242

CHAPTER-VI
SUBJECT- MATTER BIAS

1. INTRODUCTION

When the adjudicator or the judge has general interest in the

subject matter in dispute on account of his association with the

administrative or private body, he will be disqualified on the ground of

bias. If he has intimately identified himself with the issue in dispute. To

disqualify under ground there must be intimate and direct connection

between the adjudicator and the issues in dispute. A person shall also be

disqualified from acting as judge if he has bias as to the subject-matter. If

he himself is a party or has some direct connection with the litigation, so

as to constitute a legal interest, he will be deemed to have a bias in the

subject-matter. But it should be noted that mere involvement of a judge

would not vitiate the administrative action unless there is a real likelihood

of bias. For example in R.v Deal Justices ex parte Curling1, it was held

that a Magistrate who was a member of the Royal Society for the

prevention of cruelty to an animal as this did not prove a real likelihood

of bias.

Again in Murlidhar v. Kadam Singh2, the High Court did not

quash the decision of the Election Tribunal on the ground that the wife of

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1. (1881) 45 L.T. 409
2. A.I.R. 1954 M.B. 111
 243

the Chairman was a member of the Congress Party whose candidate the

petitioner defeated.

In R. v. Hartforshire3, it was held that a person who once

decided a question should not take part in reviewing their own decision

on appeal.

In Andhra Scientific Co. Ltd. V. A Sheshagiri Rao and

others4, the General Manager of the Company conducted an inquiry

against some Workmen. During the inquiry when it became necessary to

examine the General Manager as a witness, the inquiry was taken over by

the Manager. Director of the Company who examined the General

Manager as well as actively produced evidence against the workmen. It

was held by the Hon'ble Supreme Court that General Manager and

Managing Director, though both were different persons, yet constituted in

substance practically one entity. These being the facts, the manner in

which inquiry was conducted could hardly be said to have ensured fair

play which rules of natural justice require. The proceedings were quashed

on the ground of bias as the Managing Director was, from very

beginning, active in securing evidence to establish the charge against the

workmen.

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3. (1845) 6 Q.B. 753
4. A.I.R. 1967 S.C. 408
 244

In K. Chelliah v. Chariman, Industrial Finance

Corporation5, the disciplinary action against an employee was taken by

the Chairman of the corporation. There was statutory provision for the

appeal from the Chairman to the Board of Directors. The Chairman was

also a member of Board of Directors. The Chairman participated in the

meeting of the Board in which the appeal was considered. The order of

the Board was quashed on the ground of bias. The presence of the

Chairman in the meeting of the Board in which the appeal was considered

created reasonable apprehension in the mind of the party that there was

real likelihood of bias.

The decision of an adjudicator will be vitiated if there has

been intimate and direct connection between the adjudicator and the issue

in dispute. For example, in the State of U.P.v.Mohd.Nooh6, a

Departmental inquiry was held against an employee and one of the

witnesses against the employee turned hostile. The Inquiry Officer left

the inquiry and gave evidence against him and thereafter resumed to

complete the inquiry and passed the order of dismissal. The order was

quashed on the grounds of such bias as to subject-matter.

But as held in Kundala Rao v. Andhra Pradesh Transport

Corporation7 if the authority concerned acted judicially in approving or
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5. A.I.R. 1973 Mad. 122
6. A.I.R. 1958 S.C. 86
7. A.I.R. 1961 S.C. 82
 245

modifying the scheme, the approval or modification is not open to

challenge and a mere general interest in the general object to be pursued

would not disqualify the judge. But it should be noted that orders passed

by judge while functioning High-Court Judge earlier, cannot be taken as

basis for any bias as in case of K.Vijaya Bhaskar Reddy v. Govt. of

A.P.8

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” as in Metropolitan Properties Co. (FCG)

Ltd. v. Lannon, supra note 27 or a “real likelihood of bias”. The

“reasonable suspicion” test looks mainly to outward appearance, and the

“real likelihood” test focuses on court‟s own evaluation of possibilities;

but in practice the tests have much in common with one another and in

the vast majority of cases they will lead to the same result as in the case

of I.P. Massey, Administrative Law 204 (7th ed, 2008). 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 a reasonable ground for believing that the deciding

officer was likely to have been biased.

