Bias and malafide

This is first principle of Rules of natural justice. This principle conveys that “no one shall be a judge in his own cause” and that justice must appear to have been done. Impartiality in any decision is the basic concept of justice and there shall be “impartial judge too”. Commonly understood to be prejudicial or element having mollified colour. Bias arises from various factors either in the administrative, quasi-judicial or judicial proceedings. They are again introduced in many forms. It may be “judicial bias” or say a different kind to be “administrative or departmental bias” and “Political problems of bias”. Use of the word bias should be confined to its proper sphere. Its proper significance is to denote a departure from those who occupy judicial office or those who are commonly regarded as holding a quasi-judicial office, such as an arbitrator. The clear reason for insistence of such a rule is adjudication with an independent mind, without any inclination or bias towards one side or the other in dispute.

Lord Campbell said that:

“No man is to be a judge in his own cause” should be held sacred. And that is not confined to a cause in which he is a party, but applies to a cause in which he has an interest.

Kinds of bias and malafide:

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. Lord Tottenham acting as a judge had an interest of such type because he was a shareholder of the Company and therefore the Court held that the rule should be held secured.

Waiver of objections:

In RC Cooper the judges of the Supreme Court were shareholders in the Banking companies. Case pertained to the “bank nationalization”, but on no objection of the parties to the proceedings, the case was finally decided.

Personal bias:

Fact remains that the “human mind is not made of different compartment”, and therefore, such bias may arise when the adjudicator is socialized, or is a friend or having good relation with any party. In that case, he is not acting impartially to give judgment, but he is influenced due to relation or secures some interest and this is how the personal bias plays substantial role in the proceedings. In case of AK Kraipak, Supreme Court had the occasion to deal with the problem of personal bias. The Chief Conservator of Forest at the State level was the top executive in the Select list and he became a member of the Selection committee. The Court covered this matter under the first principle of natural justice to make a man judge in his own cause. The contention was taken that when his name was recommended in the said list, he did not take part in the committee and deliberation. Yet the Court held that there must be a reasonable likelihood of bias. The Supreme Court took into consideration human probabilities and ordinary course of human conduct. The court, therefore, finally held that it would be difficult to appreciate that the judge was impartial in the selection. Such decision obviously introduces nullity. In case of AS Razvi, the Petitioner made certain allegations against the Divisional Telephone Engineer including that of corrupt practice. The Disciplinary inquiry was initiated against the delinquent and ultimately the officer against whom the allegations were made, dismissed him from service, holding it to be violative of first principle of natural justice, the court held that:

“The cardinal principle of administration of justice is that no person shall be a judge in his own cause. This principle applies not only to the regular courts which administer justice, but, it applies also to quasi-judicial tribunals which are also required to act judicially. It applies not only in a case where the judge or the adjudicator or the suite, but it applies also to all those cases where the judge or the adjudicator is associated with reference to the…so that there is a real likelihood of bias taking place in the final decision of the case. The principle extends even to those cases where, though the judge or the adjudicator is not personally interested in the matter, he is so situated with reference to the matter of any of the parities to the dispute that a reasonable apprehension is likely to arise in the mind of any one of the disputants that he is not likely to get justice at the hands of the judge or the adjudicator. The decision having been arrived at by a disqualified person is no decision in the eye of law and even if it happens to be a correct decision in the opinion of the Court before which the decision is brought, the same deserves to be set aside because disqualified person has no jurisdiction to pass even a correct order or record a right decision.”

In a case, the officer admittedly recorded statements in preliminary inquiry. He was cited by the petitioner as his witness in departmental inquiry and was examined as such. Ultimately, the said officer acted as disciplinary authority. He accepted the finding recorded by the inquiry officer and then proceeded to impose penalty. His bias would wholly vitiate the inquiry. Officer, who carried out preliminary inquiry, should be wholly debarred from acting as disciplinary authority for the obvious reasons that he would all throughout be conscious of the fact that he had collected certain material at the preliminary inquiry and would be unconsciously prejudiced by the material gathered by him at the back of the delinquent officer. Worst situation would arise when he would be a witness and his own evidence would have to be appreciated by himself. [Please see Special Civil Application15 No. 1197/1968]

Following two tests could be drawn:

(a) The personal interest is shown with reference to the office he held whereby, there may arise a reasonable apprehension as to such bias.

