CHAPTER-VI SUBJECT- MATTER BIAS. administrative or private body, he will be disqualified on the ground of

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1 INTRODUCTION CHAPTER-VI SUBJECT- MATTER BIAS When the adjudicator or the judge has general interest in the subject matter in dispute on account of his association with the administrative or private body, he will be disqualified on the ground of bias. If he has intimately identified himself with the issue in dispute. To disqualify under ground there must be intimate and direct connection between the adjudicator and the issues in dispute. A person shall also be disqualified from acting as judge if he has bias as to the subject-matter. If he himself is a party or has some direct connection with the litigation, so as to constitute a legal interest, he will be deemed to have a bias in the subject-matter. But it should be noted that mere involvement of a judge would not vitiate the administrative action unless there is a real likelihood of bias. For example in R.v Deal Justices ex parte Curling 1, it was held that a Magistrate who was a member of the Royal Society for the prevention of cruelty to an animal as this did not prove a real likelihood of bias. Again in Murlidhar v. Kadam Singh 2, the High Court did not quash the decision of the Election Tribunal on the ground that the wife of (1881) 45 L.T A.I.R M.B. 111

2 243 the Chairman was a member of the Congress Party whose candidate the petitioner defeated. In R. v. Hartforshire 3, it was held that a person who once decided a question should not take part in reviewing their own decision on appeal. In Andhra Scientific Co. Ltd. V. A Sheshagiri Rao and others 4, the General Manager of the Company conducted an inquiry against some Workmen. During the inquiry when it became necessary to examine the General Manager as a witness, the inquiry was taken over by the Manager. Director of the Company who examined the General Manager as well as actively produced evidence against the workmen. It was held by the Hon'ble Supreme Court that General Manager and Managing Director, though both were different persons, yet constituted in substance practically one entity. These being the facts, the manner in which inquiry was conducted could hardly be said to have ensured fair play which rules of natural justice require. The proceedings were quashed on the ground of bias as the Managing Director was, from very beginning, active in securing evidence to establish the charge against the workmen. 3. (1845) 6 Q.B A.I.R S.C. 408

3 244 In K. Chelliah v. Chariman, Industrial Finance Corporation 5, the disciplinary action against an employee was taken by the Chairman of the corporation. There was statutory provision for the appeal from the Chairman to the Board of Directors. The Chairman was also a member of Board of Directors. The Chairman participated in the meeting of the Board in which the appeal was considered. The order of the Board was quashed on the ground of bias. The presence of the Chairman in the meeting of the Board in which the appeal was considered created reasonable apprehension in the mind of the party that there was real likelihood of bias. The decision of an adjudicator will be vitiated if there has been intimate and direct connection between the adjudicator and the issue in dispute. For example, in the State of U.P.v.Mohd.Nooh 6, a Departmental inquiry was held against an employee and one of the witnesses against the employee turned hostile. The Inquiry Officer left the inquiry and gave evidence against him and thereafter resumed to complete the inquiry and passed the order of dismissal. The order was quashed on the grounds of such bias as to subject-matter. But as held in Kundala Rao v. Andhra Pradesh Transport Corporation 7 if the authority concerned acted judicially in approving or - 5. A.I.R Mad A.I.R S.C A.I.R S.C. 82

4 245 modifying the scheme, the approval or modification is not open to challenge and a mere general interest in the general object to be pursued would not disqualify the judge. But it should be noted that orders passed by judge while functioning High-Court Judge earlier, cannot be taken as basis for any bias as in case of K.Vijaya Bhaskar Reddy v. Govt. of A.P. 8 In order to challenge administrative action successfully on the ground of personal bias, it is essential to prove that there is a reasonable suspicion of bias as in Metropolitan Properties Co. (FCG) Ltd. v. Lannon, supra note 27 or a real likelihood of bias. The reasonable suspicion test looks mainly to outward appearance, and the real likelihood test focuses on court s own evaluation of possibilities; but in practice the tests have much in common with one another and in the vast majority of cases they will lead to the same result as in the case of I.P. Massey, Administrative Law 204 (7 th ed, 2008). In this area of bias, the real question is not whether a person was biased. It is difficult to prove the state of mind of a person. Therefore, what the courts see is whether there is a reasonable ground for believing that the deciding officer was likely to have been biased A.I.R A.P. 62

