Doctrine of Judicial Bias

I. JUDICIAL BIAS

There may be a case where allegations may be made against a Judge of having bias/prejudice at any stage of the proceedings or after the proceedings are over. There may be some substance in it or it may be made for ulterior purpose or in a pending case to avoid the Bench if a party apprehends that judgment may be delivered against him. Suspicion or bias disables an official from acting as an adjudicator. Further, if such allegation is made without any substance, it would be disastrous to the system as a whole, for the reason, that it casts doubt upon a Judge who has no personal interest in the outcome of the controversy.

In respect of judicial bias, the statement made by Frank J. of the United States is worth quoting:

If, however, ‘bias’ and ‘partiality’ be defined to mean the total absence of preconceptions in the mind of the Judge, then no one has ever had a fair trial and no one will. The human mind, even at infancy, is no blank piece of paper. We are born with predispositions ”. Much harm is done by the myth that, merely by”. taking the oath of office as a judge, a man ceases to be human and strips himself of all predilections, becomes a passionless thinking machine.

(In re: Linahan 138 F. 2nd 650 (1943))

(See also: State of West Bengal and Ors. v. Shivananda Pathak and Ors., AIR 1998 SC 2050).

To recall the words of Mr. Justice Frankfurter in Public Utilities Commission of the District of Columbia v. Franklin S. Pollak 343 US 451 (1952) 466: The Judicial process demands that a judge moves within the framework of relevant legal rules and the covenanted modes of thought for ascertaining them. He must think dispassionately and submerge private feeling on every aspect of a case. There is a good deal of shallow talk that the judicial robe does not change the man within it. It does. The fact is that, on the whole, judges do lay aside private views in discharging their judicial functions. This is achieved through training, professional habits, self-discipline and that fortunate alchemy by which men are loyal to the obligation with which they are entrusted.

 In Bhajan Lal, Chief Minister, Haryana v. Jindal Strips Ltd. and Ors., (1994) 6 SCC 19, this Court observed that there may be some consternation and apprehension in the mind of a party and undoubtedly, he has a right to have fair trial, as guaranteed by the Constitution. The apprehension of bias must be reasonable, i.e. which a reasonable person can entertain. Even in that case, he has no right to ask for a change of Bench, for the reason that such an apprehension may be inadequate and he cannot be permitted to have the Bench of his choice. The Court held as under:

Bias is the second limb of natural justice. Prima facie no one should be a judge in what is to be regarded as ‘sua causa’, whether or not he is named as a party. The decision-maker should have no interest by way of gain or detriment in the outcome of a proceeding. Interest may take many forms. It may be direct, it may be indirect, it may arise from a personal relationship or from a relationship with the subject-matter, from a close relationship or from a tenuous one.

 The principle in these cases is derived from the legal maxim nemo debet esse judex in causa propria sua. It applies only when the interest attributed is such as to render the case his own cause. This principle is required to be observed by all judicial and quasi-judicial authorities as non-observance thereof, is treated as a violation of the principles of natural justice. (Vide: Rameshwar Bhartia v. The State of Assam, AIR 1952 SC 405; Mineral Development Ltd. v. The State of Bihar and Anr., AIR 1960 SC 468; Meenglas Tea Estate v. The Workmen, AIR 1963 SC 1719; and The Secretary to the Government, Transport Department, Madras v. Munuswamy Mudaliar and Ors., AIR 1988 SC 2232).

The failure to adhere to this principle creates an apprehension of bias on the part of the Judge. The question is not whether the Judge is actually biased or, in fact, has really not decided the matter impartially, but whether the circumstances are such as to create a reasonable apprehension in the mind of others that there is a likelihood of bias affecting the decision. (Vide: A.U. Kureshi v. High Court of Gujarat and Anr., (2009) 11 SCC 84; and Mohd. Yunus Khan v. State of U.P. and Ors., (2010) 10 SCC 539).

 In Manak Lal, Advocate v. Dr. Prem Chand Singhvi and Ors., AIR 1957 SC 425, this Court while dealing with the issue of bias held as under:

Actual proof of prejudice in such cases may make the Appellant’s case stronger but such proof is not necessary’. What is relevant is the reasonableness of the apprehension in that regard in the mind of the Appellant.

 The test of real likelihood of bias is whether a reasonable person, in possession of relevant information, would have thought that bias was likely and whether the adjudicator was likely to be disposed to decide the matter only in a particular way. Public policy requires that there should be no doubt about the purity of the adjudication process/administration of justice. The Court has to proceed observing the minimal requirements of natural justice, i.e., the Judge has to act fairly and without bias and in good faith. A judgment which is the result of bias or want of impartiality, is a nullity and the trial ‘coram non judice’. Therefore, the consequential order, if any, is liable to be quashed. (Vide: Vassiliades v. Vassiliades AIR 1945 PC 38; S. Parthasarathi v. State of Andhra Pradesh, AIR 1973 SC 2701; and Ranjit Thakur v. Union of India and Ors., AIR 1987 SC 2386).

