JUDICIAL APPROACH TOWARDS

DEPARTMENTAL BIAS

Prepared & Submitted By

SAARTH DHINGRA

INTRODUCTION-
While every State today would like to call itself a welfare state almost up
to the end of nineteenth century most states contented themselves with
being “police” State. Their primary function was to provide law and order.
The idea of bringing a welfare state instead of police state was brought by
the great political thinker, Laski.

Now what exactly is a welfare State??

In the words of Abraham Lincoln,

“A community where the state power is deliberately used to modify the

normal play of economic forces so as to obtain a more equal distribution
of income for every citizen, a basic minimum irrespective of the market
value of his work and his property is known as the welfare state.”

The welfare state guarantees a minimum standard of subsistence without

removing incentives to private enterprise, and it brings about a limited
redistribution of income by means of graduated high taxation.

So far as the nature of the welfare state is concerned, the first important
thing to be kept in mind is that welfare is not a matter of charity, but a
right. Secondly, unless the minds and attitude of people are attuned to
the idea of the welfare state, they are apt to look upon the welfare as
manna from the heaven falling into the mouths of the expectant people.1

In the strictest sense, a welfare state is a government that provides for

the welfare, or the well-being, of its citizens completely. Such a
government is involved in citizens’ lives at every level. It provides for
physical, material, and social needs rather than the people providing for
their own. The purpose of the welfare state is to create economic equality
or to assure equitable standards of living for all.

The welfare state provides education, housing, sustenance, healthcare,

pensions, unemployment insurance, sick leave or time off due to injury,
supplemental income in some cases, and equal wages through price and
wage controls. It also provides for public transportation, childcare, social
1
Eddy Asirvatham, Political Theory, (New Delhi: S. Chand & Company Ltd.), 2006, p 162.
2
amenities such as public parks and libraries, as well as many other goods
and services. Some of these items are paid for via government insurance
programs while others are paid for by taxes. And so, when a state is doing
so much for its people, then it means it will have power also in its hands.

Political power is a type of power held by a group in a society which allows

administration of some or all of public resources, including labour, and
wealth. There are many ways to obtain possession of such power. At the
nation-state level political legitimacy for political power is held by the
representatives of national sovereignty. Political powers are not limited to
heads of states, however the extent to which a person or group such as
an insurgency, terrorist group, or multinational corporation possesses
such power is related to the amount of societal influence they can wield,
formally or informally. In many cases, this influence is not contained
within a single state and it refers to international power.

Political scientists have frequently defined power as "the ability to

influence the behaviour of others" with or without resistance.

One of the most famous references to power comes from the Chinese
communist leader Mao Zedong. In his words, “Political power grows
from the barrel of a gun2.”

In any social system, it is a fact that some give orders whist others obey.
The ability to command obedience is defined as power.

Power generally stems from three sources:

1. Physical sanction.

2. Material power, based on control over resources such as wages or

services.

3. Symbolic or normative power based on the allocation and

withholding of socially desired rewards such as esteem or status.

2
Eddy Asirvatham, Political Theory, (New Delhi: S. Chand & Company Ltd.), 2006 ,p 164
3
While power ultimately rests on the threat of coercion, in most political
systems some people develop the right to give orders, which they
generally expect to be obeyed. Power thus becomes authority when it is
recognised as legitimate - the right to give the order is accepted usually
because those obeying the order believe there is some common good to
be served by obedience.

When the concept of power is discussed, the two types of power will be
discussed definitely. They are the arbitrary power and the discretionary
power.