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8. A.I.R. 1996 A.P. 62

 246

2. THE REASONABLE SUSPICION TEST

As the name of the reasonable suspicion of bias test

indicates, reasonableness plays a vital role in its application. The real

question regarding this test is whether it actually exists.

This test postulates that where the statements or actions or

position of an adjudicator causes necessarily a reasonable person

Contrary to Lord Esher M.R.‟s suggestions in Eckersley v. Mersey

Docks and Harbour Board9, that one should consider the suspicions of

“not necessarily reasonable people”; criticized by Lord O‟ Brien C.J. in

R. v. Cork Country Justices10, as being “loose expressions”, not a fool

Unlike that which Day J. in R. v. Taylor, ex p. Vogwill11 proscribed :

“Anything at any time which would make fools suspect.”, nor a

whimsical, capricious, or morbid person R. v. Cork Country Justices,

supra note 31, to think that there is a real possibility of bias on his part

for or against a party in a particular case, he is disqualified from sitting.

In the earlier days of rule against bias, the courts implicitly

denied the existence of reasonable suspicion test by relating non-

pecuniary interest to only the real likelihood test

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9. [1894] 2 Q.B. 667

10. [1910] 2 I.R. 271
11. (1898) 14 T.L.R. 185
 247

R. v. Rand, supra note 25; R. v. Deal Justices, supra note 19 and the

peculiar substantial interest doctrine. R. v. Henely12,

Even at that time, however, Lord Esher M.R. stated that the

law required that an adjudicator could not “reasonable be suspected of

being biased”, Allinson v. General Medical Council13, while Lopes L.J.

said that the test of bias was whether there was “any reasonable – any real

or substantial – ground for suspecting bias. This test secured the quashing

of a conviction for illegal salmon fishing in England when the presiding

justices were members of prosecuting association. R. v. Allan14,. It was

also applied on other occasions in England and Australia. Law v.

Chartered Institute of Patent Agents15,; R. v. Huggins16; Sharp v.

Carey17,

This test enjoyed a major break-through in R. v. Sussex

Justices ex. p. McCarthy supra note 9. In this case Lord Hewart C.J. laid

down that “it is not merely of some importance but it is of fundamental

importance that justice should not only be done, but should manifestly

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12. [1892] 1 Q.B. 504
13. [1894] 1 Q.B. 750
14. (1864) 4 B.& S. 915
15. [1919] 2 Ch. 276
16. [1895] 1 Q.B. 563
17. (1897) 23 V.L.R, 248, F.S.C.
 248

and undoubtedly be seen to be done.” Adding that nothing should be done

which created “even a suspicion” of improper interference with justice,

Lord Hewart reinforced the reasonable suspicion test.

In the three decades following this case, the test was

employed in many other cases, suppressing the decisions of valuation

assessment committees and justices presiding over family disputes in

England, quashing the orders of magistrates making unfortunate remarks

in New Zealand and Australia and avoiding arbitration awards in

Australia. Moreover, this test was otherwise recognized.

3. THE REAL LIKELIHOOD TEST

Ever since English justices certified that a corporation, in

whose bonds their cestui qui trustees had invested, might appropriate a

stream, and Blackburn J. held that non-pecuniary interest had not been

proved as there was no “real likelihood” of bias R v. Rand, supra note

25, no one has doubted the existence of the real likelihood of bias test.

What has been queried, by Danckwerts L.J. for example, is

this: “must there be a real likelihood that the tribunal was biased, or is it

sufficient that a reasonable person would think that the tribunal might be

biased?” Metropolitan Properties Co. Ltd. v. Lannon, supra note 29.

Those answered question are apt to throw doubt on whether a court must

apply the perception of a reasonable person in determining a real

likelihood of bias. Likewise, Devlin L.J. posists that “ „real likelihood‟

 249

depends on the impression which the courts gets from circumstances.” R.

v. Barnsley Licensing Justices, supra note 28. Noticeably he speaks of

the impressions of “the court”, not of the “reasonable person”, without

stating what criteria the court would use in gaining its impression.