In Rupa Ashok Hurra v. Ashok Hurra and Anr., (2002) 4 SCC 388, this Court observed that public confidence in the judiciary is said to be the basic criterion of judging the justice delivery system. If any act or action, even if it is a passive one, erodes or is even likely to erode the ethics of judiciary, the matter needs a further look. In the event, there is any affectation of such an administration of justice either by way of infraction of natural justice or an order being passed wholly without jurisdiction or affectation of public confidence as regards the doctrine of integrity in the justice delivery system, technicality ought not to outweigh the course of justice ‘ the same being the true effect of the doctrine of ex debito justitiae. It is enough if there is a ground of an appearance of bias.

While deciding the said case, this Court placed reliance upon the judgment of the House of Lords in Ex Parte Pinochet Ugarte (No. 2) 1999 All ER 577, in which the House of Lords on 25.11.1998, restored warrant of arrest of Senator Pinochet who was the Head of the State of Chile and was to stand trial in Spain for some alleged offences. It came to be known later that one of the Law Lords (Lord Hoffmann), who heard the case, had links with Amnesty International (AI) which had become a party to the case. This was not disclosed by him at the time of the hearing of the case by the House. Pinochet Ugarte, on coming to know of that fact, sought reconsideration of the said judgment of the House of Lords on the ground of appearance of bias and not actual bias. On the principle of disqualification of a Judge to hear a matter on the ground of appearance of bias, it was pointed out:

An appeal to the House of Lords will only be reopened where a party though no fault of its own, has been subjected to an unfair procedure. A decision of the House of Lords will not be varied or rescinded merely because it is subsequently thought to be wrong.

 In Locabail (UK) Ltd. v. Bayfield Properties Ltd. and Anr. (2000) 1 All ER 65, the House of Lords considered the issue of disqualification of a Judge on the ground of bias and held that in applying the real danger or possibility of bias test, it is often appropriate to inquire whether the Judge knew of the matter in question. To that end, a reviewing court may receive a written statement from the Judge. A Judge must recuse himself from a case before any objection is made or if the circumstances give rise to automatic disqualification or he feels personally embarrassed in hearing the case. If, in any other case, the Judge becomes aware of any matter which can arguably be said to give rise to a real danger of bias, it is generally desirable that disclosure should be made to the parties in advance of the hearing. Where objection is then made, it will be as wrong for the Judge to yield to a tenuous or frivolous objection as it will be to ignore an objection of substance. However, if there is real ground for doubt, that doubt must be resolved in favour of recusal. Where, following appropriate disclosure by the Judge, a party raises no objection to the Judge hearing or continuing to hear a case, that party cannot subsequently complain that the matter disclosed gives rise to a real danger of bias.

 In Justice P.D. Dinakaran v. Hon’ble Judges Inquiry Committee (2011) 8 SCC 380, this Court has held that in India the courts have held that, to disqualify a person as a Judge, the test of real likelihood of bias, i.e., real danger is to be applied, considering whether a fair minded and informed person, apprised of all the facts, would have a serious apprehension of bias. In other words, the courts give effect to the maxim that ‘justice must not only be done but be seen to be done’, by examining not actual bias but real possibility of bias based on facts and materials.

The Court further held:

The first requirement of natural justice is that the Judge should be impartial and neutral and must be free from bias. He is supposed to be indifferent to the parties to the controversy. He cannot act as Judge of a cause in which he himself has some interest either pecuniary or otherwise as it affords the strongest proof against neutrality. He must be in a position to act judicially and to decide the matter objectively. A Judge must be of sterner stuff. His mental equipoise must always remain firm and undetected. He should not allow his personal prejudice to go into the decision- making. The object is not merely that the scales be held even; it is also that they may not appear to be inclined. If the Judge is subject to bias in favour of or against either party to the dispute or is in a position that a bias can be assumed, he is disqualified to act as a Judge, and the proceedings will be vitiated. This rule applies to the judicial and administrative authorities required to act judicially or quasi-judicially.’

 Thus, it is evident that the allegations of judicial bias are required to be scrutinised taking into consideration the factual matrix of the case in hand. The court must bear in mind that a mere ground of appearance of bias and not actual bias is enough to vitiate the judgment/order. Actual proof of prejudice in such a case may make the case of the party concerned stronger, but such a proof is not required. In fact, what is relevant is the reasonableness of the apprehension in that regard in the mind of the party. However, once such an apprehension exists, the trial/judgment/order etc. stands vitiated for want of impartiality. Such judgment/order is a nullity and the trial ‘coram non-judice.

