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CHAPTER – 3

RULE AGAINST BIAS

SUBMITTED BY:

SANJANA

SECTION: B (81/13)

B.A. LLB (HONS.)

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Table of contents

Table of Cases……………………………………………………..3-C

_4-C

II. Rule Against Bias :Introduction………………………..

….5-C_ 6-C

III. Tests of

Bias………………………………………………………..7-C

_8-C

IV. Personal

Bias……………………………………………………....8-C_

12-C

V. Pecuniary

Bias…………………………………………………….12-C _

15-C

VI. Subject-Matter

Bias……………………………………………..16-C

VII. Departmental

Bias………………………………………………17-C _ 19-C
VIII. Pre-Conceived Notion of Bias………………………………

19-C _ 20-C

IX. Bias on Account of

Obstinacy……………………………….21-C _22-C

Doctrine of Necessity
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Conclusion……………………………………………………… …23-
C

Table of cases

A.K. Kraipak v. Union of India (1969) 2 SCC 262 : AIR 1970 SC 150………
12-C
2) BaidyanathMohapatra
v.

State

of

Orissa……………………………………………..9-C
113
(b)
3) Bonham’s
Case, (1610)
8
Co.
Rep.

…………………………………………14-C
ER
535:83
SJ

4) Cottle
v. Cottle,(1939)
2
All

501……………………………………….9-C

5) Franklin v. Minister of Town and Country Planning1948 AC 87 : (1947) 2

All ER 289 (HL)

………………………………………………………………………………

………..19-C
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G.N. Nayak v. Goa University, (2002) 2 SCC

290……………………………..……5-C

Gullapali Nageshwaa Rao v. State of AP, AIR 1959 SC

1376…………..14-C,17-C
v.
APSRTC
AIR
1959
SC

8) GullaPalli
Nageshwara Rao

308……………….16-C, 17-C
of
Police
AIR
1956
SC

9) Hari v.
Dy. Commr.

559……………………………………….18-C

10) J. Mohapatra and Co. v. State of Orissa AIR 1984 SC

1572……………………13-C
11) Jeejeebhoy v. Assistant Collector, ThanaAIR 1965 SC
1096…………………

15-C

12) Kondala Rao v. APSRTCAIR 1961 SC

82…………………………………………………

20-C
Krishna Bus Service v.

13)

State of Haryana (1985) 3 SCC 711………………..…18-C

14)
Manak lal v. Prem

Chand AIR 1957 SC 425…………………………………………..11-

15) Mineral Development

Corporation Ltd. V. State of Bihar AIR 1960

SC
468………………………………………………………………………………
……………9-C, 14-C
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16)
Murlidhar V.
Kadam
Singh AIR 1954 MP 111 …………………………………….16-C
17)
R v. Deal
Justices

exparte Curling (1881) 45 LT 439……………………………..16-C

18)
R v. Mulvihill, (1990) 1
All ER 436…………………………………………………………15-C
19)
R.
v. Hendon
Rural
District Council ex. p. Chorley, (1933) 2 KB 696……..14-C
20)
Re
(1995) 2
SCC

584…………………………………………………………………………

…22-C

21) Rt. J. P. Linhan Inc.

(138 F 20, 650)………………………………………………………22-

22) S. P. Kapoor v. State of H.P. 1981) 4 SCC

716……………………………………….9-C
23)State of U.P. v. Mohd. Nooh AIR
1958
SC
86……………………………………11-C
24) State of West Bengal v. Shivananda Pathak, AIR 1998 SC
2050………………5-C

25) Sub – Committee of Judicial Accountability v. Union of India (1991) 4

SCC 699…………………………………………………………………………

…………………………….16-C
T.

26)

GovindarajaMudaliarv.State of T.N AIR 1973 SC

974………………………….19-C
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27) Vishakapatnam Coop. Motor Transport Ltd. v. G. Bangaru Raju, AIR

1953 Mad.
709…………………………………………………………………………

……………………15-C

RULE AGAINST BIAS: Introduction

“Justice must be rooted in confidence; and confidence is destroyed

when right minded people go away thinking”.
- Lord Denning.

