TMI Blog2011 (7) TMI 1358X X X X Extracts X X X X X X X X Extracts X X X X ..... e with the Committee that objection by both sides perhaps alone apart from anything else is sufficient to confirm his impartiality . However, the issue of bias of respondent No.3 has not to be seen from the view point of this Court or for that matter the Committee. It has to be seen from the angle of a reasonable, objective and informed person. What opinion he would form! It is his apprehension which is of paramount importance. From the facts narrated in the earlier part of the judgment it can be said that petitioner's apprehension of likelihood of bias against respondent No.3 is reasonable and not fanciful, though, in fact, he may not be biased. Belated plea taken by the petitioner that by virtue of his active participation in the meeting held by the Bar Association of India, respondent No.3 will be deemed to be biased against him does not merit acceptance. It is also significant to note that respondent No.3 had nothing personal against the petitioner. He had taken part in the seminar as Vice-President of the Association. The concern shown by senior members of the Bar including respondent No.3 in the matter of elevation of the petitioner, who is alleged to have misused his ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of report which may in all probability compel the Committee to make a request to the Chairman to extend the time in terms of proviso to Rule 9(2)(c). This Court or, for that reason, no Court can render assistance to the petitioner in a petition filed with the sole object of delaying finalisation of the inquiry. However, keeping in view our finding on the issue of bias, we would request the Chairman to nominate another distinguished jurist in place of respondent No.3. The proceedings initiated against the petitioner have progressed only to the stage of framing of charges and the Committee is yet to record its findings on the charges and submit report. Therefore, nomination of another jurist will not hamper the proceedings of the Committee and the reconstituted Committee shall be entitled to proceed on the charges already framed against the petitioner. In the result, the writ petition is dismissed with the aforesaid observations. - G.S. Singhvi And Chandramauli Kr. Prasad, JJ. JUDGMENT G.S. Singhvi,. 1. Although, the prayers made in this petition filed under Article 32 of the Constitution are for quashing order dated 24.4.2011 passed by t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r due consideration, the Chairman declined to accept the request of respondent No.3 and asked him to continue as member of the Committee. Thereupon, respondent No.3 sent letter dated 21.1.2010 and agreed to accept the assignment. On that very day, Convenor of the Campaign for Judicial Accountability and Reform sent a letter to the Vice-President wherein a demand was made in the garb of making suggestion that Mr. Justice V.S. Sirpurkar should recuse from the Committee because he had association with the petitioner as a Judge of the Madras High Court from 1997 to 2003. Similar suggestion-cum-demand was made qua respondent No.3 by stating that the petitioner had consulted respondent No.3 and the latter had advised him to get a commission of inquiry appointed to go into the charges. 5. On being instructed by the Chairman, the Secretary General of the Rajya Sabha forwarded a copy of the aforesaid letter to respondent No.3. In his response dated 27.1.2010, respondent No.3 detailed the background in which the petitioner had met him on 6.12.2009 and what transpired between them. The relevant paragraphs of that letter read as under: I would like to place on record as to w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f invite an inquiry under the Commissions of Inquiry Act, 1952 and offer to proceed on leave during the Inquiry. There was neither consultation on the merits of the charges nor any opinion sought or given. He did not seek my professional services for his case. The matter ended there. What I told him in private when he met me at my residence was nothing but what I had earlier demanded in public at the seminar. There is absolutely no question of conflict of interest and duty in such a case. When the Hon'ble Chairman of Rajya Sabha, after due consideration of my offer to quit, requested me to continue, I accepted the request most respectfully as it is a call to public duty from no less a person than the Vice-President of India, which I shall not shirk. 6. On 12.5.2010, the petitioner suo moto sent a letter to the Vice- President of India and Chairman, Rajya Sabha stating therein that through print and electronic media he had come to know about constitution of the Committee under Section 3(2) of the Act. The petitioner claimed that the allegations levelled against him were false and baseless. He expressed anguish on being prevented from performing his judicial work and pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Major General (Dr.) Siva Kumar, Survey of India, Department of Science and Technology, who, ultimately on 15th February, 2010, produced a survey map to my wife, Dr. K.M. Vinodhini Dinakaran, holding that there is no encroachment of any government/public lands either by me or by my wife. 6. All the allegations leveled against me are false and baseless. 