(b) Even the disqualified adjudicator according to this principle shall have no jurisdiction to pass any order or even a correct order or record a right decision.

Bias and subject matter:

Adjudicator may not preserve impartiality when the adjudicator is discharging the duty of rendering justice upto the parties in case of somebody taking interest in subject matter. Adjudicator or the other extraneous agents may be interested in the “subject matter”, and therefore, such decision would be violative of this principle. For example, there are two co-ordinated top officials in the same management, where one is adjudicator and another has no status in such inquiry meaning thereby that no work is entrusted to him. Another officer is simply a foreign person. Yet it is his interest to see what can be or what should be done in the matter at issue. When he takes interest and suggests something, it would be styled as bias as to subject matter. This can be found inter departmentally. However, this example is not exhaustive at all. But it is so given to show nearness of position.

Appointment and transfer of judges:

In United Kingdom, where similar judicial appointments are in the absolute discretion of the executive, these appointments are made by convention 'on the advice of the Prime Minister after consultation with the Lord Chancellor, who himself consults with senior members of the judiciary before making his choice or consulting with the Prime Minister and the Prime Minister would depart from the recommendations of the Lord Chancellor only in the most exceptional case. (See the Politics of Judiciary; J.A.G. Griffith at p.17, 18). The Lord Chancellor, Lord Machay speaking on “The Role of the Judge in a Democracy” said:

One of the most important responsibilities of a Lord Chancellor in our democracy is for judicial appointments. It is my duty to ensure that neither political bias, nor personal favouritism, nor animosity play any part in the appointment of judges and that they are selected regardless of sex, ethnic origin or religion of the basis of their fitness to carry out the solemn responsibility of judicial office. I look for those with integrity, professional ability, experience, standing a sound temperament and good health. To achieve this, I consult widely and regularly with the judges, Law Lords and other members of the legal profession. It naturally attaches particular importance to the opinion of the Divisions of the High Court. Judges, therefore, have an important role in judicial appointments, albeit informally rather than proscribed by statute.

Opinion of the Chief Justice is sufficient safeguard against bias:

The primacy of the judiciary in the matter of appointments and its determinative nature in transfers introduces the judicial element in the process, and is itself a sufficient justification for the absence of the need for further judiciary review of that decision, which is ordinarily needed as a check against possible executive excess or arbitrariness. Plurality of Judges in the formation of the opinion of the Chief Justice of India, as indicated, is another inbuilt check against the likelihood of arbitrariness or bias, even subconsciously, of any individual. The judicial element being predominant in the case of appointments, and decisive in transfers, as indicated, the need for further judicial review, as in other executive actions, is eliminated. Reduction of the area of discretion to the minimum, the element of plurality of Judges in formation of the opinion of the Chief Justice of India, effective consultation in writing, and prevailing norms to regulate the area of discretion is sufficient checks against arbitrariness.

These guidelines in the form of norms are not to be construed as conferring any justiciable right in the transferred Judge, apart from the constitutional requirement of a transfer being made only on the recommendation of the Chief Justice of India, the issue of transfer is not justiciable on any other ground, including the reasons for the transfer or their sufficiency. The opinion of the Chief Justice of India formed in the manner indicated is sufficient safeguard and protection against any arbitrariness or bias, as well as any erosion of the independence of the judiciary.

This is also in accord with the public interest of excluding these appointments and transfers from litigative debate, to avoid any erosion in the credibility of the decisions, and to ensure a free and frank expression of honest opinion by all the constitutional functionaries, which is essential for effective consultation and for taking the right decision. The growing tendency of needless intrusion by strangers and busy-bodies in the functioning of the judiciary under the garb of public interest litigation, in spite of the caution in S.P. Gupta while expanding the concept of locus standi, was adverted to recently by a Constitution Bench in Raj Kanwar, Advocate v. Union of India and Anr. (1992) 4 SCC 605. It is therefore, necessary to spell out clearly the limited scope of judicial review in such matters, to avoid similar situations in future. Except on ground of want of consultation with the named constitutional functionaries or lack of any condition of eligibility in the case of an appointment, or of a transfer being made without the recommendation of the Chief Justice of India, these matters are not justiciable on any other ground, including that or bias, which in any case is excluded by the element of plurality in the process of decision making.