Bias means an operative prejudice, whether conscious or unconscious, in relation to

party or issue. Such operative prejudice may be the result of a preconceived
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opinion or a predisposition or a predetermination to decide a case in a particular

manner, so much so that it does not leave the mind open. In other words, “bias”
may be generally defined as partiality or preference, which is founded on reason
and is actuated by self-interest –whether pecuniary or personal. 1 It is in fact, a
condition of mind, which sways judgement and renders the judge unable to
exercise impartiality in a particular case. 2Bias, is a condition of mind and
therefore, it may not always be possible to furnish actual proof of bias.
However, courts for this reason cannot said to be in the crippled state. The rule
against bias strikes against those factors, which may properly influence a judge
in arriving at a decision in any particular case. The requirement of this principle is
that the judge must be impartial and must decide the case objectively on the
basis of evidence on record. The dictionary meaning of the world ‘bias’ also
suggests ‘anything which tends may be regarded as tending to cause such a
person to decide a case otherwise on evidence must be held to be biased’. In
other words a predisposition to decide for or to against one party without regard
to the merit of ‘bias’. Therefore, if a person, for whatever reason, cannot take an
objective decision the on basis of evidence on record he shall said to be biased.
A person cannot take an objective decision on the basis of evidence on record he
is said to be biased. A person cannot take an objective decision in a case in
which he has no interest, for, as a human psychology tells us, very rarely can
people take decisions against their own interests. 3X
2State of West Bengal v. Shivananda
Pathak, AIR 1998 SC 2050.

1 G.N. Nayak v. Goa University, (2002) 2 SCC 290.

3 U.P.D. Kesari “Lectures on Administrative
Law” 15th Edition 2005 pg.
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This rule of disqualification is applied not only to avoid the possibility of

a partial decision but also to ensure public confidence in the impartiality
of the administrative adjudicatory process because not only must “no
man be a judge in his own cause” but also “ justice should not only be
done but should manifestly and undoubtedly be seen to be done.” The
minimal requirement of natural justice is that the authority must be composed
of impartial persons acting fairly, without prejudice and bias. 4X

The principle NemoJudex in causa sua will not apply where the authority has no
personal liswith the person concerned. Therefore, where cases of malpractice
and pilferage by consumers of electricity were decided by the Electricity Board
itself, the Supreme Court held that it is not a violation of the rule against bias.

In the same manner every kind of preference is not sufficient to vitiate an

administrative action. If a preference is rational and unaccompanied by
considerations of personal interest, pecuniary or otherwise, it would not
vitiate a decision. Therefore, if a senior officer express appreciation of the
work of junior in the confidential report, it would not amount to bias. 5X

TESTS OF BIAS

“Nothing is to be done which creates even a suspicion that there has

been an improper interference with the course of justice”

4 I.P.Massey “administarative Law” 5th Edition 2003 pg.

5 JJR Upadhaya “Administartive Law” 7th Edition 2006 pg.

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-Lord Hewart C.J.

There was, in the past, divergence of opinion among judges in England, on test for
disqualifying bias. Some Judges laid down and applied tests of real likelihood of bias
while other judges of employed the test of reasonable suspicion of bias, the former
imposing a heavier burden of proof on the person making the allegation.

The real likelihood of bias explained that the test for disqualifying is whether the
facts, as assessed by the Court, give rise to real likelihood of bias. Likelihood
was given the meaning of possibility rather than probability. The test thus means
“atleast substantial possibility of bias”. Until recently, it was for the
Court to decide by their own evolution whether such likelihood existed in
the circumstances of the case. The test was given somewhat broader
content and it was held, that whether there was real likelihood of bias
depended not upon what actually was done but upon what might appear to
be done. It was said that the court would judge the matter as reasonable
man would judge any matter in the conduct of his own business. 6X