7. Myself and my family members are humiliated and put into great hardship by the vested interest persons; and I have been prevented to discharge my obligations under the constitution to perform the judicial work, pending enquiry by the Committee. But, the enquiry is yet to commence. Your Excellency may kindly appreciate that the enquiry initiated against me cannot be an endless wait. Having patiently waited all these days for an opportunity to explain my case that the allegations are baseless and there is no material and merit whatsoever, I earnestly request Your Excellency to do the needful, so that, my genuine grievance may kindly be redressed at the earliest and justice be rendered to me expeditiously. With kind regards, Yours sincerely, Sd/- [P.D. Dinakaran] (emphasis supplie ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ioner claimed that respondent No.3 had led a delegation of the advocates to meet the then Chief Justice of India and was a signatory to the representation made by the senior advocates against his elevation to the Supreme Court. The petitioner further claimed that he felt agitated by the attitude of respondent No.3 because earlier the said respondent had not only appreciated his work but even called upon him to communicate his appreciation and also sent congratulatory message on his name being cleared for elevation to the Supreme Court. The petitioner also stated that he along with his wife and one K. Venkatasubbaraju met respondent No.3 at his residence and, during the meeting, respondent No.3 admitted that he was misled by certain vested interest in signing the representation. Paragraphs 6, 7 and 8 of the letter written by the petitioner are reproduced below: 6. Once I came to know that Shri P.P. Rao has led the delegation against me demanding that I should not be elevated, I was agitated by this attitude of Shri P.P. Rao. Earlier Shri P.P. Rao had always appreciated my work on the bench and even called on me to communicate the same. When I was a judge of the High Court ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... submitted to the Chairman and requested that decision on the same be awaited. On 20.4.2011, the petitioner made an application to the Committee and raised several objections against notice dated 16.3.2011 including the one that respondent No.3 was biased against him. After two days, respondent No.3 sent letter dated 22.4.2011 to the Presiding Officer of the Committee and reiterated all that he had said in letter dated 27.1.2010 but, at the same time, respondent No.3 specifically denied that he had pronounced upon the guilt of the petitioner. He also denied that the petitioner had consulted him or that any opinion was sought and given. Respondent No.3 acknowledged that when news appeared about the petitioner's name having been cleared for elevation to the Supreme Court, he had congratulated him vide e-mail dated 30.8.2009, referred to letter dated 19.1.2010 addressed to the Chairman and indicated that it was his duty to recuse from the membership of the Committee once again. Respondent No.3 prepared a similar letter for being sent to the Chairman, but on being advised by the Presiding Officer of the Committee, he held back the same. 12. After considering the objections ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be quite comfortable with Mr. Rao on the Committee. Now the objection has come from the side of the Judge whose conduct is the subject of enquiry. The earlier objection was completely misconceived and without basis but it did not have any ulterior motive. Unfortunately the same can not be said about the present objection. It is clearly an after thought and has an oblique motive. The applicant was aware that Mr. Rao is a member of the Committee from the day one. As early as on May 12, 2010, he had addressed a letter to the Chairman, Rajya Sabha urging him to have the proceedings before the Committee expedited. In the letter, he mentioned the names of each of the three members of the Committee, as it was in existence at that time, including Mr. P.P. Rao, Senior Advocate but there is not a whisper of protest against Mr. Rao's inclusion in the Committee. Paragraph 3 of the letter reads as follows:- I have also learnt through print and electronic media that a Committee, as contemplated under Section 3(b) of [The] Judges (Inquiry) Act, 1968, has been constituted by Your Excellency consisting of Hon'ble Mr. Justice V.S. Sirpurkar, Judge, Supreme Count o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ainst the petitioner. Shri Sharan emphasized that by virtue of his active participation in the seminar organized by the Bar Association of India on 28.11.2009, respondent No.3 had disqualified himself from being a member of the Committee and on being apprised of the relevant facts, the Chairman should have changed the Committee by accepting the recusal of respondent No.3. Learned senior counsel argued that a fair, impartial and unbiased investigation into the allegations levelled against him is an integral part of fundamental right to life guaranteed to the petitioner under Articles 14 and 21 of the Constitution and he cannot be deprived of that right by invoking the doctrine of waiver. In support of his arguments, Shri Amarendra Sharan relied upon the judgments of this Court in Maneka Gandhi v. Union of India (1978) 1 SCC 248, M.H. Hoskot v. State of Maharashtra (1978) 3 SCC 544, Ranjit Thakur v. Union of India (1987) 4 SCC 611, Triveniben v. State of Gujarat (1989) 1 SCC 678, R v. Bow Street Metropolitan Stipendiary Magistrate and others, ex parte Pinochet Ugarte (No.2) (1999) 1 All ER 577 and In re: Medicaments and Related Classes of Goods (No.2) 2001 (1) WLR 700. Learned senior ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e, the petitioner will be deemed to have waived his right to question the constitution of the Committee. 15. Shri Prashant Bhushan, learned counsel for the intervenor also referred to letter dated 12.5.2010 and submitted that the petitioner did not harbour any apprehension of bias of respondent No.3, whose participation in the seminar was known to him as early as in November 1999 and this was the reason he sought appointment from the said respondent and argued that belated objection raised by the petitioner against the constitution of the Committee should not be entertained. 