If the vulnerable section of the people is completely neglected, we cannot claim to have achieved real participatory democracy. Therefore, there is every justification for the Government to forward lists of candidates belonging to diverse sections of the people to the Chief Justice concerned, who has to ultimately scrutinize the list and take his decision on the merit of the candidates without giving room for any criticism that the selection was whimsical, fanciful or arbitrary or tainted with any prejudice or bias.

Honourable the Supreme Court of India rules out the possibility of any arbitrariness or bias on the ground that the matter of appointment and transfer is taken care by the Chief Justice of India based on recommendation of Constitutional functionaries.

In Mahamad Nooh the function of holding departmental inquiry was entrusted to adjudicator who started inquiry, and thereafter, produced his evidence as witness. Again, he played his role as inquiry officer. This was bad as the inquiry officer, who had to complete the evidence as a Judge, cannot act in his capacity as witness for a simple reason that he cannot take such interest in the subject matter.

Problems often arise in service jurisprudence. The inquiry officers sometime act not only as adjudicators, but play roles of prosecutors, complainants and witnesses. This method of doing the inquiry is bad enough. The basic object of quasi-judicial or judicial proceeding must be to preserve the fairness in proceedings. The inquiry officer, who was director in charge, was biased against the appellant, who conducted the inquiry.

Position was contested and it was submitted to the department that the officer was so biased, and therefore, some another officer from different department should hold the inquiry. The government made it clear that director should hold the inquiry. The inquiry officer then became Deputy Director from his in-charge position and he was delegated the powers of holding the inquiry. This was bad as the inquiry officer had interest in the subject matter.

In case of Harekrishna Das V Union of India, it was observed:

“13. A request for change of the inquiring authority is to be decided not from the point of view of the disciplinary authority but from the angle of the employee concerned as to whether on the facts and circumstances of the case it could be said that it was possible for him to develop a reasonable apprehension of bias in the inquiring authority against him. It is not the requirement of law that such a bias must be actually present in the inquiring authority and it is not equally true that a mere fanciful or imaginary claim of bias would not sustain the plea for change of the inquiring authority. All that is necessary is that whether employee could contend of a reasonable apprehension in mind regarding the impartiality of the inquiring authority. In other words, the test is as to whether a man of reasonable prudence, if placed in the similar circumstances as that of the employee, would have thought the inquiring authority to be biased against him. It is to be seen whether in such background of law the petitioner could be said to have any reasonable apprehension of bias against the inquiring authority.”

State of Punjab vs. VK Khanna

The concept of fairness in administrative action has been the subject matter of considerable judicial debate, but there is total unanimity on the basic element of the concept to the effect that the same is dependent upon the facts and circumstances of each matter pending scrutiny before the Court and no straight jacket formula can be evolved therefore. Fairness is synonymous with reasonableness; And on the issue of ascertainment of meaning of reasonableness, common English parlance referred to as what is in contemplation of an ordinary man of prudence similarly placed. It is the appreciation of this common man’s perception in its proper perspective, which would prompt the Court to determine the situation as to whether the same is otherwise reasonable or not. It is worthwhile to recapitulate that in a democratic polity, the verdict of the people determines the continuance of an elected Government a negative trend in the elections brings forth a change in the Government it is on this formula that one dominant political party overturns another dominant political party and thereby places itself at the helm of the affairs in the matter of the formation of a new Government after the election.

The dispute in the appeals pertain to the last phase of the earlier Government and the first phase of the present Government in the State of Punjab; Whereas the former Chief Secretary of the State of Punjab upon obtaining approval from the then Chief Minister of Punjab initiated proceedings against two senior colleagues of his in the Punjab State Administration but with the new induction of Shri Prakash Singh Badal as the Chief Minister of Punjab, not only the Chief Secretary had to walk out of the administrative building but a number seventeen officer in the hierarchy of officers of Indian Administrative Service and working in the State of Punjab as a bureaucrat, was placed as the Chief Secretary and within a period of 10 days of his entry at the Secretariat, a notification was issued, though with the authority and consent of the Chief Minister pertaining to cancellation of two earlier notifications initiating CBI enquiry. The charges being acquisition of assets much beyond the known source of income and grant of sanction of a Government plot to Punjab Cricket Control Board for the purposes of Stadium at Mohali. A worthwhile recapitulation thus depict that a Government servant in the Indian Administrative Service being charged with acquiring assets beyond the known source of income and while one particular Government initiates an enquiry against such an acquisition, the other Government within 10 days of its installation withdraws the notification is this fair?