The expression “arbitrary” means in an unreasonable manner, as fixed or

done capriciously or at pleasure, without adequate determining principle,
not founded in the nature of things, non-rational, not done or acting
according to reason or judgment, depending on the will alone.3

Arbitrariness is the very negation of the rule of law. Satisfaction of this

basic test in every State action is sine qua lion to its validity. Rule of law
contemplates governance by laws and not by humour, whims or caprices
of the men to whom the governance is entrusted for the time being. It is
trite that be you ever so high, the laws are above you’. This is what men
in power must remember, always. Almost a quarter century back, the
Supreme Court in the case of S.G. Jaisinghani v. Union of India and Ors.4,
indicated the test of arbitrariness and the pitfalls to be avoided in all State
actions to prevent that vice, in a passage as under:”In this context it is
important to emphasize that the absence of arbitrary power is the first
essential of the rule of law upon which our whole constitutional system is
based. In a system governed by rule of law, discretion, when conferred
upon executive authorities, must be confined within clearly defined limits.
The rule of law from this point of view means that decisions should be
made by the application of known principles and rules and, in general,
such decisions should be predictable and the citizen should know where
3
M/s Sharma Transport Rep. by Shri D.P.Sharma v. Government of A.P. & Ors., AIR 2002
SC 322.
4
(1967) 2 SCR 703.
4
he is. In Shrilekha Vidyarthi v. State of U.P.5, it was held that if a decision
is taken without any principle or without any rule it is unpredictable and
such a decision is the antithesis of a decision taken in accordance with the
rule of law.

In Neelima Misra v. Harinder Kaur Paintal and Ors6., an authority,

however, has to act properly for the purpose for which the power is
conferred. He must take a decision in accordance with the provisions of
the Act and the statutes. He must not be guided by extraneous or
irrelevant consideration. He must not act illegally, irrationally or
arbitrarily. Any such illegal, irrational or arbitrary action or decision,
whether in the nature of legislative, administrative or quasi-judicial
exercise of power is liable to be quashed being violative of Article 14 of
the Constitution.

In Kasturi Lal Lakshmi Reddy v. State of Jammu and Kashmir & Anothers,
the constitutional power conferred on the Government cannot be
exercised by it arbitrarily or capriciously or in an unprincipled manner; it
has to be exercised for the public good. Every activity of the Government
has a public element in it and it must therefore, be informed with reason
and guided by public interest. Every action taken by the Government
must be in public interest; the Government cannot act arbitrarily and
without reason and if it does, its action would be liable to be invalidated.

The absence of arbitrary power is the first postulate of rule of law upon
which the whole Constitutional edifice is based. In a system governed by
Rule of Law, discretion when conferred upon an executive authority must
be confined within clearly defined limits. If the discretion is exercised
without any principle or without any rule, it is a situation amounting to the
antithesis of Rule of Law.7

5
(1991) 1 SCC 212.
6
AIR 1990 SC 1402.
7
Available at www.legalserviceindia.com visited on October 9, 2010.
5
On the other hand, discretionary powers are permissive, not mandatory.
They are powers granted either under statute or delegation which do not
impose a duty on the decision-maker to exercise them or to exercise them
in a particular way. Within certain constraints, decision-makers are able to
choose whether and/or how to exercise discretionary powers. Every
discretionary power vested in the executive should be exercised in a just,
reasonable and fair way. That is the essence of the Rule of Law.8

In United States v. Wunderlich9, law has reached its first finest moments
when it has freed man from the unlimited discretion of some ruler, some
civil or military official, and some bureaucrat. Where discretion is
absolute, man has always suffered. At times it has been his property that
has been invaded, at times his privacy; at times his liberty of movement;
at times his freedom of thought; at times his life. Absolute discretion is a
ruthless master. It is more destructive of freedom than any of mans other
invention.10 Discretion means sound discretion guided by law it must be
governed by rule not humour; it must not be arbitrary, vague or fanciful.
In a state of governed by the rule of Law, discretion must be confined
within clearly defined limits. A decision taken without any principle or rule
is the antithesis of a decision of a decision taken in accordance with the
rule of Law. Its exercise has always to be in conformity with rules.

A case of conferment of power together with a discretion which goes with

it to enable proper exercise of the power and therefore it is coupled with a
duty to shun arbitrariness in its exercise and to promote the object for
which the power is conferred which undoubtedly is public interest and not
individual or private gain, whim or caprice of any individual.11

Thus, power should be used reasonably in good faith and for a proper
purpose. It is said that absolute power corrupts all. So, there is a chance

8
Available at www.legalserviceindia.com visited on October 7, 2010.
9
(1951) 342 US 98.
10
John Wilkes (1770) 4 Burr 2528.
11
A.P. Aggarwal v. Govt of NCT of Delhi, AIR 2000 SC 3689.
6
that because of the unethical use of power, there can be violation of
principles of natural justice.