5 THE REASONABLE SUSPICION TEST As the name of the reasonable suspicion of bias test indicates, reasonableness plays a vital role in its application. The real question regarding this test is whether it actually exists. This test postulates that where the statements or actions or position of an adjudicator causes necessarily a reasonable person Contrary to Lord Esher M.R. s suggestions in Eckersley v. Mersey Docks and Harbour Board 9, that one should consider the suspicions of not necessarily reasonable people ; criticized by Lord O Brien C.J. in R. v. Cork Country Justices 10, as being loose expressions, not a fool Unlike that which Day J. in R. v. Taylor, ex p. Vogwill 11 proscribed : Anything at any time which would make fools suspect., nor a whimsical, capricious, or morbid person R. v. Cork Country Justices, supra note 31, to think that there is a real possibility of bias on his part for or against a party in a particular case, he is disqualified from sitting. In the earlier days of rule against bias, the courts implicitly denied the existence of reasonable suspicion test by relating nonpecuniary interest to only the real likelihood test - 9. [1894] 2 Q.B [1910] 2 I.R (1898) 14 T.L.R. 185

6 247 R. v. Rand, supra note 25; R. v. Deal Justices, supra note 19 and the peculiar substantial interest doctrine. R. v. Henely 12, Even at that time, however, Lord Esher M.R. stated that the law required that an adjudicator could not reasonable be suspected of being biased, Allinson v. General Medical Council 13, while Lopes L.J. said that the test of bias was whether there was any reasonable any real or substantial ground for suspecting bias. This test secured the quashing of a conviction for illegal salmon fishing in England when the presiding justices were members of prosecuting association. R. v. Allan 14,. It was also applied on other occasions in England and Australia. Law v. Chartered Institute of Patent Agents 15,; R. v. Huggins 16 ; Sharp v. Carey 17, This test enjoyed a major break-through in R. v. Sussex Justices ex. p. McCarthy supra note 9. In this case Lord Hewart C.J. laid down that it is not merely of some importance but it is of fundamental importance that justice should not only be done, but should manifestly [1892] 1 Q.B [1894] 1 Q.B (1864) 4 B.& S [1919] 2 Ch [1895] 1 Q.B (1897) 23 V.L.R, 248, F.S.C.

7 248 and undoubtedly be seen to be done. Adding that nothing should be done which created even a suspicion of improper interference with justice, Lord Hewart reinforced the reasonable suspicion test. In the three decades following this case, the test was employed in many other cases, suppressing the decisions of valuation assessment committees and justices presiding over family disputes in England, quashing the orders of magistrates making unfortunate remarks in New Zealand and Australia and avoiding arbitration awards in Australia. Moreover, this test was otherwise recognized. 3. THE REAL LIKELIHOOD TEST Ever since English justices certified that a corporation, in whose bonds their cestui qui trustees had invested, might appropriate a stream, and Blackburn J. held that non-pecuniary interest had not been proved as there was no real likelihood of bias R v. Rand, supra note 25, no one has doubted the existence of the real likelihood of bias test. What has been queried, by Danckwerts L.J. for example, is this: must there be a real likelihood that the tribunal was biased, or is it sufficient that a reasonable person would think that the tribunal might be biased? Metropolitan Properties Co. Ltd. v. Lannon, supra note 29. Those answered question are apt to throw doubt on whether a court must apply the perception of a reasonable person in determining a real likelihood of bias. Likewise, Devlin L.J. posists that real likelihood

