DOCTRINE OF ‘BIAS’

[Mr. M. GOVINDARAJAN]

The rules of natural justice operate as implied mandatory requirements, non-observance of which invalidates the exercise of power. The court presumes that the requirements are implied in the absence of indication to the contrary in the Act, confirming the power or in the circumstances in which the Act is to be applied.   The rules requiring impartial adjudications and fair hearing can be traced back to medieval precedents, and indeed, they were not unknown in the ancient world. 

In ‘B. Raja Gopal v. General Manager, Nizam Sugar Factory Limited and another’ -  1995 (11) TMI 476 - ANDHRA PRADESH HIGH COURT, the High Court discussed the two basic principles of Natural Justice are-

• nemo judex causa sua - No one should be made a Judge in his own case or rule against bias;
• audi alteram partem - Hear the other party, or the rule of Fair Hearing or the Rule no one should be condemned unheard

Bias is one of the limbs of natural justice. The doctrine of bias emerges from the legal maxim nemo debet esse judex in propria causa. It applies only when the interest attributed to an individual is such so as to tempt him to make a decision in favor of or to further his own cause.   Question of bias depends on the facts and circumstances of each case. It cannot be an imaginary one or come into existence by an individual’s perception based on figment of imagination. 

The test for bias is whether a reasonable intelligent man, fully appraised of all the circumstances, would feel a serious apprehension of bias ‘R. v. Moore, ex parte Brooks’ - (1969) 2 OR 677.

Prof. Wade elucidated the principle-  “Nemo Judex in Re Sua” - a Judge is disqualified for determining any case in which he may be, or may fairly be suspected to be, biased. So important is the rule that Coke supposed, as we have seen, that it should prevail even over an Act of Parliament.

 Slade, J., speaking for the Queen's Bench Division in ‘R. v. Camborne Justices’ -  (1954) 2 All ER 850 to 855 said that its continued and inappropriate application may lead to the erroneous impression that it is more important that justice should appear to be done than that it should in fact be done. The application of this rule has been aptly described by Garner as under:

“The natural justice ‘bias’ rule looks to external appearance rather than to proof of actual improper exercise of power. If the reasonable observer would have the requisite degree of suspicion of bias in the decision-maker then that decision can be challenged. It is a matter of courts ensuring that justice is seen to be done.”

The rule against bias is an intrinsic requirement of the administration of justice. Breach of this rule disqualifies a judge/Arbitrator to adjudicate the dispute before him and if the judge/Arbitrator had already adjudicated upon it, renders the adjudication null and void.

In ‘Rex v. Sussex’- (1924) 1 KB 256 claim of damages was made by consequent upon collision which took place between the motor cycle driven by M and a motor cycle and side car driven by W.W alleged that he and his wife suffered injuries due to negligence of M. The Police also took out summons against M for dangerous driving of motor cycle. After the hearing of the case, the Justices retired to consider their decision and along with them the deputy clerk also retired with a view to assist them, should they desire to be advised on any point of law. The Justices did not consult him. They convicted M, the applicant, and imposed a fine of £ 10 and costs. It was then brought to the notice of the Justices that the deputy clerk was a brother of solicitor of W. The question before the court was, whether the judgment was invalidated on account of bias. Lord Hewart C.J, with whom other Law Lords concurred, held that decision was invalidated due to bias.

 In ‘K.B.Sathyanarayana Rao and others v. State of Karnataka and others’ - 1977 (8) TMI 179 - KARNATAKA HIGH COURT, it was held by the Karnataka High Court that if a member of a Tribunal is related to one of the parties then it is a clear case of bias. 

In ‘Secretary to Government, Transport Department, Madras v. Munuswamy Mudaliar and another’ -  1988 (8) TMI 380 - SUPREME COURT, while dealing with the concept of bias as a part of natural justice, the Court observed that a predisposition to decide for or against one party, without proper regard to the true merits of the dispute is bias. There must be reasonable apprehension of that predisposition. The reasonable apprehension must be based on cogent materials. Needless to say, personal bias is one of the limbs of bias, namely, pecuniary bias, personal bias and official bias.

In ‘S. Parthasarathi v. State of A.P’-  1973 (9) TMI 101 - SUPREME COURT the Supreme Court held 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 inquiry; 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.

 In  ‘Bhajan Lal, Chief Minister, Haryana v. M/s Jindal Strips Limited’ - 1994 (8) TMI - SUPREME COURT, it was held by the Apex Court that Bias is the second limb of natural justice. Prima facie no one should be a judge in what is to be regarded as sua causa, whether or not he is named as a party. The decision-maker should have no interest by way of gain or detriment in the outcome of a proceeding. Interest may take many forms. It may be direct, it may be indirect, it may arise from a personal relationship or from a relationship with the subject-matter, from a close relationship or from a tenuous one.

In ‘BCL Industries Limited v.  Union of India and others’ - 2019 (5) TMI 1276 – P&H, the respondent department issued a show cause notice to the petitioner alleging clandestine removal of goods. The petitioner filed reply to the show cause notice. The Assistant Commissioner dropped the show cause notice. The Commissioner, GST Commissionerate, Ludhiana reviewed the order passed by the Assistant Commissioner vide order dated 20.2.2018 and directed him to file an appeal before Commissioner (Appeals), Ludhiana. The Assistant Commissioner in compliance thereto filed an appeal before the Commissioner (Appeals) which is pending before Mrs. Charul Baranwal, Commissioner (Appeals) Ludhiana. 

The petitioner alleges that Mrs. Charul Baranwal is holding the charge of Commissioner (Appeals) Ludhiana and she is wife of Commissioner who had reviewed order passed by Assistant Commissioner and directed him to file appeal on his behalf before Commissioner (Appeals). Thus, the husband is holding charge of appellant whereas the wife is holding charge of appellate authority. Consequently, there is reasonable apprehension in the mind of the petitioner about the bias.

The petitioner requested to transfer the appeal to another Commissioner (Appeals).  The Chief Commissioner, Central Goods and Services Tax (Chandigarh Zone), Chandigarh (CGST) has refused to transfer appeal from Commissioner (Appeals) Ludhiana to some other Commissioner (Appeals). Further prayer has been made for restraining respondent No.4 - Commissioner (Appeals), Ludhiana from deciding the appeal.

On considering the facts and circumstances of the case the High Court set aside the order of Chief Commissioner, CGST, Chandigarh in refusing to transfer appeal of the petitioner from Commissioner (Appeals) Ludhiana to some other Commissioner (Appeals).

 In view of the settled legal position enunciated above, the following broad principles emerge-

• Question of bias depends on the facts and circumstances of each case. It cannot be an imaginary one or come into existence by an individual’s perception based on figment of imagination.
• Justice should both be done and be manifestly seen to be done. Nothing is to be done which creates even a suspicion that there has been an improper interference with the course of justice.
• To adjudge the attractability of plea of bias, a court is required to adopt a deliberative and logical thinking based on the acceptable touchstone and parameters for testing such a plea and not to be guided or moved by emotions or for that matter by one’s individual perception or misguided intuition.