Concept of Natural Justice-

The term Natural Justice has not been defined in any enactment, rules or
regulations. Eminent Jurists and courts in England and India have defined
and explained the concept of Natural Justice in various decisions.12

The term Natural Justice has been evolved in contrast to legal justice. It is
said that Natural Justice is justice in deed and in truth while legal justice is
justice declared and recognized by law and enforced by courts in
accordance with the procedure established by law. Natural Justice is
justice based on human values and good conscience following a just and
fair procedure. Legal justice is justice based on technicalities of law
following the procedure established by law. Principles of Natural Justice
are principles analogous to principles of equity.13

Principles of natural justice control all actions of public authorities by

applying rules relating to reasonableness, good faith and justice, equity
and good conscience. Natural justice is a part of law which relates to
administration of justice. Rules of natural justice are indeed great
assurances of justice and fairness.14

The underlying object of rules of natural justice is to ensure fundamental

liberties and rights of subjects. They thus serve public interest. The golden
rule which stands firmly established is that the doctrine of natural justice
is not only to secure justice but to prevent miscarriage of justice.

12
P.V. Ramakrishna, ‘Principles of Natural Justice’,
http://www.aapssindia.org/articles/vpII3/vpII3h.html, visited on October 7,
2010.
13
P.V. Ramakrishna, ‘Principles of Natural Justice’,
http://www.aapssindia.org/articles/vpII3/vpII3h.html, visited on October 7,
2010.
14
Charan Lal Sahu v. Union of India, AIR 1990 SC 1480.
7
Generally, no provision is found in any statute for the observance of the
principles of natural justice by the adjudicating authorities. The question
then arises whether the adjudicating authority is bound to follow the
principles of natural justice. The law has been settled that they are the
mandatory requirement and that the justice of the common law will
supply the omission of the legislature.15 This principle is accepted in India
also.16

Scope and Object of the Principles of Natural Justice-

Principles of Natural Justice are the rules laid down by courts for the
purpose of protecting the right of an individual against adoption of
arbitrary procedure in determining questions affecting his rights by a
judicial or quasi-judicial authority.17

In A.K. Kraipak v. Union of India18, the Supreme Court laid down the
following guidelines regarding the scope and object of the principles of
Natural Justice.

(a) These rules operate in areas not covered by any law validly made. In
other words, they do not supplant the law but supplement the law.

(b) The aim of these rules is to secure justice or to put it negatively to

prevent miscarriage of justice.

(c) In view of their nature it is not possible to cast them in a narrow mould
or fit them into a straight jacket, because that would deprive them of their
flexibility or adaptability to the innumerable situations that may arise
during the course of the enquiry.

15
R. v. University of Cambridge, (1723) 1 Str 557.
16
In Maneka Gandhi v. Union of India, (1978) 1 SCC 248: AIR 1978 SC 597: (1978)2 SCR 621, Beg, C.J.
observed: “It is well established that even where there is no specific provision in a statute or rules made
there under for showing cause against action proposed to be taken against an individual, which affects the
rights of that individual, the duty to give reasonable opportunity to be heard will be implied from the nature
of the function to be performed by the authority which has the power to take punitive or damaging action.”
17
Pitchaiah v. Andhra University, AIR 1961 AP 465.
18
AIR 1976 SC 150.
8
(d) Whether a particular principle of Natural Justice is applicable to a
particular situation will depend on the facts and circumstances of each
case.

(e) Whenever a complaint is made before the court that some principle of
Natural Justice is contravened, the court has to decide whether the
observance of the rule was necessary for a just decision of the case.