Surely, when the founding fathers of the Commonwealth

Bills of Rights guaranteed to the individual the right to have his criminal

charge and his civil rights or obligations determined by an “independent

and impartial” Urias Forbes, Administartive Law in West Indies18

tribunal, they doubtless meant to secure freedom from bias as judged by

the reasonable person.

Obviously the standard of a morbid person cannot be used.

Nor, however, can one use that of an irrepressible optimist, never

accepting that “even when Man‟s passions are noble they are too often

diverted from their true course.” Sir Hugh Wooding, Law Reform

Necessary in Trinidad and Tobago19. Rather one agrees with Lord

Denning J.R. that a real likelihood bias exists when “a reasonable man

would think it likely or probable” that an adjudicator favoured one side

unfairly, Metropolitan Properties Co. Ltd. v. Lannon, supra note 29.

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18. 21 I.C.L.Q. 95 (1972)

19. 9 CAN. B.J. 292 (1966)

 250

So, too Professor de Smith suggests that real likelihood “is based on the

reasonable apprehensions S.A. de SMITH, JUDICIAL REVIEW OF

ADMINISTRATIVE ACTION20 of a reasonable man.”

4. DIFFERENTIATING THE TWO TESTS

4.1 ABSENCE OF DIFFERENTIATION

Three reasons may be identified for absence for

differentiation. Firstly, so ling as the existence of reasonable suspicion

test was denied, differentiation was unimportant. Now that this test if

flourishing, thid differentiation is unavoidable. The second is the

conviction that “in the great majority of cases either test will lead to the

same result Turner v. Allison21. And, thirdly, there is little (if any)

difference between the two tests Hannam v. Bradford Corporation,

supra note 25. Also according to Lord Widgery C.J. no good purpose

would be served by attempting a differentiation R. v. Altrincham, ex p.

Pennington22,

But, on the other hand, it is inelegant to have two tests

existing pari passu without an articulated differentiation. Since, there are

two tests, and tow formulations of one test, there must be some real

difference between them.

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20. 230 (3rd ed., 1973)
21. [1971] N.Z.L.R. 833
22. [1975] 1 Q.B. 549,
 251

4.2 OUTWARD APPEARANCES

Professor de Smith suggests that “reasonable suspicion tests”

look mainly to outward appearances; “real likelihood tests” focus on the

court‟s own evaluation of the probabilities S.A. de SMITH, supra note

47, at 231. If by the “court‟s own evaluation”, Professor de Smith means

the judgment of the court uninfluenced by that of a reasonable man, this

conflicts with his opinion that real likelihood is based on “the reasonable

apprehensions of a reasonable man”.

Moreover, both the tests mainly look to the outward

appearances. Lord Denning reaffirms the principle because it

emphasizees that real likelihood does not consider the mind of the

adjudicator”, so that even if he was as impartial as he could be, still his

decision cannot stand if “right-minded persons”, if his “good friends”,

perceive a real likelihood of bias Metropolitan Properties Co. Ltd. v.

Lannon, supra note 29.

The entirety of rule against bias must be concerned with the

outward appearances because it is never necessary to prove that an

adjudicator has actually been biased R. v. Edwards23, Rexats Kudan v.

Carty24,

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23. (1922) 1 St.R. 36;
24. (1933) 1 J.L.R. 99
 252

THE DIFFERENTIATION

Difference between the two tests is a reflection of the

nearness to which a given circumstance approximates to a concrete

temptation to an adjudicator to deviate from the path of impartiality in

order to favour unfairly a party to or an interest in a matter. Real

likelihood od bias denoted the predominant probability of the risk of bias

as discerned by a reasonable person; whereas a reasonable suspicion of

bias, connoting a less commanding danger of bias than does a real

likelihood, presents a substantial possibility of the risk of bias as

perceived by a reasonable person Francis Alexis, Reasonableness in the

Establishing of Bias, PUBLIC LAW.

