The Rule Against Bias

Held. The rules of natural justice operate in areas not covered by any validly made law and supplement rather than supplant it, and there is no reason why they should not apply to administrative proceedings as well as quasi-judicial ones. The rule that enquiries must be held in good faith and without bias is part of natural justice. On the facts there was a conflict between the member's interest and his duty and he was a judge in his own cause; taking human probabilities and the ordinary course of human conduct into account, there was reasonable ground for believing that he was likely to have been biased. Although he did not sit when his own name was considered, his membership of the Board and his participation when his rivals' claims were considered and when the list was prepared must have had an impact, because in group discussions each member is bound to influence the others in a subtle manner, without their being aware of such influence. The selection could not be regarded as having been made fairly and justly.

Why it matters. It is the leading Indian case on personal bias, and three points in it are examinable. First, withdrawing from part of the process is not enough if you sit for the rest. Second, the Court did not require proof of actual influence; it reasoned from human probabilities. Third, affidavits from the other members saying they were not influenced did not save the selection, because the influence is subtle and the members would not be aware of it.

3. Subject matter bias

Where the decision maker has an interest in the subject rather than in the parties: he is connected with the institution whose conduct is in question, or has been involved in the events leading to the dispute, or has some stake in the general question.

Mere general interest is not enough; a departmental officer does not become disqualified simply because the department has a view. What disqualifies is a direct connection with the particular matter.

4. Departmental or institutional bias

This is the structural problem of administrative adjudication and it is worth a paragraph of its own because it is what distinguishes administrative law from ordinary procedure.

In a great deal of administrative decision making the same department investigates, prosecutes and decides. A Commissioner orders an inspection, receives the inspector's report, and then decides whether to cancel the licence. On a strict application of the rule against bias, that arrangement is objectionable.

The law's answer is that where the statute itself creates the arrangement, it cannot be attacked as bias, because natural justice cannot be used to defeat the scheme the legislature has enacted. But two safeguards remain: the same individual should not perform inconsistent roles, so the officer who investigated should not be the one who decides; and the person affected must still get the substance of a hearing.

5. Policy bias, and the necessity exception

A decision maker who has publicly committed himself to a view on the very question is disqualified. But a prior general policy position is not bias: a minister who has announced a policy is expected to have one, and if that disqualified him no decision could ever be taken.

The doctrine of necessity is the recognised exception to the whole rule. Where the person alleged to be biased is the only authority competent to decide, and there is no lawful alternative, he may decide despite the interest, because otherwise the matter could never be decided at all. Necessity does not licence bad faith; it merely prevents the rule against bias defeating the administration of justice.

The tests

Two formulations appear in the cases, and a student should be able to state both and say how they relate.

In practice the two rarely produce different results, because both are applied from the standpoint of the reasonable and informed observer rather than that of the litigant. Kraipak is usually read as applying the real likelihood test, reasoning from human probabilities and the ordinary course of human conduct.

A worked example

The Municipal Corporation invites tenders for a solid waste contract. The Tender Committee has three members: the Municipal Commissioner, the Chief Engineer, and the Chairman of the Standing Committee. Consider each of these facts separately.

1. The Chief Engineer holds 200 shares in one of the bidding companies. Pecuniary bias. He is disqualified whatever the size of the holding, and the award is liable to be set aside.
2. The Chairman's brother is a director of one bidder. Personal bias. The question is one of degree, but a sibling of a director of a bidder would ordinarily give rise to a real likelihood of bias.
3. The Commissioner wrote the report that recommended outsourcing the service. Not bias. That is a general policy position, and holding one is part of his job.
4. The Commissioner had earlier issued a show cause notice to one bidder alleging fraud, and now sits to judge that bidder's eligibility. Departmental bias in its objectionable form: the same individual is accuser and judge. Even if the statute makes him the deciding authority, another officer should take the decision if the statute allows it.
5. The Chairman withdraws while the tender of his brother's company is considered but sits for the others and for the final ranking. This is Kraipak exactly, and it does not save the decision.
6. The statute provides that the Commissioner alone shall decide, and he has the disqualifying interest. The doctrine of necessity may allow him to decide, because otherwise there is no authority at all; but the interest should be disclosed and the reasons recorded.