(f) The concept of Natural Justice has undergone a great deal of change in
recent years. In the past it was thought that it included just two rules
namely (1) no one shall be a judge in his own cause and (2) no decision
shall be given against party without affording him a reasonable hearing.
Very soon thereafter a third rule was envisaged that quasi-judicial
enquiries must be held in good faith without bias and not arbitrarily or
unreasonably. In the course of years many more subsidiary rules came to
be added to the rules of Natural Justice.

(g) Till very recently it was the opinion of the courts that unless the
authority concerned was required by the law under which it functioned to
act judicially there was no room for the application of the rules of Natural
Justice. The validity of that limitation is now questioned.

(h) If the purpose of the rules of Natural Justice is to prevent miscarriage

of justice one fails to see why those rules should be made inapplicable to
administrative enquiries.

(i) Often times it is not easy to draw the line that demarcates
administrative enquiries from quasi-judicial enquiries. Enquiries which are
considered administrative at one time are now being considered as quasi-
judicial in character.

(j) Arriving at a just decision is the aim of both quasi-judicial enquiries as

well as administrative enquiries. An unjust decision in an administrative
enquiry may have more far-reaching effect than a decision in quasi-
judicial enquiry.

9
First basic principle– ‘No one shall be a judge in his own
cause.’

The Disciplinary Authority who conducts the inquiry or the inquiring

authority where one is appointed is a quasi-judicial authority. He acts like
a judge but he is not a judge. He takes administrative action with a
judicial approach, which requires administration of justice according rules,
following just and fair procedure.

He shall be independent, impartial, fair and objective. A person with a

foreclosed mind or a person who has prejudged the issue or
predetermined to punish the delinquent should not act as inquiry officer.
Similarly a person who is a complainant, or witness or prosecutor cannot
act as a judge. 19

In State of Uttar Pradesh v. Mohammed Nooh20, a Constable in the Utter

Pradesh Police Force who was officiating as Head Constable at the
material time was placed under suspension on 15.03.1948 as he was
suspected to be responsible for creation of a forged letter purporting to
have been issued selecting him for training in the Police Training College.
A Departmental enquiry was started against the respondent and Shri
B.N.Bhalla, the District Superintendent of Police held the trial and found
him guilty and passed an order of dismissal against him. Departmental
appeal and revision were dismissed.

The main contention of the Constable before the Supreme Court was that
Sri B.N.Bhalla, who presided over the trial, also gave his own evidence in
the proceedings at two stages and had thus become disqualified from
continuing as the judge, as he was found to be biased against the
respondent. The examination of Shri Bhalla became necessary to
contradict a witness who denied at the inquiry a statement he had made
earlier in the presence of Shri Bhalla. Accordingly, Shri Bhalla had his
testimony recorded by a Deputy Superintendent of Police.
19
Available on http://lawreports.wordpress.com/ visited on October 10, 2010.
20
AIR 1958 SC 86.
10
The Supreme Court, while laying down that a person cannot act both as a
Judge and witness, observed as follows:

The District Superintendent of Police examined a certain witness in the

course of the enquiry. It seems that witness’s evidence was considered a
vital link in the chain of evidence against the respondent. The Dist.
Superintendent of Police reached the conclusion that the witness had
turned hostile. He may have been right about that, but he also considered
it necessary to refute this evidence and make good the lacuna by bringing
other material on record. Apparently, no other witness was available. So,
the Dist. Superintendent of Police who seems to have personal knowledge
about the facts, stepped down from the Bench and got his testimony
recorded by another authority, once before charge and again after charge
and each time after that was done, stepped back from the Bench in order
solemnly to decide whether he should believe his own testimony in
preference to that of the witness who, in his judgement, had committed
per jury and gone back on the truth. It hardly matters whether this was
done in good faith or whether the truth lay that way because the
spectacle of a Judge hopping on and off the Bench to act first, as judge,
then as witness, then as judge again to determine whether he should
believe himself in preference to another witness, is startling to say the
least. It would doubtless delight the hearts of a Gillbert and Sulivan Comic
Opera audience but will hardly inspire public confidence in the fairness
and impartiality of departmental trials; and certainly not in the mind of
the respondent. Even before the constitution, departmental trials were
instituted to instill a sense of security in the services and inspire
confidence in the public about the treatment accorded to Government
servants”.