16. We have thoughtfully considered the entire matter. Two questions which arise for consideration are whether by virtue of his active participation in the seminar organised by the Bar Association of India on 28.11.2009 and his opposition to the elevation of the petitioner to this Court are sufficient to disqualify respondent No.3 from being included in the Committee constituted under Section 3(2) of the Act and whether by his conduct the petitioner will be deemed to have waived his right to object to the appointment of respondent No.3 as a member of the Committee. 17. Since a good ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that the same was ultra vires the provisions of Articles 100, 105, 118, 121 and 124(5) of the Constitution. He had also sought a declaration that the motion presented by 108 Members of the Parliament for the removal of the Judge had lapsed with the dissolution of the Ninth Lok Sabha. Along with the four writ petitions, the Court also transferred and disposed of Writ Petition (C) No.1061 of 1991 which was pending before the Delhi High Court with prayer similar to those made in one of the four writ petitions. The majority judgment was delivered by B.C. Ray, J. on his behalf and on behalf of M.N. Venkatachaliah, J.S. Verma and S.C. Agrawal, JJ. The learned Judge noticed the procedure prevalent in England as also the provisions contained in Canadian, Australian and United States Constitutions for removal of judges of Superior Courts, referred to the resolutions passed in 19th Biennial Conference of the International Bar Association held at New Delhi in October, 1982, the First World Conference on the Independence of Justice held at Montreal on 10.6.1983, Seventh United Nations Congress on the Prevention of Crime and the Treatment of Offenders held at Milan in August-September, 1985, de ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be altered by each Lok Sabha. The significance of the word `proved' before the expression `misbehaviour or incapacity' in clause (4) of Article 124 is also indicated when the provision is compared with Article 317 providing for removal of a member of the Public Service Commission. The expression in clause (1) of Article 317 used for describing the ground of removal is `the ground of misbehaviour' while in clause (4) of Article 124, it is, `the ground of proved misbehaviour or incapacity'. The procedure for removal of a member of the Public Service Commission is also prescribed in clause (1) which provides for an inquiry by the Supreme Court on a reference made for this purpose. In the case of a Judge, the procedure for investigation and proof is to be in accordance with the law enacted by the Parliament under clause (5) of Article 124. In view of the fact that the adjudication of the ground of misbehaviour under Article 317(1) is to be by the Supreme Court, in the case of a Judge who is a higher constitutional functionary, the requirement of judicial determination of the ground is reinforced by the addition of the word `proved' in Article 124(4) and the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tee shall be constituted unless the motion has been admitted in both Houses and where such motion has been admitted in both Houses, the Committee shall be constituted jointly by the Speaker and the Chairman: Provided further that where notices of a motion as aforesaid are given in the Houses of Parliament on different dates, the notice which is given later shall stand rejected. (3) The Committee shall frame definite charges against the Judge on the basis of which the investigation is proposed to be held. (4) Such charges together with a statement of the grounds on which each such charge is based shall be communicated to the Judge and he shall be given a reasonable opportunity of presenting a written statement of defence within such time as may be specified in this behalf by the Committee. (8) The Committee may, after considering the written statement of the Judge and the medical report, if any, amend the charges framed under sub-section (3) and in such case, the Judge shall be given a reasonable opportunity of presenting a fresh written statement of defence. (9) The Central Government may, if required by the Speaker or the Chairman, or both, as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is pending. (3) If the motion is adopted by each House of Parliament in accordance with the provision of clause (4) of article 124 or, as the case may be, in accordance with that clause read with article 218 of the Constitution, then, the misbehaviour or incapacity of the Judge shall be deemed to have been proved and an address praying for the removal of the Judge shall be presented in the prescribed manner to the President by each House of Parliament in the same session in which the motion has been adopted. 20. An analysis of the above reproduced provisions shows that Section 3(1) of the Act provides for admission of motion by the Speaker or, as the case may be, the Chairman provided it is supported by 100 members of the House of the People or 50 members of the Council of States, as the case may be. The Speaker or, as the case may be, the Chairman, is entitled to consult such person, if any, as he thinks fit and to consider such material, if any, as may be available to him. If the motion is admitted, the Speaker or, as the case may be, the Chairman has to keep the motion pending and to constitute a Committee for the purpose of making an investigation into the g ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... capacity, no further steps should be taken in either House of Parliament. Section 6(2) provides that if the report of the Committee contains a finding that the Judge is guilty of any misbehaviour or suffers from any incapacity, then the motion together with the report shall be taken up for consideration by the House in which the motion is pending. Section 6(3) provides that if the motion is adopted by each House of Parliament in accordance with the provisions of Article 124(4) or, as the case may be, in accordance with that clause read with Article 218, then the misbehaviour or incapacity of the Judge shall be deemed to have been proved and an address praying for the removal of the Judge shall be presented in the prescribed manner to the President by each House of Parliament in the same session in which the motion has been adopted. 