Nemo Judex in Causa Sua: The Rule Against Bias
Chapter Seventy-Three
Syllabus topic 5, "Procedural fairness"
Pages 220 to 222 of 430
In one line
Nobody may judge a case in which he has an interest, because a judge with an interest is not a judge.
In the wording a student can write in an exam: nemo judex in causa sua, that no one shall be a judge in his own cause, requires that a person deciding a matter shall have no interest in it and no prejudice about it; the rule is broken not only where bias is shown to have operated but where a reasonable person would apprehend that it might have, because justice must not only be done but must manifestly and undoubtedly be seen to be done.
MU's question
The University sets it as part of a whole question: that the rule against bias and the reasoned decision play a significant role in fair administration of justice in India, to be explained. The reasoned decision is in [Failure to Give Reasons: The Reasoned Decision]; this chapter is the rule, and the kinds and the test follow in the next two.
Why the appearance matters as much as the fact
Because the purpose of the rule is confidence. A litigant who loses before a judge with an interest will never accept that the interest made no difference, and no evidence can persuade him, since nobody can prove what went on in another mind. So the law does not try. It disqualifies on the appearance, and in doing so protects both the litigant and the adjudicator.
The classic Indian statement
Manak Lal v. Dr. Prem Chand, AIR 1957 SC 425.
Facts. A complaint of professional misconduct was made against an advocate. The Chief Justice appointed a tribunal under the Bar Councils Act, and a senior advocate was appointed its chairman. That chairman had earlier appeared once for the complainant in the very case out of which the complaint arose. No objection to the constitution was taken before the tribunal. The tribunal found the advocate guilty and the High Court directed that his name be struck off the rolls.
Held. The constitution of the tribunal suffered from a serious infirmity because of the chairman's earlier appearance. Every member of a tribunal called upon to try issues in judicial or quasi-judicial proceedings must be able to act judicially, and it is of the essence of judicial administration that judges act impartially, objectively and without bias. 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. On the facts, however, the appellant knew the material facts, took no objection and took his chance before the tribunal, so he had waived the objection, and a fresh enquiry was directed rather than the finding simply being set aside.
Nemo Judex in Causa Sua: The Rule Against Bias
Why it matters here. It states the test, it states the reason, and it states the qualification about waiver, all in one case.
The extension to administrative bodies
A.K. Kraipak v. Union of India, AIR 1970 SC 150, carries the rule into administrative action. A selection board is not a tribunal and decides no lis, and yet a member who was himself a candidate disqualified it. The Court held that the rule that enquiries must be held in good faith and without bias, and not arbitrarily or unreasonably, is now among the principles of natural justice.
That extension is what makes the rule matter in this paper, because most administrative decisions are not judicial in form.
The three questions to ask
- Has the decision-maker an interest? Pecuniary, personal, or in the subject matter.
- Would a reasonable person, knowing the facts, apprehend that the interest might have influenced the decision?
- Was the objection taken at the first opportunity? If not, it may be waived.
A worked example
A district committee decides applications for the allotment of shops in a new market. One member's brother-in-law is an applicant. The member does not withdraw, and the brother-in-law is allotted a shop.
The rule is broken. The member had a personal interest, a reasonable person would apprehend that it might have influenced the committee, and no proof of actual influence is needed. If the member had withdrawn while his brother-in-law's application was considered, Kraipak would still be a difficulty, because he would have sat on the competing applications, which are the mirror image of his relative's. The safe course is that he takes no part at all, and the committee records that he did not.
What this does NOT mean
It does not mean the decision-maker must be an empty vessel. Prior knowledge of the subject, or of the parties in a general way, is not bias, and a specialist body is chosen for its knowledge.
It does not mean a policy view disqualifies. A member who has publicly supported a policy is not disqualified from applying it, which is policy bias and is treated indulgently.
It does not mean the rule is absolute. The doctrine of necessity may require a disqualified authority to act where there is no other, which is [The Doctrine of Necessity].
Quick revision
No one may judge his own cause. The purpose is confidence, so the test is appearance rather than proof: whether a litigant could reasonably apprehend that a bias attributable to a member might have operated against him, which is Manak Lal. Kraipak carried the rule into administrative action, so selection boards and committees are bound. Three questions: is there an interest, would a reasonable person apprehend influence, and was the objection taken at once. Prior knowledge and a policy view do not disqualify, and necessity may override.
Nemo Judex in Causa Sua: The Rule Against Bias
Test yourself
1. Why is the test one of appearance rather than actual influence? Because actual influence on another mind cannot be proved or disproved, and the purpose of the rule is public confidence, which requires that justice be seen to be done.
2. Did the chairman's earlier appearance disqualify the tribunal in Manak Lal? Yes, but the appellant had waived the objection by appearing and taking his chance, so a fresh enquiry was directed.
3. What did Kraipak add? That the rule applies to administrative bodies, including a selection board which decides no dispute between parties.
The rest of this subject
These notes are cut from the University's printed syllabus. Open the syllabus itself, or the past papers, for the same subject.