High Court decried it and attributed it to be a motive improper and malafide and hence the appeal before the Supreme Court. Whereas fairness is synonymous with reasonableness bias stands included within the attributes and broader purview of the word malice which in common acceptation means and implies spite or ill will. One redeeming feature in the matter of attributing bias or malice and is now well settled that mere general statements will not be sufficient for the purposes of indication of ill will.

There must be cogent evidence available on record to come to the conclusion as to whether in fact, there was existing a bias or a malafide move which results in the miscarriage of justice. In almost all legal enquiries, intention as distinguished from motive is the all important factor and in common parlance a malicious act stands equated with an intentional act without just cause or excuse. In the case of Jones Brothers (Hunstanton) Limited vs. Stevens (1955 1 Q.B. 275) the Court of Appeal has stated upon reliance on the decision of Lumley v. Gye (2 E & B. 216) as below:

For this purpose maliciously means no more than knowingly. This was distinctly laid down in Lumley vs. Gye, where Crompton, J. said that it was clear that a person who wrongfully and maliciously, or, which is the same thing, with notice, interrupts the relation of master and servant by harbouring and keeping the servant after he has quitted his master during his period of service commits a wrongful act for which is responsible in law. Malice in law means the doing of a wrongful act intentionally without just cause or excuse: Bromage vs. Prosser (1825 1 C. & P.673) Intentionally refers to the doing of the act; it does not mean that the defendant meant to be spiteful, though sometimes, as, for instance to rebut a plea of privilege in defamation, malice in fact has to be proved.

In Girja Shankar Pants case (supra) the Supreme Court having regard to the changing structure of the society stated that the modernization of the society with the passage of time, has its due impact on the concept of bias as well. Tracing the test of real likelihood and reasonable suspicion, reliance was placed in the decision in the case of S. Parthasarthy vs. State of Andhra Pradesh: 1974 (3) SCC 459) wherein Mathew, J. observed:

The tests of real likelihood and reasonable suspicion are really inconsistent with each other. We think that the reviewing authority must make a determination on the basis of the whole evidence before it, whether a reasonable man would in the circumstances infer that there is real likelihood of bias. The Court must look at the impression which other people have. This follows from the principle that justice must not only be done but seen to be done. If right minded persons would think that there is real likelihood of bias on the part of an inquiring officer, he must not conduct the enquiry; nevertheless, there must be a real likelihood of bias. Surmise or conjecture would not be enough. There must exist circumstances from which reasonable men would think it probable or likely that the inquiring officer will be prejudiced against the delinquent. The Court will not inquire whether he was really prejudiced. If a reasonable man would think on the basis of the existing circumstances that he is likely to be prejudiced, that is sufficient to quash the decision (see per Lord Denning, Master of Rolls in Metropolitan Properties Co. (FGC) Ltd. vs. Lannon and Others, (1968) 3 WLR 694 at page 707). The court observed that it should not, however, be understood to deny that the Court might with greater propriety apply the reasonable suspicion test in criminal or in proceedings analogous to criminal proceedings.

Incidentally, Lord Thankerton in Franklin v. Minister of Town and Country planning (1948 AC 87) opined that the word bias is to denote a departure from the standing of even-handed justice. Girja Shankar’s case (supra) further noted the different note sounded by the English Courts in the manner following:

Recently however, the English Courts have sounded a different note, though may not be substantial, but the automatic disqualification theory rule stands to some extent diluted. The affirmation of this dilution however is dependent upon the facts and circumstances of the matter in issue. The House of Lords in the case of Reg. vs. Bow Street Metropolitan Stipendiary Magistrate, Ex parte Pinochet Ugarte (No.2) [2000 (1) A.C. 119] observed:

In civil litigation the matters in issue will normally have an economic impact; therefore a judge is automatically disqualified if he stands to make a financial gain as a consequence of his own decision of the case. But if, as in the present case, the matter at issue does not relate to money or economic advantage but is concerned with the promotion of the cause, the rationale disqualifying a judge applies just as much if the judge’s decision will lead to the promotion of a cause in which the judge is involved together with one of the parties.

Lord Brown Wilkinson at page 136 of the report stated:

It is important not to overstate what is being decided. It was suggested in argument that a decision setting aside the order of 25 November 1998 would lead to a position where judges would be unable to sit on cases involving charities in whose work they are involved. It is suggested that, because of such involvement, a judge would be disqualified. That is not correct. The facts of this present case are exceptional.