According to de Smith, the test of real likelihood of bias, which has been employed
in a number of leading cases in magisterial and liquor licensing law, is based on the
reasonable apprehension of the reasonable man fully apprised of the facts, that
justice must be rooted in confidence and the confidence is destroyed when right-
minded people go away thinking that judge was biased. Distinguishing from
reasonable suspicion test, he explains that real likelihood test focuses on the court’s
own evaluation of the probabilities. It is because of the maxim that “justice should

6 Narendra Kumar
“AdministartiveLaw”
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not only to be done but should seen to be done”. The test thus boils down
to the reasonable suspicion test. 7X

The reasonable suspicion test explains that justice must be seen to be done,
and that “no person should adjudicate in anyway if it might reasonably be
thought that he ought not to act because of some personal interest”.

Wade and Forsyth say that in many cases, both tests lead to the same result,
“since ‘likelihood’ is given the ‘meaning of possibility rather than probability. For,
“if there was no real possibility of bias, no reasonable person would suspect it”.

In India, from the very beginning, the emphasis remained on the dictum
that, “justice not only be done but appear to be done”. The test is not
whether, in fact, bias has affected the judgment, but whether litigant could
reasonably apprehend that bias attributed to a member of the tribunal. Bias
manifests itself variously and may effect a decision in a variety of ways. 8X

PERSONAL BIAS

Personal bias arises from a certain relationship equation between the

deciding authority and the parties, which incline him unfavorably or
otherwise on the side of one of the parties before him. Such equation may
develop out of varied forms of personal or professional hostility or
friendship. However, no exhaustive list is possible.

7 Supra note 5 pg.

8 Supra note 6 pg
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Hon’ble Court’s decision in Mineral Development Corporation Ltd. V. State of Bihar

9
, serves as a good illustration on the point. Here, the petitioners were granted a mining
lease for 99 years in 1947. But in 1955, government quashed the license. The
petitioners brought an action against the minister passing this order on the behalf of
government, on the ground that, the petitioner in 1952 opposed the minister in General
election. Therefore, on the account of political rivalry, the minister passed such an order,
and hence the order was suffered from personal bias. Supreme Court found the
allegation to be true and thus quashed the said order.X

Similarly, in BaidyanathMohapatra v. State of Orissa 10, the Supreme

Court quashed the order of the tribunal confirming premature retirement on
the ground that the chairperson of the tribunal was also a member of the
review committee, which had recommended premature retirement. X

Similarly in S. P. Kapoor v. State of H.P. 11, the Supreme Court quashed the
selection list prepared by an officer who himself was a candidate for promotion.X

In Cottle v. Cottle 12 , where the chairman of the Bench was friend of the
wife’s family, who had instituted matrimonial proceedings against her
husband and the wife had told the husband that the chairman would decide
the case in her favor, and the divisional court quash the orders. 13X
9AIR 1960 SC 468 10AIR 1989 SC 2218 11 (1981) 4 SCC 716

12Cottle v. Cottle,(1939) 2 All ER 535:83 SJ 501

13 C.K. Takwani “Lectures on Administrative law” pg.

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Real Likelihood of Bias/ Reasonable Suspicion of Bias

However, in order to challenge administrative action successfully on the ground

of personal bias, it is essential to prove that there is a “reasonable suspicion of
bias”. The reasonable suspicion of bias” test loos mainly to outward appearance,
and ‘the real likelihood” test focus on the court’s own evaluation of possibilities;
but in practice the test have much in common with one another and in the vast
majority of cases they will lead to some result. In this area of bias, the real
question is not whether a person was biased. It is difficult to prove the state of
mind of a person. Therefore, what the courts see is whether there is reasonable
ground for believing that the deciding officer was likely to have been biased.