8 249 depends on the impression which the courts gets from circumstances. R. v. Barnsley Licensing Justices, supra note 28. Noticeably he speaks of the impressions of the court, not of the reasonable person, without stating what criteria the court would use in gaining its impression. Surely, when the founding fathers of the Commonwealth Bills of Rights guaranteed to the individual the right to have his criminal charge and his civil rights or obligations determined by an independent and impartial Urias Forbes, Administartive Law in West Indies 18 tribunal, they doubtless meant to secure freedom from bias as judged by the reasonable person. Obviously the standard of a morbid person cannot be used. Nor, however, can one use that of an irrepressible optimist, never accepting that even when Man s passions are noble they are too often diverted from their true course. Sir Hugh Wooding, Law Reform Necessary in Trinidad and Tobago 19. Rather one agrees with Lord Denning J.R. that a real likelihood bias exists when a reasonable man would think it likely or probable that an adjudicator favoured one side unfairly, Metropolitan Properties Co. Ltd. v. Lannon, supra note I.C.L.Q. 95 (1972) CAN. B.J. 292 (1966)

9 250 So, too Professor de Smith suggests that real likelihood is based on the reasonable apprehensions S.A. de SMITH, JUDICIAL REVIEW OF ADMINISTRATIVE ACTION 20 of a reasonable man. 4. DIFFERENTIATING THE TWO TESTS 4.1 ABSENCE OF DIFFERENTIATION Three reasons may be identified for absence for differentiation. Firstly, so ling as the existence of reasonable suspicion test was denied, differentiation was unimportant. Now that this test if flourishing, thid differentiation is unavoidable. The second is the conviction that in the great majority of cases either test will lead to the same result Turner v. Allison 21. And, thirdly, there is little (if any) difference between the two tests Hannam v. Bradford Corporation, supra note 25. Also according to Lord Widgery C.J. no good purpose would be served by attempting a differentiation R. v. Altrincham, ex p. Pennington 22, But, on the other hand, it is inelegant to have two tests existing pari passu without an articulated differentiation. Since, there are two tests, and tow formulations of one test, there must be some real difference between them (3 rd ed., 1973) 21. [1971] N.Z.L.R [1975] 1 Q.B. 549,

10 OUTWARD APPEARANCES Professor de Smith suggests that reasonable suspicion tests look mainly to outward appearances; real likelihood tests focus on the court s own evaluation of the probabilities S.A. de SMITH, supra note 47, at 231. If by the court s own evaluation, Professor de Smith means the judgment of the court uninfluenced by that of a reasonable man, this conflicts with his opinion that real likelihood is based on the reasonable apprehensions of a reasonable man. Moreover, both the tests mainly look to the outward appearances. Lord Denning reaffirms the principle because it emphasizees that real likelihood does not consider the mind of the adjudicator, so that even if he was as impartial as he could be, still his decision cannot stand if right-minded persons, if his good friends, perceive a real likelihood of bias Metropolitan Properties Co. Ltd. v. Lannon, supra note 29. The entirety of rule against bias must be concerned with the outward appearances because it is never necessary to prove that an adjudicator has actually been biased R. v. Edwards 23, Rexats Kudan v. Carty 24, 23. (1922) 1 St.R. 36; 24. (1933) 1 J.L.R. 99

11 252 THE DIFFERENTIATION Difference between the two tests is a reflection of the nearness to which a given circumstance approximates to a concrete temptation to an adjudicator to deviate from the path of impartiality in order to favour unfairly a party to or an interest in a matter. Real likelihood od bias denoted the predominant probability of the risk of bias as discerned by a reasonable person; whereas a reasonable suspicion of bias, connoting a less commanding danger of bias than does a real likelihood, presents a substantial possibility of the risk of bias as perceived by a reasonable person Francis Alexis, Reasonableness in the Establishing of Bias, PUBLIC LAW. The courts almost invariably identify real likelihood with probability. But they very rarely associate reasonable suspicion with possibility. And Professor de Smith defines real likelihood in terms of both probabilities and possibilities S.A. de SMITH 25, 5. DIFFERENTIATION IN THE INDIAN SCENARIO In the case of S. Parthasarthi v. State of A.P. 26, it was held that the tests of real likelihood of bias and reasonable suspicion of bias are inconsistent with each other. The first test if preferable and surmise 25. Supra note 47, at AIR 1979 SC 2701