21. In the backdrop of the relevant constitutional and statutory provisions, we shall now consider whether participation of respondent No.3 in the seminar organised by the Bar Association of India where he made speech opposing the petitioner's elevation to this Court and also drafted a resolution to that effect can lead to an inference that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 24. In Russel v. Duke of Norfolk (1949) 1 All ER 108, Tucker, L.J. observed: There are, in my view, no words which are of universal application to every kind of inquiry and every kind of domestic tribunal. The requirements of natural justice must depend on the circumstances of the case, the nature of the inquiry, the rules under which the tribunal is acting, the subject-matter that is being dealt with, and so forth. In Byrne v. Kinematograph Renters Society Limited (1958) 2 All ER 579, Lord Harman made the following observations: What, then, are the requirements of natural justice in a case of this kind? First, I think that the person accused should know the nature of the accusation made; secondly, that he should be given an opportunity to state his case; and thirdly, of course, that the tribunal should act in good faith. I do not think that there really is anything more. In Union of India v. P.K. Roy AIR 1968 SC 850, Ramaswami, J.observed: The extent and application of the doctrine of natural justice cannot be imprisoned within the strait-jacket of a rigid formula. The application of the doctrine depends upon the nature of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... exercise of a judicial power are merely those which facilitate if not ensure a just and fair decision. In recent years the concept of quasi-judicial power has been undergoing a radical change. What was considered as an administrative power some years back is now being considered as a quasi- judicial power. The Court then considered whether the rules of natural justice were applicable to a case involving selection for appointment to a particular service. The learned Attorney General argued that the rules of natural justice were not applicable to the process of selection. The Constitution Bench referred to the judgments of the Queen's Bench in re H.K. (An infant) (1967) 2 QB 617 and of this Court in State of Orissa v. Dr.(Miss) Binapani Dei (1967) 2 SCR 625 and observed: The aim of the rules of natural justice is to secure justice or to put it negatively to prevent miscarriage of justice. These rules can operate only in areas not covered by any law validly made. In other words they do not supplant the law of the land but supplement it. The concept of natural justice has undergone a great deal of change in recent years. In the past it was thought that it includ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... new dimension to the rule of audi alteram partem and declared that an action taken in violation of that rule is arbitrary and violative of Articles 14 and 21 of the Constitution. The learned Judge referred to Ridge v. Baldwin (1964) AC 40, State of Orissa v. Dr.(Miss) Binapani Dei (supra), re H.K.(An Infant) (supra) and A.K. Kraipak v. Union of India (supra) and observed: The audi alteram partem rule is intended to inject justice into the law and it cannot be applied to defeat the ends of justice, or to make the law lifeless, absurd, stultifying, self-defeating or plainly contrary to the common sense of the situation . Since the life of the law is not logic but experience and every legal proposition must, in the ultimate analysis, be tested on the touchstone of pragmatic realism, the audi alteram partem rule would, by the experiential test, be excluded, if importing the right to be heard has the effect of paralysing the administrative process or the need for promptitude or the urgency of the situation so demands. But at the same time it must be remembered that this is a rule of vital importance in the field of administrative law and it must not be jettisoned save in very ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ibed by law for depriving a person of his fundamental right, in this case the right to life, must conform to the norms of justice and fairplay. Procedure, which is unjust or unfair in the circumstances of a case, attracts the vice of unreasonableness, thereby vitiating the law which prescribes that procedure and consequently, the action taken under it. Any action taken by a public authority which is invested with statutory powers has, therefore, to be tested by the application of two standards: the action must be within the scope of the authority conferred by law and secondly, it must be reasonable. If any action, within the scope of the authority conferred by law, is found to be unreasonable, it must mean that the procedure established by law under which that action is taken is itself unreasonable. The substance of the law cannot be divorced from the procedure which it prescribes for, how reasonable the law is, depends upon how fair is the procedure prescribed by it. Sir Raymond Evershed says that, from the point of view of the ordinary citizen, it is the procedure that will most strongly weigh with him. He will tend to form his judgment of the excellence or otherwise of the lega ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... om participating in the proceedings which resulted in issue of certificate in favour of the corporation to take water of certain streams without permission of the mill owners. While answering the question in negative, Blackburn, J. evolved the following rule: ................There is no doubt that any direct pecuniary interest, however small, in the subject of inquiry, does disqualify a person from acting as a judge in the matter; and if by any possibility these gentlemen, though mere trustees, could have been liable to costs, or to other pecuniary loss or gain, in consequence of their being so, we should think the question different from what it is: for that might be held an interest. But the only way in which the facts could affect their impartiality, would be that they might have a tendency to favour those for whom they were trustees; and that is an objection not in the nature of interest, but of a challenge to the favour. Wherever there is a real likelihood that the judge would, from kindred or any other cause, have a bias in favour of one of the parties, it would be very wrong in him to act; and we are not to be understood to say, that where there is a real bias of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g out of the collision in respect of which they had convicted the applicant. The solicitor in his affidavit stated that had he known the above facts he would have taken the objection before the case began. This rule was thereafter obtained on the ground that it was irregular for the deputy clerk in the circumstances to retire with the justices when considering their decision. The King's Bench quashed the conviction on the ground of bias. Lord Hewart C.J., posed the following question: ..............The question therefore is not whether in this case the deputy clerk made any observation or offered any criticism which he might not properly have made or offered; the question is whether he was so related to the case in its civil aspect as to be unfit to act as clerk to the justices in the criminal matter...... ....... He then proceeded to observe: ......................The answer to that question depends not upon what actually was done but upon what might appear 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. Speaking for myself, I accept the statements contained ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uncil, proceedings under the Acts before any court of summary jurisdiction. On June 20, 1952, a fresh sealed authority was given to Rundle and the other sampling officers, being an extension of the earlier authorities, and this sealed authority was in force at all material times. This authority empowered the sampling officers to institute proceedings under, inter alia, the Food and Drugs Acts in their own discretion and without seeking any specific authority from the council to do so, and it became the practice for the chief sampling officer to report to the Health Committee the action his subordinates had in fact taken. On January 4, 1954, Rundle laid the two informations against the applicant. On January 19, 1954, the chief sampling officer reported to the Health Committee that such proceedings were pending against the applicant. On February 23, 1954, the council received and adopted the report of its Health Committee dated January 19, 1954. On April 13, 1954, the chief sampling officer reported to the Health Committee the result of the proceedings against the applicant. On May 11, 1954, the council received and adopted the report of its Health Committee dated April 13, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to influence the justices in their decision on January 26, 1954. The question posed in that case was what interest in a judicial or quasi-judicial proceeding does the law regard as sufficient to incapacitate a person from adjudicating or assisting in adjudicating on it upon the ground of bias or appearance of bias? It is, of course, clear that any direct pecuniary or proprietary interest in the subject-matter of a proceeding, however small, operates as an automatic disqualification. In such a case the law assumes bias. What interest short of that will suffice? The Divisional Court referred to judgment of Blackburn, J. in The Queen v. Rand (supra), in which the test of real likelihood of bias was evolved, Lord Esher M.R. in Eckersley v. Mersey Docks and Harbour Board (1894) 2 QB 667, Rex v. Justices of County Cork (1910) 2 IR 271, Rex v. Sussex Justices, Ex parte McCarthy (supra), Frome United Breweries Company v. Bath Justices, (1926) AC 586, Rex v. Essex Justices, Ex parte Perkins (1927) 2 KB 475 and held: In the judgment of this court the right test is that prescribed by Blackburn J., namely, that to disqualify a person from acting in a judicial or quas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ibunal, justice requires that the decision should not be allowed to stand. I am by no means persuaded that, in its original form, the real likelihood test required that any more rigorous criterion should be applied. Furthermore the test as so stated gives sufficient effect, in cases of apparent bias, to the principle that justice must manifestly be seen to be done, and it is unnecessary, in my opinion, to have recourse to a test based on mere suspicion, or even reasonable suspicion, for that purpose In conclusion, I wish to express my understanding of the law as follows. I think it possible, and desirable, that the same test should be applicable in all cases of apparent bias, whether concerned with justices or members of other inferior tribunals, or with jurors, or with arbitrators. Likewise I consider that, in cases concerned with jurors, the same test should be applied by a judge to whose attention the possibility of bias on the part of