adjudicate if: 1) No other person competent to adjudicate is available; 2) A quorum cannot be formed without him; or 3) 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 18

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 favour 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. 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 preconceived notions are such that it has the capacity of biasing the mind of the judge, administrative action would not be vitiated. In Ashok Kumar Yadav v State of Haryana34, Supreme Court showed that Doctrine of Necessity acts as an exception to official bias. During the selection process in Haryana State Public Service Commission, relative of the member of the Selection Board was interviewed and later personal relationship was alleged as a ground to strike down the decision of the Selection Board. There can be no doubt that if a selection committee is constituted for the purpose of selecting candidates on merits and one of the members of the Selection Committee is closely related to a candidate appearing for selection, it would not be enough for such member merely to withdraw altogether from the entire selection process and ask the authorities to nominate another person in his place on the selection committee, because otherwise all the selection made would be vitiated on account of reasonable likelihood of bias affecting the process of selection. But the situation here is different as the selection of candidates to Haryana Civil Service (Executive) and allied services, is not done by a selection committee made for the purpose but is provided for by Article 316 of the Constitution of India. Hence, the same principle as in case of personal relationship cannot be applied in this case. If a member of Public Service Commission were to withdraw altogether from the selection

34

(1985) 4 SCC 417

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making process on the ground that a close relative of his appearing for selection, no other person save a member can be substituted in his place. And it may also happen sometimes that no other member is available at all and hence functioning of Public Service Commission may be affected. In this case hence, Supreme Court Invoked the Doctrine of Necessity expressly and held that the decision by the Committee valid and untarnished by any sort of bias. Chinappa Reddy, J took the same stand in deciding another such similar case Javid Rasool Bhat v State Of Jammu and Kashmir35. In Tata Cellular v Union of India36, Government of India issued invitations to all the mobile operators to establish networks in the four metro cities. Evaluation Committee which was supposed to evaluate the tenders under Telecom Regulatory Authority of India (TRAI), had Director General of Telecommunication in it. His son’s tender was selected at the end of the evaluation process. In this case, Supreme Court rejected the violation of Nemo judex in causa as without Director General of Communication no tender can be selected and evaluation is not possible. There was no choice of substitution and hence the decision was not liable to be struck down. In this case Supreme Court applied the Doctrine of Necessity liberally. Stringent rules were laid down by the Supreme Court in Election Commission of India v. Dr. Subramaniam Swamy37. In this case it was observed that in a multi-member commission when the chief election commission is found to have likelihood of bias, his participation is not mandatory and the doctrine of necessity will not apply. The proper course for him was that he could call for a meeting and withdrew from the meeting leaving it to the other members to decide. In case there was any difference between them, then doctrine of necessity would apply. In this case, Supreme Court changed Doctrine of Necessity to Doctrine of absolute Necessity meaning thereby that this doctrine can be invoked only in cases of absolute necessity.

CONCLUSION

35

(1981) 2 SCC 631 (1994) 6 SCC 651 37 (1996) 4 SCC 104 36

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It is one of the Fundamental principle 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 Judge likely to biased should be incapacitated from sitting. The question is not whether the judge is biased or not, the question is whether there is any real likelihood of bias or not. 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. This principle has received a wide recognition in several Supreme Court Decisions. Doctrine of Necessity acts as an exception to the rule of bias. 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 favour of the former as it is the only way to promote decision-making. But it has also been made very clear by the Supreme Court that Doctrine of Necessity cannot be invoked every now and then, as if that is done, it might lead to absence of Rule of Law in the Society. Hence, Doctrine of Necessity should be taken as Doctrine of Absolute Necessity 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. 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 the parties. The strict standards applied to authorities exercising judicial power are being increasingly applied to administrative bodies for it is vital to the maintenance of rule of law in a welfare state where 21

the jurisdiction of administrative bodies is increasing at a rapid pace that the instrumentalities of the State should discharge their functions in a fair and just manner.

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