Clarification “a person, trying a cause, must not only act fairly but must be able to act above suspicion of unfairness and bias”.

160578 : (2011) 13 SCALE 352

(SUPREME COURT OF INDIA)

Narinder Singh Arora Appellant
Versus
State (Govt. of NCT of Delhi) and Others Respondent

(Before : H.L. Dattu and Chandramauli Kr. Prasad, JJ.)

Criminal Appeal No. 2184 of 2011 (Arising out of S.L.P. (Crl.) No. 2156 of 2011) : Decided On: 05-12-2011

Administration of Justice—Recusance of case—A person who tries a cause should be able to deal with the matter placed before him objectively, fairly and impartially—No one can act in a judicial capacity if his previous conduct gives ground for believing that he cannot act with an open mind or impartially—ASJ, owing to inadvertence regarding his earlier recusal, dismissed revision petition by impugned Judgment—Impugned judgment, passed by ASJ subsequent to his recusal at trial stage for personal reasons, is against principle of natural justice and fair trial—Impugned judgment set aside—Matter remanded to High Court for fresh disposal of revision petition.

Counsel for the Parties:

Kamini Jaiswal, Adv.

P.P. Malhotra, ASG, Sadhna Sandhu, Adv. for Anil Katiyar, Adv., Dhruv Tamat, Adv. for Binu Tamat, Adv.

judgment

H.L. Dattu, J—

Leave granted.

1. The present appeal, by way of special leave, is directed against the judgment and Order dated 01.09.2010 of the High Court of Delhi in Criminal Revision No. 555 of 2003 whereby the High Court has dismissed the revision petition preferred by the Appellant against the judgment and Order dated 22.03.2003 passed by Learned Additional Sessions Judge in Sessions Case No. 104 of 2001.

2. Since we intend to remand the matter to the High Court for fresh disposal, it is not necessary to go into the factual matrix. Suffice to state that the Appellant had filed a complaint against the Respondents dated 24.11.1988 which was registered as FIR No. 393 of 1988 at P.S.- Srinivaspuri, New Delhi. Subsequently, the charges were framed against the Respondents under Sections 498A, 304B read with Section 34 and Section 302 of the Indian Penal Code by Shri. Prithvi Raj, learned Additional District & Sessions Judge dated 15.05.1995. Thereafter, the case was listed before Shri. S.N. Dhingra, Additional Sessions Judge for the trial, however, the learned Judge had recused from hearing the matter for personal reasons vide Order dated 25.09.2000. The said Order is extracted below:

25-09-2000

Present: Spl. P.P. for the State

All the accused on bail.

For personal reason I do not want to try this case. The case be sent to Ld. Sessions Judge, Delhi for marking it to some other court.

Put up on 11-10-2000 to find out to which court case has been allocated.

A.S.J. New Delhi

25-09-2000

3. Accordingly, the case was withdrawn from the Court of Shri. S.N. Dhingra, Additional Sessions Judge and transferred to the Court of Shri. S.M. Chopra, Additional Sessions Judge vide the Order dated 29.09.2000 of the Sessions Judge. Eventually the accused Respondents were tried and acquitted vide judgment and Order dated 22.03.2003 passed by Ms. Manju Goel, Additional Sessions Judge. Being aggrieved by the judgment and Order, the Appellant preferred a revision petition before the High Court. The same was dismissed vide impugned final judgment and Order dated 01.09.2010 passed by learned Judge, Shri. Justice S.N. Dhingra.

4. It is apparent that the fact of earlier recusal of the case at the trial by learned Shri Justice S.N. Dhingra himself, was not brought to his notice in the revision petition before the High Court by either of the parties to the case. Therefore, Shri Justice S.N. Dhingra, owing to inadvertence regarding his earlier recusal, has dismissed the revision petition by the impugned judgment. In our opinion, the impugned judgment, passed by Shri Justice S.N. Dhigra subsequent to his recusal at trial stage for personal reasons, is against the principle of natural justice and fair trial.

5. It is well settled law that a person who tries a cause should be able to deal with the matter placed before him objectively, fairly and impartially. No one can act in a judicial capacity if his previous conduct gives ground for believing that he cannot act with an open mind or impartially. The broad principle evolved by this Court is that a person, trying a cause, must not only act fairly but must be able to act above suspicion of unfairness and bias. In the case of Manak Lal v. Dr. Prem Chand Singhvi, AIR 1957 SC 425, it was observed:

5. …every member of a tribunal that (sits to) try issues in judicial or quasi-judicial proceedings must be able to act judicially; and it is of the essence of judicial decisions and judicial administration 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.