a juror has been drawn in the course of a trial, and by the Court of Appeal when it considers such a question on appeal. Furthermore, I think it unnecessary, in formulating the appropriate test, to require that the court should look at ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Lord Hoffmann and his wife with Amnesty International and its constituents were revealed. Lord Browne-Wilkinson noted that there was no allegation that Lord Hoffmann was in fact biased but the argument was that there was a real danger or reasonable apprehension or suspicion that Lord Hoffmann might have been biased and proceeded to observe: The fundamental principle is that a man may not be a judge in his on cause. This principle, as developed by the courts, has two very similar but not identical implications. First it may be applied literally: if a judge is in fact a party to the litigation or has a financial or proprietary interest in its outcome then he is indeed sitting as a judge in his own cause. In that case, the mere fact that he is a party to the action or has a financial or proprietary interest in its outcome is sufficient to cause his automatic disqualification. The second application of the principle is where a judge is not a party to the suit and does not have a financial interest in its outcome, but in some other way his conduct or behaviour may give rise to a suspicion that he is not impartial, for example because of his friendship with a party. This secon ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ICL was established, for tax purposes, to carry out part of the functions of AI--those parts which were charitable--which had previously been carried on either by AI itself or by AIL. Lord Hoffmann is a director and chairman of AICL, which is wholly controlled by AI, since its members (who ultimately control it) are all the members of the international executive committee of AI. A large part of the work of AI is, as a matter of strict law, carried on by AICL which instructs AIL to do the work on its behalf. In reality, AI, AICL and AIL are a close-knit group carrying on the work of AI. However, close as these links are, I do not think it would be right to identify Lord Hoffmann personally as being a party to the appeal. He is closely linked to AI but he is not in fact AI. Although this is an area in which legal technicality is particularly to be avoided, it cannot be ignored that Lord Hoffmann took no part in running AI. Lord Hoffmann, AICL and the executive committee of AI are in law separate people. Then is this a case in which it can be said that Lord Hoffmann had an `interest' which must lead to his automatic disqualification? Hitherto only pecuniary and proprietar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pinion if Lord Hoffmann had been a member of AI he would have been automatically disqualified because of his non-pecuniary interest in establishing that Senator Pinochet was not entitled to Immunity. Indeed, so much I understood to have been conceded by Mr Duffy. Can it make any difference that, instead of being a direct member of AI, Lord Hoffmann is a director of AICL, that is of a company which is wholly controlled by AI and is carrying on much of its work? Surely not. The substance of the matter is that AI, AIL and AICL are all various parts of an entity or movement working in different fields towards the same goals. If the absolute impartiality of the judiciary is to be maintained, there must be a rule which automatically disqualifies a judge who is involved, whether personally or as a director of a company, in promoting the same causes in the same organisation as is a party to the suit. There is no room for fine distinctions if Lord Hewart CJ's famous dictum is to be observed: it is 'of fundamental importance that justice should not only be done, but should manifestly and undoubtedly be seen to be done'. (emphasis supplied) 33. In re M ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of South Africa has, in President of the Republic of South Africa v. South African Rugby Football Union 1999 (4) SA 147 while holding that onus of establishing that there was ground for recusal of the members of the Court was on the applicant, made the following significant observations: ............The question is whether a reasonable, objective and informed person would on the correct facts reasonably apprehend that the judge has not or will not bring an impartial mind to bear on the adjudication of the case, that is a mind open to persuasion by the evidence and the submissions of counsel. The reasonableness of the apprehension must be assessed in the light of the oath of office taken by the judges to administer justice without fear or favour; and their ability to carry out that oath by reason of their training and experience. It must be assumed that they can disabuse their minds of any irrelevant personal beliefs or predispositions. They must take into account the fact that they have a duty to sit in any case in which they are not obliged to recuse themselves. At the same time, it must never be forgotten that an impartial judge is a fundamental prerequisite for a fair ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is based upon the need for public confidence in the administration of justice. If fair-minded people reasonably apprehend or suspect that the tribunal has prejudged the case, they cannot have confidence in the decision. The hypothetical reasonable observer of the judge's conduct is postulated in order to emphasise that the test is objective, is founded in the need for public confidence in the judiciary, and is not based purely upon the assessment by some judges of the capacity or performance of their colleagues. At the same time, two things need to be remembered: the observer is taken to be reasonable; and the person being