No uniform cut and dried formula can be laid down to determine real
likelihood of bias. Each is to be determined on the basis of its facts and
circumstances. In Charanjit Singh v. Harinder Sharma, the court held that
there is a real likelihood of bias when in a small place there is relationship
between selectees and member of the selection committee. A few cases in
this connection may be noted by way of illustration. 14X

Manak lal v. Prem Chand 15 X

14 Supra note 3 pg.

15AIR 1957 SC 425

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In order to decide a complaint for professional misconduct filled by Dr. Prem

Chand against Manak Lal, an advocate of Rajasthan High Court, the High Court
appointed a tribunal consisting of a senior advocate, once Advocate-General of
Rajasthan, as Chairman. The decision of tribunal was challenged on the ground
of personal bias arising from the fact that the Chairman had represented Dr.
Prem Chand in an earlier case. The Supreme Court has to quash the action
holding that the chairman had no personal contact with his client and did not
remember that he appeared on his behalf, and that, therefore, there seemed to
be no ‘real likelihood of bias’. However, the high professional standards led the
court to quash the action in the final analysis on the ground that the justice
should not only be done but must appear to have been done.

State of U.P. v. Mohd. Nooh 16 X

In this case, a Dy. S.P. was appointed to conduct a departmental enquiry

against a police constable. In order to contradict the testimony of a witness,
the presiding officer offer himself as witness. The Supreme Court quashed the
administrative on the ground that when presiding officer himself becomes a
witness, there is certainly a ‘real likelihood of bias’ against the constable. 17X

16AIR 1958 SC 86

17 Supra note 3 pg.

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18
A.K. Kraipak v. Union of India X

In this case, Naquishband, who was the acting Chief Conservator of

Forests, was a member of the Selection Board and was also a candidate
for selection to All India cadre of the Forest Service. Though he did not take
part in the deliberations of the Board when his name was considered and
approved, the SC held that `there was a real likelihood of a bias for the
mere presence of the candidate on the Selection Board may adversely
influence the judgement of the other members'

SC also made the following observations: -

The dividing line between an administrative power and quasi-judicial

power

is quite thin and is being gradually obliterated. Whether a power is

Administrative or quasi-judicial, one has to look into -

a) the nature of power conferred

b) the person on whom it is conferred

c) the framework of the law conferring that power

d) the manner in which that power is expected to be exercised.

The principles of natural justice also apply to administrative proceedings,

The concept of natural justice is to prevent miscarriage of justice and it

entails -

No one shall be a judge of his own cause.

No decision shall be given against a party without affording him a

reasonable hearing.
18(1969) 2 SCC 262 : AIR
1970 SC 150
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(iii) The quasi-judicial enquiries should be held in good faith and not
arbitrarily or unreasonably.

J. Mohapatra and Co. v. State of Orissa 19 X

In this case, the State of Orissa has constituted an Assessment Committee in

order to recommend and select books of various Authors and publishers for
various school subjects. Some of the persons whose books were in the selection
list were members of Assessment Committee. The meeting of the Committee
was held. In this meeting when the books were being assessed an individual
member would withdraw when his book was taken for consideration. However,
that member participated in deliberations when books of other member were
considered. The result was that the books of other members were considered.
The result was that the books of members of Assessment Committee were
accorded approval. The action of the Government was challenged on the ground
of bias. Quashing the action, the Supreme Court held that when some members
whose books were in the list for selection were members of Assessment
Committee, there were every likelihood of bias, Actual bias is not material, but
the possibility of such bias in all such cases. Therefore, the Court concluded that
withdrawal of persons is not sufficient because the element of quid pro quo with
other members cannot be eliminated. It may be pointed out that the doctrine of
necessity does not apply in this case. 20X

PECUNIARY BIAS

19 AIR 1984 SC 1572

20 Supra note 3 pg.

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A direct pecuniary interest, howsoever small or insignificant, disqualifies a

person from acting as decision maker in a dispute. In classic English case, a
public limited company filed a case against a land owner in a matter largely
involving company filed a case against a land owner in a matter largely
involving the interests of the company. The LORD CHANCELLOR who was a
share-holder in the company heared the case and give to the company the
relief sought by it. His decision was quashed by the House of Lords because
of the pecuniary interest of the LORD CHANCELLOR in the company. 21X