12 253 conjecture is not enough. In case where there is real likelihood of bias the ultimate decision based on the report of the Enquiry Officer will be quashed. The cumulative effect of following circumstances show bias: (i) Repeated memorandums given by the authorities threatening disciplinary action. (ii) (iii) Overlooking claim for promotion. Making deduction from pay for absence which were restored by higher authorities. (iv) Asking him to tale charge of weeding section and not giving facilities asked for. (v) Sending a letter to hospital for mental diseases asking about the mentak condition of the appellant and his refusal not to advise retrenchment on medical grounds and starting disciplinary proceedings therafter. 6. TEST OF REASONABLE SUSPICION OF BIAS OR REAL LIKELIHOOD OF BIAS IN THE INDIAN SCENARIO In deciding the question of bias, the judges have to take into consideration the human possibilities and ordinary course of human conduct G.N. Nayak v. Goa University, supra note 4. But there must be a real likelihood of bias and not a mere suspicion of bias before the proceedings can be quashed on the ground that the person conducting the

13 254 proceedings is disqualified by bias. In Jiwan K. Lohia v. Durga Dutt Lohia 27, upholding the decision of High Court while removing an arbitrator appointed by the court on the ground of bias, the Supreme Court observed that with regard to bias the test that has to applied is not whether in fact bias has affected the judgment but whether the litigant could reasonably apprehend that a bias attributable might have operated against him in the final decision. Therefore, the real test of real likelihood of bias is whether a reasonable man, in possession of relevant information, would have thought that bias was likely or whether the authority concerned was likely to be disposed to decide the matter in a particular way. In the case of Ramanand Prasad Singh v. Union of India 28, the Supreme Court held that participation in the selection committee as a member where his brother was a candidate but was not selected is inconsequential bias on which the whole select list cannot be quashed. In the case of Jasvinder Singh v. State Bank of J&K 29, the Supreme Court held that in the absence of any specific allegation against the Selection Board or any member thereof, awarding of higher percentage of marks to those who got lower marks in a written examination would not vitiate 27. (1992) 1 SCC (1996) 4 SCC (2003) 2 SCC 132

14 255 selection especially when there were only a few negligible instances and there was no conscious effort to bring candidates within the selection zone. In Federation of Railway Officers Assn. v. Union of India 30, the court further held that the allegation of bias on imaginary basis cannot be sustained. In Gullappalli Nageswara Rao v. State of A.P. supra note 19, it was held that the doctrine of bias is equally applicable to authorities though they are not courts of justice or judicial tribunals, who have to act judicially in deciding the rights of others i.e. authorities who are empowered to discharged quasi-judicial function. In the case of Charanjit Singh v. Harinder Sharma 31, the Court held that there is a real likelihood of bias when in a small place there is a relationship between selectees and members of selection committee. Some important cases related to this rule are: MANAK LAL v. Dr. PREM CHAND 32 In order to decide a complaint for professional misconduct filed by Dr. Prem Chand against Manak Lal, an advocate of Rajasthan High Court, the High Court appointed a Tribunal consisting of a senior advocate, once Advocate-General of Rajasthan, as Chairman. 30. (2003) 4 SCC (2002) 9 SCC AIR 1957 SC 425