The critical elements are (1) that A.I. was a party to the appeal; (2) that A.I. was joined in order to argue for a particular result; (3) the judge was a director of a charity closely allied to A.I. and sharing, in this respect, objects of I.A. Only in cases where a judge is taking an active role as trustee or director of a charity which is closely allied to and acting with a party to the litigation should a judge normally be concerned either to rescue himself or disclose the position to the parties. However, there may well be other exceptional cases in which the judge would be well advised to disclose a possible interest.

Lord Hutton also in Pinochets case (supra) observed:

there could be cases where the interest of the judge in the subject matter of the proceedings arising from his strong commitment to some cause or belief or his association with a person or body involved in the proceedings could shake public confidence in the administration of justice as much as a shareholding (which might be small) in a public company involved in the litigation.

Incidentally in Locabail (U.K.) Ltd. vs. Bayfield Properties Ltd, 2000 Q.B. 451, the Court of Appeal upon a detail analysis of the oft cited decision in Reg. vs. Gough [(1993) A.C. 646] together with the Dimes case, ( House of Lords Cases 759): Pinochet case (supra), Australian High Court’s decision in the case of re J.R.L., Ex parte C.J.L. (1986 (161) CLR 342) as also the Federal Court in re Ebner (1999 (161) A.L.R. 557) and on the decision of the Constitutional Court of South Africa in President of the Republic of South Africa v. South African Rugby Football Union (1999 (4) S.A. 147) stated that it would be rather dangerous and futile to attempt to define or list the factors which may or may not give rise to a real danger of bias.

The Court of Appeal continued to the effect that everything will depend upon facts which may include the nature of the issue to be decided. It further observed:

By contrast, a real danger of bias might well be thought to arise if there were personal friendship or animosity between the judge and any member of the public involved in the case; or if the judge were closely acquainted with any member of the public involved in the case, particularly if the credibility of that individual could be significant in the decision of the case; or if, in a case where the credibility of any individual were an issue to be decided by the judge, he had in a previous case rejected the evidence of that person in such outspoken terms as to throw doubt on his ability to approach such persons evidence with an open mind on any later occasion; or if on any question at issue in the proceedings before him the judge had expressed views, particularly in the course of the hearing, in such extreme and unbalanced terms as to throw doubt on his ability to try the issue with an objective judicial mind (see Vakuta vs. Kelly (1989) 167 C.L.R. 568); or if, for any other reason, there were real ground for doubting the ability of the judge to ignore extraneous considerations, prejudices and predilections and bring an objective judgment to bear on the issues before him. The mere fact that a judge, earlier in the same case or in a previous case, had commented adversely on a party witness, or found the evidence of a party or witness to be unreliable, would not without more found a sustainable objection. In most cases, we think, the answer, one way or the other, will be obvious. But if in any case there is real ground for doubt, that doubt should be resolved in favour of recusal. We repeat: every application must be decided on the facts and circumstances of the individual case. The greater the passage of time between the event relied on as showing a danger of bias and the case in which the objection is raised, the weaker (other things being equal) the objection will be.

The Court of Appeal judgment in Locabail (supra) though apparently as noticed above sounded a different note but in fact, in more occasions than one in the judgment itself, it has been clarified that conceptually the issue of bias ought to be decided on the facts and circumstances of the individual case a slight shift undoubtedly from the original thinking pertaining to the concept of bias to the effect that a mere apprehension of bias could otherwise be sufficient.

The test, therefore, is as to whether there is a mere apprehension of bias or there is a real danger of bias and it is on this score that the surrounding circumstances must and ought to be collated and necessary conclusion drawn there from. In the event, however, the conclusion is otherwise that there is existing a real danger of bias administrative action cannot be sustained; If on the other hand allegations pertain to rather fanciful apprehension in administrative action, question of declaring them to be unsustainable on the basis therefor would not arise. It is in the same vein this Court termed it as reasonable likelihood of bias in Rattan Lal Sharma’s case (Rattan Lal Sharma v. Managing Committee Dr. Hari Ram (Co-education) Higher Secondary School & Ors.1993 (4) SCC 10) wherein this Court was pleased to observe that the test is real likelihood of bias even if such bias was, in fact, the direct cause.

Hemang D. Rana, Advocate

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