In India also, the principle is followed that “any direct pecuniary interest,
however small, in the subject-matter of inquiry will disqualify an adjudicator.
22
X

Judicial approach is unanimous and decisive on the point that any financial
interest, howsoever it may be, would vitiate administrative action. The
disqualification will not be avoided by non-participation of the biased member
in the proceedings if he was present when the decision was reached. 23X

In Bonham’s Case 24, Dr. Bonham, a Doctor of Cambridge university was fined by
the College of physicians for practicing in the city of London without the license of
college. The Statute under which College acted provides that the fine should go half
to the College. Adjudicating upon the claim, Coke, C.J. disallowed the claim X

21 Supra note 5 pg.

22GullapaliNageshwaa Rao v. State of Aandhra Pradesh, AIR 1959 SC 1376; Minral

Development Ltd. v. State of Bihar, AIR 1960 SC 468.

23 R. v. Hendon Rural District Council ex. p. Chorley, (1933) 2 KB 696

24 (1610) 8 Co. Rep. 113 (b)

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as the College had a financial interest in its own judgement and was judge
in its own case. 25X

Any financial interest howsoever small it may be is bound to vitiate the

administrative action. The judicial opinion is unanimous as to it. In R v. Hendon
Rural District Council 26, the court in England quashed the decision of the
planning commission, where one of the members was an estate agent who was
acting for the applicant to whom permission was granted.X

In Jeejeebhoy v. Assistant Collector, Thana 27 the CJ reconstituted the bench,

when it was found that one of the members of the bench was the member of the
cooperative society for which the land has been acquired. The Madras High Court
also quashed the decision of the Collector who in his capacity as the chairman of the
Regional Transport Authority had granted a permit in favour of a cooperative society
of which he was also Chairman. 28Similarly, the Andhra Pradesh high court also
quashed the order of the Regional Transport Authority where one of its member has
issued a permit in its own favour. 29 The Supreme Court quashed the decision of the
Textbooks’ Selection committee because some of its members were also authors of
its books, which were considered for selection. 30X

25 MP Jain & SN Jain “principles of Administrative Law” 7th Edition 2011pg. 26Supra note 8.

27AIR 1965 SC 1096

28Vishakapatnam Coop. Motor Transport Ltd. v. G. Bangaru Raju, AIR 1953 Mad. 709.

29AIR 1957 AP 739

30 See Supra 10
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However, the rule against bias will not be applied where the judge, though having
a financial interest, has no direct financial interest in the outcome of the case.
This is evident from the Court of Appeal decision in R v. Mulvihill 31, where the
court refused to set aside the conviction of an accused on a charge of robbery in
a bank on the ground that the trial judge had shares in that bank. In such cases
unless there is a likelihood of bias administrative action will not be quashed.X

A pecuniary or proprietary interest in the subject matter of the dispute ipso

facto disqualifies the adjudicator and it is not necessary to prove that there
was a real likelihood of bias in the circumstances of the case. 32X

SUBJECT MATTER BIAS

It includes situations where the deciding officer is directly or indirectly in the

subject matter of the case. Here again mere involvement would not vitiate
the administrative action unless there is a real likelihood of bias. In R v.
Deal Justices exparte Curling 33the magistrate was not declared
disqualified to try a case of cruelty to an animal on the ground that he was
a member of the royal society for the prevention of cruelty to animals as
this did not prove a real likelihood of bias. 34X
31(1990) 1 All ER 436. 32 Supra note 5 pg. 33(1881) 45 LT 439. 34 Supra note 5 pg.
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The Supreme Court in cases like Murlidhar V. Kadam Singh 35 and Sub –
Committee of JudicialAccountability v. Union of India 36, followed the
same line. Nevertheless, in GullaPalli Nageshwara Rao v.APSRTC 37 the
Supreme Court quashed the decision of A.P. government nationalizing road
transport on the ground that the secretary of the transport department who
was given a hearing was interested in the subject matter. It may be mentioned
that in USA and England, predisposition in favor of a policy in the public
interest is not considered as legal bias vitiating administrative actions.X

DEPARTMENTAL BIAS

The problem of departmental bias is something, which is inherent in the

administrative process, and if it is not effectively checked, it may negate the
very concept of fairness in the administrative proceeding.

