The dictionary meaning of 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’. A person cannot take objective decision in a case where he has an interest, as it is a psychological phenomenon that it is hard to take decisions against their own interests.

The Supreme Court in Crawford Bayley & Co. v Union of India 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 has personally acted in the matter concerned, has already taken a decision in one way in which he may be interested in supporting. The 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 a judge in his own cause” but also “justice should not only be done but should manifestly and undoubtedly be seen to be done”.

A decision which is a result of bias is a nullity and the trial is “Coram non judice”.

TYPES OF BIAS

Bias manifests itself variously and may effect a decision in a variety of ways. They are broadly classified under the following heads;

1. Personal Bias

2. Pecuniary Bias

3. Subject Matter Bias

4. Departmental Bias

5. Preconceived Notion Bias

6. Bias On Account Of Obstinacy.

Dealing with each kinds of Bias in detail:

1. PERSONAL BIAS:

It arises out of the personal or professional relationship of friendship or hostility between the authority and the parties. However, no exhaustive list is possible. It’s the human nature that we try to give favorable 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 Bihar, 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 Orissa, the Supreme Court quashed the order of the tribunal confirming premature retirement on the ground that the chairman of the tribunal was also a member of the review committee which had recommended premature retirement.

Also, In S.P. Kapoor v. State of H.P., the supreme court quashed the selection list prepared by the Departmental Promotion Committee which had considered the confidential reports of candidates prepared by an officer who himself was a candidate for promotion.

However, the Supreme Court in M. V. Thimmaiah v. U.P.S.C. cautioned that the plea of mala fide, favoritism and colorable exercise of power is generally raised by interested party, the court should not draw conclusions unless allegations are substantiated beyond doubt.

TESTS 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 Lohia, the apex court observed that with regard to the bias the teat 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.

The reason is plain enough as per Lord Denning “Justice must be rooted in the confidence and the confidence is destroyed when right minded people go away thinking that the judge is biased.” It was on this ground that in Metropolitan Properties Co. Ltd. v. Lannon the court held that there was no actual bias and no want of good faith.

Therefore, in Charanjit Singh v. Harinder Sharma, Ramanand Prasad Singh v. Union of India, Jaswinder Singh v. State of J&K, Federation of Railway Officers Association v. Union of India and other similar cases, the court held that the allegation of Bias on imaginary basis cannot be sustained. And in order to sustain people’s confidence in the administrative justice it is desirable that even the slightest bit of apprehension of bias be removed because it would be the worst day for administrative justice if a person leaves the chamber of an administrative authority feeling that the authority was biased. The court followed and held a similar view in D.C. Aggarwal v. State Bank of India.

2. 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 Rular District Council, 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,Thana 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. Mulvhill, 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.

3. SUBJECT MATTER BIAS:

The situations where the deciding officer is directly or indirectly in the subject matter of the case.

In R v. Deal Justices ex p. Curling, the magistrate was not declared disqualified to try a case of cruelty to an animal on the ground that he was a member of the royal society for the prevention of cruelty to animals as this did not prove a real likelihood of bias.

The supreme court in cases like Murlidhar v. Kadam Singh & Sub – Committee Of Judicial Accountability V. Union Of India, followed the same line. But in Gulla palli Nageshwara Rao v. APSRTC, the Supreme Court quashed the decision of A.P. 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. It may be mentioned that in USA and England, predisposition in favor of a policy in the public interest is not considered as legal bias vitiating administrative actions.

4. 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.

In Gullapalli Nageswara Rao v. APSRTC 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.

The problem of departmental bias arises in different context- when the functions of judge and prosecutor are combined in the same department. It is not 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 v. Dy. Commr. of Police. In this case an externment order was challenged n 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 Krishna Bus Service v. State of Haryana, 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.

5. 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 Planning 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.N, 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. APSRTC 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 favored. The court rejected the 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 favor of some policy in the public interest.