15 256 The decision of the tribunal was challenged on the ground of personal bias arising from the fact that the Chairman had represented Dr. Prem Chand in an earlier case. The Supreme Court refused to quash the action holding that the Chairman had no personal contact with his client and did not remember that he appeared on his behalf, and that, therefore, there seemed to be no real likelihood of bias. However, high professional standards let the court to quash the action in the final analysis on the ground that justice should not be done but must appear to have been done. STATE OF U.P. v. MOHD. NOOH 33 In this case, a Deputy S.P. was appointed to conduct a departmental enquiry against a police constable. In order to contradict the testimony of a witness, the presiding officer offered himself as a witness. The Supreme Court quashed the administrative action on the ground that when the presiding officer himself becomes a witness, there is certainly a real likelihood of bias against the constable. A.K. KRAIPAK v. UNION OF INDIA supra note 15 In this case, Naquishbund, who was the acting Chief Conservator of Forests, was a member of the Selection Board and was also a candidate for selection to the all India cadre of Forest Service. Though he did not take part in the deliberations of the Board when his 33. AIR 1958 SC 86

16 257 name was being considered and approved, the Supreme Court held that there is a real likelihood of bias, for the mere presence of candidate on the Selection Board may adversely influence the judgment of the other member. GANGA BAI CHARITIES v. CIT 34 In this case, the lawyer while acting as a special counsel for the Income Tax Department had given his opinion that the assessee trust was not entitled to tax-exemption. Later on he was elevated as a judge of the High Court and seven years later heard and decided the seven years later, heard and decided the same point, in a reference, against the trust. None of the parties brought this aspect before the judge during the hearing. On appeal, the Supreme Court rightly held that there was no real likelihood of bias opinion had been given seven years ago and the judge may not have remembered the routine opinion given as a busy lawyer after a long lapse of time. INTERNATIONAL AIRPORTS AUHTORITY v. K.D.BALI 35 It was held that in order to constitute bias there must be reasonableness of apprehension of bias in the mind of the party. The purity of administration requires that the party to the proceedings should 34. (1992) 3 SCC (1988) 2 SCC 360

17 258 npt have apprehension that the authority is biased and is likely to decide against the party. But it is not every suspicion felt by the party which must lead to the conclusion that the authority hearing the proceedings is biased. The apprehension must be judged from a reasonable, healthy and average point of view and not a mere apprehension of a mere whimsical person. Vague suspicios of whimsical, capricious and unreasonable people are not our standard to regulate our vision. It is the reasonable and apprehension of an average honest man that must be taken note of. APSRT CORPORATION v. SATYANARAYANA TRANSPORT PVT. LTD, GUNTUR 36 A scheme containing proposals for the State to take over road transport services in the area of Guntur district form private operators was published in accordance with the provisions of Ch IV A of the Motor Vehicles Act, Objections were invited from persons who were likely to be affected by the scheme. The minister of transport gave a hearing and approved the scheme. In the Supreme Court, the petitioners, who were the proprietors of a private transport company, which was to lose its business under the scheme, contended that the minister, who heard the objections was biased against them. The minister had asked the 36. AIR 1965 SC 1303

18 259 petitioner to persuade some members of the Congress party to vote for him in the elections. The petitioner had tried to do so but had not succeeded, with the result that the minister lost the election. The Court held that this was enough to cause prejudice in the minister s mind, and in the absence of an effective rebuttal against this allegation by the minister, the minister could not hear the parties. The order of minister was, therefore quashed, since it was vitiated by bias. 7. CONCLUSION Hence, it can be concluded that 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. 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 PAUL CRAIG, ADMINISTRATIVE LAW 37. There is, according to some authors, a thin line of difference between the two tests i.e real likelihood of bias and reasonable suspicion of bias. But these tests yield the same result when applied to particular (6 th ed., 2008)

19 260 situation. So, it can be said that these two tests are same in effect. In the Indian circumstances also, the courts have no doubt applied these tests in various cases. But they have been very cautious in its application. It is judged from a reasonable man s point of view and not from the point of view of a person who is whimsical D.GALLIGAN, DUE PROCESS AND FAIR PROCEDURE (1996).