In Gullapalli Nageswara Rao v. APSRTC 38the 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 X

35AIR 1954 MP 111.

36(1991) 4 SCC 699.

37AIR 1959 SC 308

38Id
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order on the ground that, under the circumstances, the Secretary was
biased, and hence no fair hearing could be expected.

Thereafter, the act was amended and the function of hearing the objection was
given over to the minister concerned. The decision of the Government was again
challenged by G.Nageshwara Rao on the ground of departmental bias because
the minister head of the department concerned which initiated the scheme and
was also ultimately responsible for its execution. However, on this occasion the
Supreme Court the challenge on the ground that the minister was not a part of
the department in the same manner as the secretary was. 39The reasoning of the
Court is notvery convenient perhaps because, observed earlier departmental
bias is something, which is inherent in the administrative process. In the U.S.A
and in England the problem of departmental bias has been solved, the sum
extent, with the institution of hearing officers and inspectors.X

The problem of departmental bias arises in different context- when the

functions of judge and prosecutor are combined in the same department. It
is not uncommon to find that the same department which initiates a matter
also decides it, therefore, at times, departmental fraternity and loyalty
militates against the concept of fair hearing.

This problem came up before the Supreme Court in Hari v. Dy. Commr. of Police
40
. In this case, an externment 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 X

39GullapaliNageshwar Rao v. A.P. State Road Transport Corporations, AIR 1959 SC 1376.

40AIR 1956 SC 559

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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.

The decision of the Court may be correct in the idle perspective but it may
not always prove wise in practice. It may be suggested that the technique
of internal separation which is being followed in America and England can
be profitably used in India if a certain amount of confidence is to be
developed in the minds of the People in administrative decision making. 41X

In Krishna Bus Service v. State of Haryana 42, the Supreme Court quashed
the notification of the government, which had conferred powers of a Deputy
Superintendent of Police on the General Manager, Haryana Roadways in
matters of inspection of vehicles on the ground of departmental bias.X

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.

41 Supra note 5 pg.

42(1985) 3 SCC 711.

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PRE CONCEIVED NOTION OF BIAS

Bias arising out of preconceived notions is a very delicate problem of

administrative law. On the one hand, no judge as a human being is expected to
sit as a blank sheet of paper, on the other hand, preconceived notions would
vitiate a fair trial. A classic case bringing this problem to the forefront is Franklin
v. Minister of Town and Country Planning 43 known as Stevenage case. In this
case the appellant challenged the Stevenage New Town Designation order, 1946
on the ground that no fair hearing was given because the minister had
entertained bias in his determination which was clear from his speech at
Stevenage when he said I want to carry out a daring exercise in town planning
(jeers, catcalls, boos). It is no good your jeering! It is going to be done. Though
the court did not accept the challenge on the technical grounds that the minister
in confirming the report was not performing any quasi-judicial function, but the
problem still remains that the bias arising from strong convictions as to policy
may operate as a more serious threat to fair action than any other single factor.X

This point came up for consideration before the Supreme Court in T.

GovindarajaMudaliarv.State of T.N 44,the government decided in principle to
nationalize road transport and appointed a committee to frame the scheme. The
Home Secretary was made a member of this committee. Later on, the scheme of
nationalization was finalized, published and objections were heard by the Home
Secretary. It was contended that the hearing was vitiated by the rule against bias
because the Secretary had already made up his mind on the question of
nationalization, as he was a member of the committee, which took this policyX

431948 AC 87 : (1947) 2 All ER 289 (HL).

44AIR 1973 SC 974

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decision. The court rejected the challenge on the ground that the Secretary as
a member of the committee did not finally determine any issue as to foreclose
his mind. He simply helped the government in framing the scheme. Similarly,
in Kondala Rao v. APSRTC 45the court did not quash the nationalization of
the road transport order of the Minister who had heard the objections of
private operators on the ground that the same Minister had presided over a
meeting only a few days earlier in which nationalization was favored. The
court rejected the contention on the ground that the decision of the committee
was not final and irrevocable but merely a policy decision.X

The problem of bias arising from preconceived notions may have to be

disposed of as an inherent limitation of the administrative process. It is
useless to accuse a public officer of bias merely because he is predisposed
in favor of some policy in the public interest.