Distinctions worth having straight

What it does NOT mean

It does not mean the decision maker must have no opinions. A policy position is not bias.

It does not mean bias must be proved to have operated. A real likelihood, judged from outside, is enough.

It does not mean an allegation of bias is an allegation of corruption. It is a statement about position, not about character.

It does not mean the objection can be kept in reserve. A party who knows of the disqualifying interest and takes part without objecting may be held to have waived it, and cannot complain only after losing.

Quick revision

1. Nemo judex in causa sua: no one a judge in his own cause. Justice must be seen to be done.
2. Five kinds: pecuniary, personal, subject matter, departmental or institutional, and policy bias.
3. Pecuniary bias disqualifies however small the interest; there is no de minimis rule.
4. Personal bias is a question of degree, tested by real likelihood.
5. A.K. Kraipak v. Union of India, AIR 1970 SC 150: a candidate sitting on the selection board; withdrawing for his own case did not cure it, because in group discussion each member influences the others subtly and without awareness; affidavits denying influence did not save it.
6. Two tests: real likelihood of bias, and reasonable suspicion of bias, both judged by the reasonable informed observer.
7. Exceptions: a general policy position is not bias; departmental combination of functions created by statute is not bias, though the same individual should not perform inconsistent roles; and the doctrine of necessity allows the only competent authority to decide.
8. Bias may be waived by a party who knows and does not object.

Test yourself

1. Explain the rule against bias and its kinds. The rule, expressed as nemo judex in causa sua, requires that no person be a judge in his own cause and that the decision maker have no interest in the subject matter or the parties. It is enough that there is a real likelihood or reasonable suspicion of bias judged by a reasonable and informed observer, because justice must be seen to be done, and proof that the decision was actually influenced is not required. The kinds are pecuniary bias, which disqualifies however small the interest; personal bias, arising from kinship, friendship, hostility or rivalry, which is a question of degree; subject matter bias, where the decision maker is directly connected with the matter in issue; departmental or institutional bias, where the same body investigates and decides; and policy bias, where the decision maker has committed himself to a view on the very question, though holding a general policy is not bias.

2. Discuss A.K. Kraipak's case on bias. A Special Selection Board was constituted to select officers of the Jammu and Kashmir forest department for the Indian Forest Service. One member, the Acting Chief Conservator of Forests, was himself a candidate, and had obtained his acting post by superseding another Conservator whose appeal was pending. He withdrew when his own name was considered but sat when his rivals' claims were considered and when the order of preference was settled; he was placed at the top and three rivals were left out. The Supreme Court held that the rule that enquiries be held in good faith and without bias is part of natural justice, that there was a conflict between his interest and duty so that he was a judge in his own cause, and that on human probabilities there was reasonable ground for believing he was likely to have been biased. Withdrawal from part of the process did not cure it, because in group discussions each member is bound to influence the others in a subtle manner without their being aware of it, and affidavits from the other members denying influence did not save the selection.

3. State the tests for bias. Two formulations are used. The real likelihood test asks whether a reasonable person, knowing the relevant facts, would think there was a real likelihood that the authority would be biased. The reasonable suspicion test asks whether a reasonable person would suspect bias, and sets a slightly lower threshold. Both are applied from the standpoint of the reasonable and informed observer rather than the litigant, and in practice they rarely produce different results. Indian courts have generally applied the real likelihood test, as in A.K. Kraipak v. Union of India, AIR 1970 SC 150.

4. What is the doctrine of necessity in relation to bias? Where the person said to be biased is the only authority competent to decide the matter, and there is no lawful alternative, he may decide despite the interest, because otherwise the matter could never be decided at all and the rule against bias would defeat the administration of justice. The doctrine does not licence bad faith, and good practice requires the interest to be disclosed and the reasons recorded.

5. Is the combination of investigating and deciding functions in one department a breach of the rule against bias? Not where the statute itself creates that arrangement, because natural justice supplements the law and cannot be used to defeat the scheme the legislature has enacted. Two safeguards remain: the same individual should not perform inconsistent roles, so the officer who investigated or issued the show cause notice should not, where the statute permits an alternative, be the one who decides; and the person affected must still receive the substance of a fair hearing.