observed is a professional judge whose training, tradition and oath or affirmation require [the judge] to discard the irrelevant, the immaterial and the prejudicial . In his separate opinion, Kirby J. referred to the judgments of the House of Lords in R v. Gough (supra) as also R v. Bow Street Metropolitan Stipendiary Magistrate and others, ex parte Pinochet Ugarte (No.2) (supra) and observed: It is a fundamental rule of natural justice and an abiding value of our legal system that every adjudicator must be free from bias. This sam ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Every member of a tribunal that sits to try issues in judicial or quasi-judicial proceedings must be able to act judicially; and the essence of judicial decisions and judicial administration is that judges should be able to act impartially, objectively and without any bias. In such cases the test is not whether in fact a bias has affected the judgment; the test always is and must be whether a litigant could reasonably apprehend that a bias attributable to a member of the tribunal might have operated against him in the final decision of the tribunal. It is in this sense that it is often said that justice must not only be done but must also appear to be done. 36. In A.K. Kraipak v. Union of India (supra), the rule of bias was discussed in some detail in the context of selection for appointment to the Indian Forest Service. Although, Naqishbund who was a candidate for selection to the All India Forest Service and was also a member of the selection board did not sit in the selection board at the time of his name was considered but participated in its deliberations when the names of other candidates, who were his rivals were considered. Two important questions consi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 38. In Dr. G. Sarana v. University of Lucknow (supra), the Court referred to the judgments in A.K. Kraipak v. Union of India (supra), S. Parthasarthi v. State of A.P. (supra) and observed: .........the real question is not whether a member of an administrative board while exercising quasi-judicial powers or discharging quasi-judicial functions was biased, for it is difficult to prove the mind of a person. What has to be seen is whether there is a reasonable ground for believing that he was likely to have been biased. In deciding the question of bias, human probabilities and ordinary course of human conduct have to be taken into consideration............ 39. In Ashok Kumar Yadav v. State of Haryana (1985) 4 SCC 417, the Court while reiterating that the judgment in A.K. Kraipak's case represents an important landmark in the development of administrative law and has contributed in a large measure to the strengthening of the rule of law, made a significant departure in cases involving selection by the Public Service Commissions. All this is evident from paragraph 18 of the judgment, which is extracted below: 18. We must straightaway point out ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n, they are functioning not as individuals but as the Public Service Commission. Of course, we must make it clear that when a close relative of a member of a Public Service Commission is appearing for interview, such member must withdraw from participation in the interview of that candidate and must not take part in any discussion in regard to the merits of that candidate and even the marks or credits given to that candidate should not be disclosed to him. (emphasis supplied) 40. The real likelihood test was again applied in Ranjit Thakur v. Union of India (1987) 4 SCC 611. In that case, the appellant had challenged his dismissal from service on the ground of violation of the provision contained in Section 130 of the Army Act, 1950. The facts of that case were that the appellant, who was already serving sentence of 28 days rigorous imprisonment, is said to have committed another offence for which he was subjected to summary court-martial and was dismissed from service. Respondent No.4 who had earlier punished the appellant was a member of the summary court-martial in terms of Section 130 of the Army Act, 1950. The appellant was entitled to ob ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ., p. 214. Halsbury's Laws of England, 4th Edn., Vol. 2, para 551, p. 282 describe that the test for bias is whether a reasonable intelligent man, fully apprised of all the circumstances, would feel a serious apprehension of bias. (emphasis supplied) 42. In Bihar State Mineral Development Corporation v. Encon Builders (I) (P) Ltd. (2003) 7 SCC 418, the Court applied the rule of bias in the context of a provision in the agreement which empowered the Managing Director of the appellant to terminate the agreement and also act as arbitrator. This Court applied the rule that a person cannot be a judge of his own cause and observed: Actual bias would lead to an automatic disqualification where the decision-maker is shown to have an interest in the outcome of the case. Actual bias denotes an arbitrator who allows a decision to be influenced by partiality or prejudice and thereby deprives the litigant of the fundamental right to a fair trial by an impartial tribunal. 