Second basic principle – ‘No one shall be condemned

unheard’

11
The concept of reasonable opportunity extends throughout the
disciplinary proceedings from the stage of framing of charges till the final
order is issued.

Art.311.Cl.(2) of the Constitution of India embodies the principles of

reasonable opportunity. It reads as follows:-

“No such person as aforesaid shall be dismissed or removed or reduced in

rank except after an inquiry in which he has been informed of the charges
against him and given a reasonable opportunity of being heard in respect
of those charges.

Provided that where it is proposed after such inquiry to impose upon him
any such penalty, such penalty may be imposed on the basis of the
evidence adduced during such inquiry and it shall not be necessary to
give such person any opportunity of making representation on the penalty
proposed.”

Maxims on which the principles of natural justice are based-

The principles of natural justice are based on two maxims recognised by

the English law. They are — nerno debet esse judex in pro pria causa (no
one should be judge in his own cause) and audi alteram partem (hear the
other side). The principle audi alteram partern, meaning— “also hear the
other party”, has been treated as of fundamental nature laying down the
norm which is to be implemented even by the international tribunals in
their proceedings.21

These are treated as fundamental principles to be observed by every

judicial authority or tribunal. A judicial authority is required to be impartial
and should not have any interest and secondly such authority is also
required not to give any decision without hearing the other side. The
concept of natural justice is bound up with this maxim. The cardinal

21
Available at http://www.legalserviceindia.com/article/l25-Nemo-in-propria-causa-judex,-
esse-debet-THE-RULE-AGAINST-BIAS.html visited on October 9, 2010.
12
 characteristic of a judicial or quasi judicial process is the impartiality of
the tribunal giving se as a corollary, to juridical qualities between the
parties before it, and the latter is apt to be gravely imperilled when one of
the parties has not been given opportunity to appear before it thus
disturbing the equilibrium between them. The essence of the rule is
notice, adequate opportunity to be heard consideration and solemn
judgment.

In the past there were only two rules comprised in the principles of natural
justice. The first was that no one will be judge in his own cause and
second that no decision can be given against a party without affording
him a reasonable hearing. Soon a third rule was envisaged that enquiry
must be held in good faith without bias and not arbitrarily or
unreasonably. In the course of years many more subsidiary rules came up
to be added to the rules of natural justice. The rules are now extended to
administrative enquiries also. The rules are also not embodied rules and
what particular rule of natural justice should apply in a given case would
depend upon the facts and circumstances of the case, frame work of the
law under which the enquiry is held and the situation of tribunal or body
of persons appointed for the purpose and, therefore, in each case a
decision has to be taken whether a particular rule of natural justice was
necessary for a just decision on the facts of that case.22

Nemo in propria causa judex , esse debet, i.e. no one should be made a
judge in his own cause. It is popularly known as the rule against bias. It is
the minimal requirement of the natural justice that the authority giving
decision must be composed of impartial persons acting fairly, without
prejudice and bias. Bias means an operative prejudice, whether conscious
or unconscious, as result of some preconceived opinion or predisposition,
in relation to a party or an issue. Dictionary meaning of the term “bias”

22
Gangadharan v. Kerala Rsheries Corpn. Ltd., (1983) 2 115 360 (Ker HC).
13
suggests anything which tends a person to decide a case other than on
the basis of evidences.23

The rule against bias strikes against those factors which may improperly
influence a judge against arriving at a decision in a particular case. This
rule is based on the premises that it is against the human psychology to
decide a case against his own interest. The basic objective of this rule is
to ensure public confidence in the impartiality of the administrative
adjudicatory process, for as per Lord Hewart CJ, in R v. Sussex24, “justice
should not only be done, but also manifestly and undoubtedly seen to be
done.”

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

Bias manifests itself variously and affects a decision in a variety of ways.