6. In the case of A.K. Kraipak v. Union of India, (1969) 2 SCC 262, this Court, while discussing the rule of bias, has observed:

15. …At every stage of his participation in the deliberations of the Selection Board there was a conflict between his interest and duty. Under those circumstances it is difficult to believe that he could have been impartial. The real question is not whether he was biased. It is difficult to prove the state of mind of a person. Therefore what we have to see is whether there is reasonable ground for believing that he was likely to have been biased. …In deciding the question of bias we have to take into consideration human probabilities and ordinary course of human conduct.

7. In the case of S. Parthasarathi v. State of A.P., (1974) 3 SCC 459, this Court has applied the “real likelihood” test and restored the decree of the trial court which invalidated compulsory retirement of the Appellant by way of punishment. This Court observed:

16. …We think that the reviewing authority must make a determination on the basis of the whole evidence before it, whether a reasonable man would in the circumstances infer that there is real likelihood of bias. The court must look at the impression which other people have. This follows from the principle that justice must not only be done but seen to be done. If right-minded persons would think that there is real likelihood of bias on the part of an inquiring officer, he must not conduct the enquiry; nevertheless, there must be a real likelihood of bias. Surmise or conjecture would not be enough. There must exist circumstances from which reasonable men would think it probable or likely that the inquiring officer will be prejudiced against the delinquent. The court will not inquire whether he was really prejudiced. If a reasonable man would think on the basis of the existing circumstances that he is likely to be prejudiced, that is sufficient to quash the decision….

8. In the case of G. Sarana (Dr.) v. University of Lucknow, (1976) 3 SCC 585, this Court had referred to the judgments of A.K. Kraipak v. Union of India (Supra) and S. Parthasarathi v. State of A.P. (Supra) and observed:

11. …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.

9. In the case of Ranjit Thakur v. Union of India, (1987) 4 SCC 611, this Court has held:

15. …The test of real likelihood of bias is whether a reasonable person, in possession of relevant information, would have thought that bias was likely and whether Respondent 4 was likely to be disposed to decide the matter only in a particular way.

16. It is the essence of a judgment that it is made after due observance of the judicial process; that the court or tribunal passing it observes, at least the minimal requirements of natural justice; is composed of impartial persons acting fairly and without bias and in good faith. A judgment which is the result of bias or want of impartiality is a nullity and the trial ‘coram non judice’.

17. As to the tests of the likelihood of bias what is relevant is the reasonableness of the apprehension in that regard in the mind of the party. The proper approach for the Judge is not to look at his own mind and ask himself, however, honestly, ‘Am I biased’; but to look at the mind of the party before him.

10. In the case of Secy. to Govt., Transport Deptt. v. Munuswamy Mudaliar, (1988) Suppl. SCC 651, this Court considered the question as to whether a party to the arbitration agreement could seek change of an agreed arbitrator on the ground that being an employee of the State Government, the arbitrator will not be able to decide the dispute without bias. While reversing the judgment of the High Court, which had confirmed the order of the learned Judge, City Civil Court directing the appointment of another person as an arbitrator, this Court observed:

12. Reasonable apprehension of bias in the mind of a reasonable man can be a ground for removal of the arbitrator. A predisposition to decide for or against one party, without proper regard to the true merits of the dispute is bias. There must be reasonable apprehension of that predisposition. The reasonable apprehension must be based on cogent materials. See the observations of Mustill and Boyd, Commercial Arbitration, 1982 Edn., 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)

11. In the case of R. v. Camborne JJ, ex p Pearce (1955) 1 QB 41, the Divisional Court of the Queen’s Bench Division, after reviewing a large number of authorities including R. v. Sussex JJ, ex p McCarthy ( Supra) 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 quasi-judicial capacity upon the ground of interest (other than pecuniary or proprietary) in the subject-matter of the proceeding, a real likelihood of bias must be shown. This Court is further of opinion that a real likelihood of bias must be made to appear not only from the materials in fact ascertained by the party complaining, but from such further facts as he might readily have ascertained and easily verified in the course of his inquiries.

12. In the case of R. v. Gough (1993) 2 All ER 724 (HL), the House of Lords while applying the “real likelihood” test, by using the expression “real danger”, has observed thus:

…In my opinion, if, in the circumstances of the case (as ascertained by the court), it appears that there was a real likelihood, in the sense of a real possibility, of bias on the part of a justice or other member of an inferior tribunal, 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.

13. In view of the aforesaid facts and reasons, we set aside the impugned judgment and Order dated 01.09.2010 of the High Court in Criminal Revision No. 555 of 2003 and remand the matter to the High Court for fresh disposal of the revision petition filed by the Appellant in accordance with law. We clarify that we have not expressed any opinion on the merits of the case. Ordered accordingly.