BIAS ON ACCOUNT OF OBSTINACY

The word Obstinacy implies unreasonable and unwavering persistence and the
deciding officer would not take ‘no’ for an answer. This new category of bias was
discovered in a situation where a judge of the Calcutta High Court upheld his own
judgment while sitting in appeal against his own judgment. Of course, a direct
violation of the rule that no judge can sit in appeal against his own judgment is not
possible, therefore, this rule can only be violated indirectly. In this case in a fresh
45AIR 1961 SC
82
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writ petition the judge validated his own order in an earlier writ petition
which had been overruled by the Division Bench. What applies to judicial
process can be applied to administrative process as well.

Doctrine of
Necessity_________________________________________

__

Bias would not disqualify an officer from taking an action if no other person is
competent to act in his place. This exception is based on the doctrine which it
would otherwise not countenance on the touchstone of judicial propriety. The
doctrine of necessity makes it imperative for the authority to decide and
considerations of judicial propriety must yield. It can be invoked in cases of
bias where there is no authority to decide the issue. If the doctrine of
necessity is not allowed full play in certain unavoidable situations, it would
impede the course of justice itself and the defaulting party would benefit from
it. If the choice is between either to allow a biased person to act or to stifle the
action altogether, the choice must fall in favor of the former as it is the only
way to promote decision-making. Therefore, the Court held that bias would not
vitiate the action of the Speaker in impeachment proceedings and the action
of the Chief Election Commissioner in election matters.

In the USA, the disqualification arising out of bias arises from the due process
clause of the American Constitution. Therefore, an administrative action can be
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challenged in India and England. Recent trends in the judicial behavior of

the American Supreme Court also indicate that where the administrative
authority prejudged the issue, the action will be vitiated.

However, the term ‘bias’ must be confined to its proper place. If bias arising out of
preconceived notions means the total absence of preconceptions in the mind of the
judge, then no one has ever had a fair trial, and no one ever will. Therefore, unless
the strength of the preconceived notions is such that it has the capacity of
foreclosing the mind of the judge, administrative action would not be vitiated.

The element of bias causes a serious problem in the contempt of court cases.
In Vinay Chandra Mishra, In re 46, the Court held that in case of facie curiae
contempt (contempt in the face of the Court) the rule against bias does not
apply and the judge before whom contempt is committed can punish the
contemner on the spot. However, in order to bring an element of fairness in
contempt cases the Allahabad High Court has made a rule that the judge will
place the matter before the Chief Justice who will allot it to any judge for
hearing because it is contempt not of the judge but of the Court. 47X

46(1995) 2 SCC 584.

47 Supra note 27 at pg.

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CONCLUSION___________________________________
_________________

While deriving the conclusion I would like to sum up my topic with further
mention judgement. In Rt. J. P. Linhan Inc. 48a very illuminating
Judgement was given by J. Jerom Frank, a brief excerpt from which
reads: “Democracy must, reads: “Democracy must, indeed, fail unless our
Courts try cases fairly, and there can be no fair trial before a Judge lacking
in impartiality and disinterestedness. If, however, ‘bias’ and ‘partiality’ be
define to mean the total absence of preconceptions in the mind of Judge,
then no one has ever had a fair trial and no one ever will.’ 49X

So, it is important that there should be no bias or encouragement to bias by

any judicial, quasi-judicial and administrative body but certain
PRECONCEPTIONS in the mind of judge are essential.

48(138 F 20, 650)

49 Supra note 50 pg.
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