The Rule Against Bias

In one line

The person who decides must not have an interest in the outcome, and must not appear to have one.

In the words a student can write in an exam: the rule against bias, expressed in the maxim nemo judex in causa sua, requires that no person shall be a judge in his own cause, and that a decision be taken by an authority free from any interest, personal, pecuniary or otherwise, in the subject matter or in the parties. It is not necessary to prove that the decision was in fact influenced; it is enough that there was a real likelihood, or in some formulations a reasonable suspicion, of bias, because justice must not only be done but must manifestly be seen to be done.

Why appearance is enough

This is the part students find odd, so it is worth meeting head on. If bias had to be proved to have actually operated, the rule would be almost useless: what happened in the mind of a decision maker cannot be shown, and he will always say he was not influenced.

The rule therefore looks at the position from outside. If a reasonable person, knowing the facts, would think that the decision maker might not bring an impartial mind to bear, the decision goes, whether or not he was in fact impartial. The classical English formulation is that justice should not only be done but should manifestly and undoubtedly be seen to be done.

The consequence, which is worth stating in an answer, is that a finding of bias is not a finding of dishonesty. A judge who owns a few shares in a company before him is not accused of corruption. He is simply disqualified.

The kinds of bias

1. Pecuniary bias

Any financial interest in the outcome, however small, disqualifies. There is no de minimis rule, meaning there is no minimum below which the interest is ignored. A shareholding in a company that is a party, a fee that depends on the outcome, or a share in a fine imposed will each disqualify.

This is the strictest of the categories, and the reason is practical: money is measurable, so no inquiry into degree is needed.

2. Personal bias

Arising from a relationship between the decision maker and a party: kinship, friendship, hostility, a business relationship, a professional connection, or the fact that the decision maker is himself a rival for what is being decided.

Personal bias does not disqualify automatically. The question is whether the relationship is such that there is a real likelihood of bias, and that is a question of degree on the facts.

Facts. A.K. Kraipak v. Union of India, AIR 1970 SC 150, concerned selection to the Indian Forest Service from officers of the Jammu and Kashmir forest department. A Special Selection Board was constituted under the Indian Forest Service (Initial Recruitment) Regulations 1966. One member of the Board was the Acting Chief Conservator of Forests, who held that post by superseding another Conservator whose appeal against the supersession was pending before the State Government, and who was himself a candidate for selection. He withdrew when his own name was considered, but sat and participated when the claims of his rivals were considered and when the list of selected candidates was prepared in order of preference. His name came top of the list; three Conservators who were his rivals, including the officer he had superseded, were omitted. The list went to the Home Ministry and then to the Union Public Service Commission, which examined the records afresh and made its recommendations, and the Government of India notified it. The officers left out petitioned under Article 32.