The courts almost invariably identify real likelihood with

“probability”. But they very rarely associate reasonable suspicion with

possibility. And Professor de Smith defines real likelihood in terms of

both probabilities and possibilities S.A. de SMITH25,

5. DIFFERENTIATION IN THE INDIAN SCENARIO

In the case of S. Parthasarthi v. State of A.P.26, it was held

that the tests of real likelihood of bias and reasonable suspicion of bias

are inconsistent with each other. The first test if preferable and surmise

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25. Supra note 47, at 230
26. AIR 1979 SC 2701
 253

conjecture is not enough. In case where there is real likelihood of bias the

ultimate decision based on the report of the Enquiry Officer will be

quashed. The cumulative effect of following circumstances show bias:

(i) Repeated memorandums given by the authorities threatening

disciplinary action.

(ii) Overlooking claim for promotion.

(iii) Making deduction from pay for absence which were restored

by higher authorities.

(iv) Asking him to tale charge of weeding section and not giving

facilities asked for.

(v) Sending a letter to hospital for mental diseases asking about

the mentak condition of the appellant and his refusal not to advise

retrenchment on medical grounds and starting disciplinary proceedings

therafter.

6. TEST OF REASONABLE SUSPICION OF BIAS OR REAL

LIKELIHOOD OF BIAS IN THE INDIAN SCENARIO

In deciding the question of bias, the judges have to take into

consideration the human possibilities and ordinary course of human

conduct G.N. Nayak v. Goa University, supra note 4. But there must be

a real likelihood of bias and not a mere suspicion of bias before the

proceedings can be quashed on the ground that the person conducting the
 254

proceedings is disqualified by bias. In Jiwan K. Lohia v. Durga Dutt

Lohia27, upholding the decision of High Court while removing an

arbitrator appointed by the court on the ground of bias, the Supreme

Court observed that with regard to bias the test that has to applied is not

whether in fact bias has affected the judgment but whether the litigant

could reasonably apprehend that a bias attributable might have operated

against him in the final decision.

Therefore, the real test of “real likelihood of bias” is whether

a reasonable man, in possession of relevant information, would have

thought that bias was likely or whether the authority concerned was likely

to be disposed to decide the matter in a particular way.”

In the case of Ramanand Prasad Singh v. Union of India28,

the Supreme Court held that participation in the selection committee as a

member where his brother was a candidate but was not selected is

inconsequential bias on which the whole select list cannot be quashed. In

the case of Jasvinder Singh v. State Bank of J&K29, the Supreme Court

held that in the absence of any specific allegation against the Selection

Board or any member thereof, awarding of higher percentage of marks to

those who got lower marks in a written examination would not vitiate

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27. (1992) 1 SCC 56
28. (1996) 4 SCC 64
29. (2003) 2 SCC 132
 255

selection especially when there were only a few negligible instances and

there was no conscious effort to bring candidates within the selection

zone. In Federation of Railway Officers Assn. v. Union of India30, the

court further held that the allegation of bias on imaginary basis cannot be

sustained.

In Gullappalli Nageswara Rao v. State of A.P. supra note

19, it was held that the doctrine of bias is equally applicable to authorities

though they are not courts of justice or judicial tribunals, who have to act

judicially in deciding the rights of others i.e. authorities who are

empowered to discharged quasi-judicial function.

In the case of Charanjit Singh v. Harinder Sharma31, the

Court held that there is a real likelihood of bias when in a small place

there is a relationship between selectees and members of selection

committee. Some important cases related to this rule are:

MANAK LAL v. Dr. PREM CHAND32

In order to decide a complaint for professional misconduct

filed 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.

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30. (2003) 4 SCC 289
31. (2002) 9 SCC 732
32. AIR 1957 SC 425
 256

The decision of the 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 refused 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, high professional

standards let the court to quash the action in the final analysis on the

ground that justice should not be done but must appear to have been done.

STATE OF U.P. v. MOHD. NOOH33

In this case, a Deputy 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 offered himself as a witness.