It can broadly be classified into six categories:

• Personal Bias

• Pecuniary Bias

• Subject Matter Bias

• Departmental Bias

• Preconceived Notion Bias

• Bias On Account Of Obstinacy

DEPARTMENTAL BIAS-

23
Available at http://www.legalserviceindia.com/article/l25-Nemo-in-propria-causa-judex,-
esse-debet-THE-RULE-AGAINST-BIAS.html visited on October 9, 2010.
24
(1924)1 KB 256.
14
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. 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.25

This problem came up before the Supreme Court in Hari Khemu v. Dy.
Commr. of Police26. In this case an order was challenged on 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 Gullapalli Nageswara Rao v. APSRTC27, 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.

Similarly, in Krishna Bus Service v. State of Haryana28, the Supreme Court

quashed the notification of the government which had conferred powers
of a Deputy Superintendent of Police on the General Manager, Haryana

25
Available at www.legalserviceindia.com visited on October 9, 2010.
26
AIR 1956 SC 559.
27
AIR 1959 SC 308.
28
(1985) 3 SCC 711.
15
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.

The test of likelihood of bias which has been applied in a number of cases
is based on the reasonable apprehension of a reasonable man fully
cognizant of the facts. The courts have quashed on the strength of the
‘reasonable suspicion’ of the party aggrieved without any finding that a
real likelihood of bias in fact existed. The tests of “real likelihood” and
“reasonable suspicion” are really inconsistent with each other. The
reviewing authority must take 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 seem to be done. If right-minded
persons would think that there is real likelihood of bias on the part of an
enquiry officer, he must not conduct the enquiry; nevertheless there must
be a real likelihood of bias. Surmise or conjuncture would not be enough.29
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 enquire 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.30

29
P.V. Ramakrishna, ‘Principles of Natural Justice’,
http://www.aapssindia.org/articles/vpII3/vpII3h.html, visited on October 7,
2010.
30
S. Parthasarathi v. State of Andhra Pradesh, AIR 1973 SC 2701.
16
Where members of the Public Service Commission directly participated in
the selection of candidates where their own relatives have actually been
selected with high ratings in the interview, test, it was held that the
selection suffers from bias and is liable to be struck down. It was held that
in a fair recruitment to the Civil Services the selection must not only be
devoid of bias but there must also be no reasonable likelihood of bias. It is
not necessary for the petitioners to prove beyond reasonable doubt the
factum of bias or unfairness. It is sufficient if they can show a reasonable
possibility or likelihood of bias and partisanship.31

The Andhra Pradesh High Court in M.Koteswara Rao v. Sr. Manager,

A.P.S.R.T.C.32, after discussing the case law on the subject laid down the
following principles in regard to bias –

1. Every Judge, authority, arbitrator, or a body or person having power to

decide, disputed questions of law and facts shall display fair play in
action.

2. He acquires disqualification if he has interest (either pecuniary or

otherwise) in the proceedings or conducts in a biased manner so as to
create real likelihood of bias.

3. The bias need not be established as a fact. It is sufficient if there was

real likelihood of bias or bona fide suspicion of bias or there was
substantial possibility of bias.

4. The measuring rod of actual bias or real likelihood of bias is that a

reasonable and fair-minded person adequately appraised of all relevant
facts may reasonably and bonafidely think that there was real likelihood
of bias and that bias cannot be inferred on vague suspicions of whimsical,
cupidous and unreasonable persons.

5. Bias may be apparent or inherent in the proceedings and there must be

reasonable evidence to satisfy that there was a real likelihood of bias.

31
Subhash Chandar Sharma v. State of Haryana, AIR 1987 SC 454.
32
1997(3) ALT 68.
17
6. Bias may arise under various circumstances viz., pecuniary, affinity,
consanguinity, friendship or hostility, subordinate status etc. It may be
personal bias or departmental or administrative bias or objectionable bias
(e.g. prejudging the issue).

7. Principles of waiver apply to the rule against bias provided the

objection is taken as soon as the party prejudiced knows the facts which
entitle him to object. However, in cases where even though true facts are
known, but if he establishes that he was unaware that he was entitled to
take objection, the principle will not apply.