43. The principles which emerge from the aforesaid decisions are that no man can be a Judge in his own cause and justice should not only be done, but manifestly be seen to be done. Sca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es may occur where all the justices may be affected by an appearance of bias, as, for instance, where a fellow justice or the justices' clerk is charged with an offence; where this occurs, it has been recommended that justices from another petty- sessional division should deal with the case, or, if the offence is indictable, that it should be committed for trial by a jury. It is because the court in the majority of cases does not inquire whether actual bias exists that the maxim that justice must not only be done but be seen to be done is applied, and the court gives effect to the maxim by examining all the material available and concluding whether there is a real possibility of bias......... 45. In the light of the above, we shall now consider whether the petitioner can invoke the rule of bias and seek invalidation of order dated 24.4.2011 and other proceedings held by the Committee on the ground that respondent No.3 is biased and prejudiced against him and as such he could not have been made as a member of the Committee under Section 3(2) of the Act. It is not in dispute that respondent No.3 participated in the seminar organised by the Bar Association of India of wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... advocates including two former Attorney Generals and in which respondent No.3 made a speech opposing his elevation to this Court and also drafted resolution for the said purpose. The proceedings of the seminar received wide publicity in the print and electronic media. Therefore, it can be said that much before constitution of the Committee, the petitioner had become aware of the fact that respondent No.3, who, as per the petitioner's own version, had appreciated his work on the Bench and had sent congratulatory message when his name was cleared by the Collegium for elevation to this Court, had participated in the seminar and made speech opposing his elevation and also drafted resolution for the said purpose. The Chairman had appointed respondent No.3 as member of the Committee keeping in view his long experience as an eminent advocate and expertise in the field of constitutional law. The constitution of the Committee was notified in the Official Gazette dated 15.1.2010 and was widely publicised by almost all newspapers. Therefore, it can reasonably be presumed that the petitioner had become aware about the constitution of the Committee, which included respondent No.3, in the m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... #39;s standing can be presumed to be aware of his right to raise an objection. If the petitioner had slightest apprehension that respondent No.3 had pre-judged his guilt or he was otherwise biased, then, he would have on the first available opportunity objected to his appointment as member of the Committee. The petitioner could have done so immediately after publication of notification dated 15.1.2010. He could have represented to the Chairman that investigation by a Committee of which respondent No.3 was a member will not be fair and impartial because the former had already presumed him to be guilty. We cannot predicate the result of the representation but such representation would have given an opportunity to the Chairman to consider the grievance made by the petitioner and take appropriate decision as he had done in March, 2010 when respondent No.3 had sought recusal from the Committee in the wake of demand made by a section of the Bar which had erroneously assumed that the petitioner had consulted respondent No.3. However, the fact of the matter is that the petitioner never thought that respondent No.3 was prejudiced or ill-disposed against him and this is the reason why he did ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the Tribunal was vitiated due to bias because Chairman of the Tribunal had appeared against the appellant in a case but declined to nullify the action taken against him on the recommendations of the Tribunal on the ground that he will be deemed to have waived the right to raise objection of bias. Some of the observations made in that case are extracted below: ...............The alleged bias in a member of the Tribunal does not render the proceedings invalid if it is shown that the objection against the presence of the member in question had not been taken by the party even though the party knew about the circumstances giving rise to the allegations about the alleged bias and was aware of his right to challenge the presence of the member in the Tribunal. It is true that waiver cannot always and in every case be inferred merely from the failure of the party to take the objection. Waiver can be inferred only if and after it is shown that the party knew about the relevant facts and was aware of his right to take the objection in question. As Sir John Romilly, M.R., has observed in Vyvyan v. Vyvyan waiver or acquiescence, like election, presupposes that the person to be bou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ale made without complying with Section 35 of the Code of the Bengal Money Lenders Act, 1940 was nullity and whether the objection against the violation of that section could be waived. After examining the relevant provisions, the Court held: A waiver is an intentional relinquishment of a known right, but obviously an objection to jurisdiction cannot be waived, for consent cannot give a court jurisdiction where there is none. Even if there is inherent jurisdiction, certain provisions cannot be waived. Maxwell in his book On the Interpretation of Statutes , 11th Edn., a p. 357, describes the rule thus: Another maxim which sanctions the non-observance of a statutory provision is that cuilibet licet renuntiare juri pro se introducto. Everyone has a right to waive and to agree to waive the advantage of a law or rule made solely for the benefit and protection of the individual in his private capacity, which may be dispensed with without infringing any public right or public policy . The same rule is restated in Craies on Statute Law , 6th Edn., at p. 269, thus: As a general rule, the conditions imposed by statutes which authorise legal proceeding ..... X X X X Extracts X X X X X X X X Extracts X X X X
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