The Supreme Court quashed the administrative action on the ground that

when the presiding officer himself becomes a witness, there is certainly „a

real likelihood of bias‟ against the constable.

A.K. KRAIPAK v. UNION OF INDIA supra note 15

In this case, Naquishbund, who was the acting Chief

Conservator of Forests, was a member of the Selection Board and was

also a candidate for selection to the all India cadre of Forest Service.

Though he did not take part in the deliberations of the Board when his

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33. AIR 1958 SC 86
 257

name was being considered and approved, the Supreme Court held that

there is a real likelihood of bias, for the mere presence of candidate on the

Selection Board may adversely influence the judgment of the other

member.

GANGA BAI CHARITIES v. CIT34

In this case, the lawyer while acting as a special counsel for

the Income Tax Department had given his opinion that the assessee trust

was not entitled to tax-exemption. Later on he was elevated as a judge of

the High Court and seven years later heard and decided the seven years

later, heard and decided the same point, in a reference, against the trust.

None of the parties brought this aspect before the judge during the

hearing. On appeal, the Supreme Court rightly held that there was no real

likelihood of bias opinion had been given seven years ago and the judge

may not have remembered the routine opinion given as a busy lawyer

after a long lapse of time.

INTERNATIONAL AIRPORTS AUHTORITY v. K.D.BALI35

It was held that in order to constitute bias there must be

reasonableness of apprehension of bias in the mind of the party. The

purity of administration requires that the party to the proceedings should

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34. (1992) 3 SCC 690
35. (1988) 2 SCC 360
 258

npt have apprehension that the authority is biased and is likely to decide

against the party. But it is not every suspicion felt by the party which

must lead to the conclusion that the authority hearing the proceedings is

biased. The apprehension must be judged from a reasonable, healthy and

average point of view and not a mere apprehension of a mere whimsical

person. Vague suspicios of whimsical, capricious and unreasonable

people are not our standard to regulate our vision. It is the reasonable and

apprehension of an average honest man that must be taken note of.

APSRT CORPORATION v. SATYANARAYANA TRANSPORT

PVT. LTD, GUNTUR36

A scheme containing proposals for the State to take over

road transport services in the area of Guntur district form private

operators was published in accordance with the provisions of Ch IV A of

the Motor Vehicles Act, 1939. Objections were invited from persons who

were likely to be affected by the scheme. The minister of transport gave a

hearing and approved the scheme. In the Supreme Court, the petitioners,

who were the proprietors of a private transport company, which was to

lose its business under the scheme, contended that the minister, who

heard the objections was biased against them. The minister had asked the

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36. AIR 1965 SC 1303
 259

petitioner to persuade some members of the Congress party to vote for

him in the elections. The petitioner had tried to do so but had not

succeeded, with the result that the minister lost the election. The Court

held that this was enough to cause prejudice in the minister‟s mind, and in

the absence of an effective rebuttal against this allegation by the minister,

the minister could not hear the parties. The order of minister was,

therefore quashed, since it was vitiated by bias.

7. CONCLUSION

Hence, it can be concluded that every kind of preference is

not sufficient to vitiate an administrative action. If the preference is

rational and unaccompanied by consideration of rational interest,

pecuniary or otherwise, it would not vitiate the decision. There must be a

real likelihood and not a mere suspicion of bias, before the proceedings

can be quashed on the ground of bias. This apprehension must be judged

from a healthy, reasonable and average point of view and not a mere

apprehension and a vague suspicion of whimsical capricious and

unreasonable people PAUL CRAIG, ADMINISTRATIVE LAW37.

There is, according to some authors, a thin line of difference

between the two tests i.e real likelihood of bias and reasonable suspicion

of bias. But these tests yield the same result when applied to particular

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37. 419 (6th ed., 2008)
 260

situation. So, it can be said that these two tests are same in effect. In the

Indian circumstances also, the courts have no doubt applied these tests in

various cases. But they have been very cautious in its application. It is

judged from a reasonable man‟s point of view and not from the point of

view of a person who is whimsical D.GALLIGAN, DUE PROCESS

AND FAIR PROCEDURE38

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38. 437-450 (1996).