8. The principle has no application where the authority discharges the

function under a statute or when the doctrine of necessary is invoked.

9. The proceedings or decisions afflicted with bias are wholly void.

Similarly, in Election Commission of India v. Dr. Subramaniam Swamy33, it

was with regard to misappropriation of funds by J. Jayalalitha. In order to
disqualify her from contesting elections under Art.191 read with S.9 of
Representation of Peoples Act 1995, her personal enemy Dr.
Subramaniam Swamy filed a petition before the Governor. Now, the
Governor u/A. 192 has to follow such procedures such as consult the
Election commission and seek their opinion. In this case, the Governor did
just that. The Chief Election Commissioner (CEC) was T.N. Seshan, who
happened to be a close acquaintance of Dr. Subramaniam Swamy. So J.
Jayalalitha went to the Madras High Court. The division bench of the High
Court held that Seshan was in a position to act biased. The Bench
observed that in view of the appointment of additional two members on
the EC, the EC could give its opinion through members other than CEC.
But the lacuna in this approach was that a majority decision is required. It
was thus decided that on account of divided opinion between the EC’s,
then applying the doctrine of necessity the final opinion of the CEC
must be sought.
33
(1996) 4 SCC 104.
18
CONCLUSION-

As de Smith, Woolf and Jowell state:

‘The decision maker should not be biased or prejudiced in a way that

precludes fair and genuine consideration being given to the arguments
advanced by the parties. Although perfect objectivity may be an
unrealistic objective, the rule against bias thus aims at preventing a
hearing being a sham or a ritual or a mere exercise.’

Lord Denning, once said that ‘the reason is plain enough. Justice
must be rooted in confidence: and confidence is destroyed when
right-minded people go away thinking ‘the judge was biased.’
Being prejudiced or exhibiting favouritism is but a human nature and it is
no conundrum that it is a regular feature in the deliverance of justice.
Administrative law has always been considered to be an informal form of

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justice as it has no necessity for adherence to specific procedures or rules
laid down in a statute book. This feature has made administration more
realistic and accessible forum for addressing citizen grievances. But often,
the lack of a guiding force is apparent when we witness the slip of the
judiciary to eliminate bias that comes in unknowingly. Bias can be called
an uncertainty that plagues administrative law.

According to me, if the rule against bias is applied blindly, then it will be
no surprise that almost all adjudicators will be disqualified on that account
and the decisions will be invalidated consequently. So what occupies a
greater priority is not the disqualification of a judge per se but the
identification of such a bias in decision-making. The most often asked
question is that how can the general public perceive bias in the mind of
the judges, despite the various tests for identification of bias. The public is
entitled to have confidence in the judiciary and is also entitled to impartial
adjudication. This confidence is perceivable when the facts of the case are
such that they create a cloud of doubt in the mind of the public. That
would be the cardinal identification of bias.

A mere connection to a party will not be a ground for vitiation. It must be

borne in mind that judges are co-human beings and to err is human. It is
up to the conscience of the judges to prevent the malign bias to disrupt
the ongoing process of deliverance of justice both in the judicial sense as
well as the administrative sense.

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BIBLIOGRAPHY-

1. Takwani, C.K. Lectures on Administrative Law. (Lucknow: Eastern

Book Company) 2010

2. Asirvatham, Eddy. Political Theory. (New Delhi: S. Chand &

Company Ltd.) 2006

3. Jain, M.P. Jain. S.N. Principles of Administrative Law. (New Delhi:

Lexis Nexis) 2007
4. Sathe, S.P. Administrative Law. (Nagpur: Lexis Nexis) 2008

5. Massey, I.P. Administrative Law. (Lucknow: Eastern Book Company)

2008

WEBSITES REFERRED-

1. www.legalserviceindia.com

2. www.vakilno1.com

3. www.expertlaw.com

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4. www.indlaw.com

5. www.manupatra.com

6. www.onlinedictionary.com

7. www.wordpress.com

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