6. BIAS ON ACCOUNT OF OBSTINACY

The word Obstinacy implies unreasonable and unwavering persistence and the deciding officer would not take ‘no’ for an answer. This new category of bias was discovered in a situation where a judge of the Calcutta High Court upheld his own judgment while sitting in appeal against his own judgment. Of course a direct violation of the rule that no judge can sit in appeal against his own judgment is not possible, therefore, this rule can only be violated indirectly. 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 NECESSITY

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 favor 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.

In the USA, the disqualification arising out of bias arises from the due process clause of the American Constitution. Therefore, an administrative action can be challenged in India and England. Recent trends in the judicial behavior of the American Supreme Court also indicate that where the administrative authority prejudged the issue, the action will be vitiated. 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 strength of the preconceived notions is such that it has the capacity of foreclosing the mind of the judge, administrative action would not be vitiated.

BIAS AND CONTEMPT OF COURT

The element of bias causes a serious problem in Contempt of Court cases, In Vinay Chandra Mishra, In Re, the court held that in case of facie curiae contempt (contempt in the face of the court) the rule against bias does not apply and the judge before whom the contempt is committed can punish the contemnor on the spot. However, in order to bring an element of fairness in contempt cases the Allahabad High Court has made a rule that the judge will place the matter before the chief justice who will allot it to any judge for hearing because it is a contempt not the judge but of the court.

ARTICLE 6 (1) OF ECHR AND BIAS

When Article 6 (1) of the European Convention on Human Rights applies, it entitles those affected to the determination of their ‘civil rights and obligations’ or of any ‘criminal charge’ against them ‘by an independent and impartial tribunal established by law’. In Human Rights Court’s Jurisprudence, now operative in Britain under the Human Rights Act, 1988, the concept of impartiality is tested both subjectively – was there in fact bias? – and objectively – were the guarantees in place to exclude any legitimate doubt as to the impartiality of the tribunal? There is a clear relationship between the objective test of bias and the home grown principle that justice must be seen to be done. Indeed, the importance of the appearance of impartiality has often been stressed by the court which has stated that what ‘is at stake is the confidence which the courts in a democratic society must inspire in the public and, above all, as far as the criminal proceedings are concerned, in the accused’. The common law and the European Convention both view impartially as fundamental characteristics of fair procedure and there should be little conflict between them. There have been cases where English Law has not come up to the Convention Standard, but this has been because statutory provisions have been found wanting. In Scotland it has been held that temporary Sherriffs, appointed with no security of tenure and subject to annual renewal by the Lord Advocate, were not ‘independent’ as required by Article 6 (1).

CONCLUSION:

Every kind of preference is not sufficient to vitiate an administrative action. If the preference is rational and unaccompanied by consideration of rational interest, pecuniary or otherwise, it would not vitiate the decision. Similarly, there must be a real likelihood and not a mere suspicion of bias, before the proceedings can be quashed on the ground of bias. This apprehension must be judged from a healthy, reasonable and average point of view and not a mere apprehension and a vague suspicion of whimsical capricious and unreasonable people. The proper approach for court in such cases is not to look into its own mind and ask “am I biased?” But to look into the mind of the party before it, the court must look at the impression which would be given to the other party.

Therefore the test is not what actually happened but the substantial possibility of that which appeared to have happened. As the justice is rooted in the minds of the people and it is destroyed and it is destroyed when the right minded people go away thinking that the judge is biased.

BIBLIOGRAPHY AND REFERENCES:

§ H.W.R. Wade & C.F. Forsyth: ADMINISTRATIVE LAW, (1967) Oxford Publications.

§ B. Schwartz, “ADMINISTRATIVE LAW”, 4th edition, (1994) Little Brown and Co. & Aspen publications.

§ I.P. Massey “ADMINISTRATIVE LAW”, 6th edition, (2007) Eastern Book and Co.

§ Lord Denning : THE DISCIPLINE OF LAW, (1982)

§ Neil Prapworth, “CONSTITUTIONAL AND ADMINISTRATIVE LAW”, (2000) Butterworths publication.