THE RULES OF NATURAL JUSTICE

CHAPTER II

THE RULES OF NATURAL JUSTICE

The aim of Rules of Natural Justice is prevention of misca­

rriage of justice and assurance of getting justice in the real
sense of the term. These rules operate in the area which are not
covered by valid legislative enactments. They do not subplant the
law of the land but supplement it. However, every Law has to
conform to this rule. These rules have been recognised and applied
by the Courts from times immemorial. They are a practical limitat­
ions on the procedures that are contrary to the principles of
natural justice. It is very difficult to give a comprehensive list
of the rules of the Natural Justice. However, “The Romans put them
in the two maxims: Nemo judex in causa sua and audi alteram partem.
They have recently been put in two words, 'impartiality and Fair-

ness".

The Committee on Ministers powers in 1932 formulated the

following rules of Natural Justice;

1. That no man shall be a judge in his own cause.

2. That no man shall be condemned unheard.

3. That a party is entitled to know the reason for the

decision.

Acting honestly and in good faith is the automatic reflexion

of the rules of the Natural Justice.

1. [Link] v Government of the Federation of Malaya,(1962)

A.C. 322 at 337.
 195

The First Principle of Natural Justice: Freedom from Bias

NEMO DEBET ESSE JUDEX IN PROPRIA SUA CAUSA

( No man- dan be judge in his own cause)

The first principle of Natural Justice states that legally

speaking a person cannot be a judge in his own cause. This is the

only way to enable the person, who loses the case, to identify with
the decision. The judge may be honest and unselfish# yet if there
is little proof that he was interested in the cause in any way, it
will make the disappointed party a prey to a sneaking suspicion
that the case went against him not on its merits but by reason of
the judge's private interest. A judge, having a private interest,
may decide the case justly and in an impartial manner yet the
suspicion of the disappointed party has to be allayed because this
is the only way to maintain the impariality and confidence in the
judicial process. That is why it was emphasized by Bowen L.J. in
Leeson v General Council of Medical Education , “Judges, like
2
Caesar's Wife, should be above suspicion." This is a clear rule
of law as well as of natural equity. Therefore, it has been the
rule that if a judge has any interest in the subject matter of the
case which has been brought before him, all the proceedings shall
be set aside unless the parties, with full knowledge of the facts,

have waived the objections.

1. (1889) 43 Ch.D. 366.

2. Ibid at 385.
 196

The word 'bias' means an one sided inclination of mind or

any special influence that sways the mind.^ The Oxford Dictionary

defines the word 'bias' as inclination, predisposition, prejudice

and influence. It is defined there with reference to the game of
bowls which means the lopsided form of bowl, its oblique course,

the inserted plug of metal or influence deflecting it. As a verb,

the dictionary defines it to mean giving a bias to or inspiring
with prejudice. It says that this word has been derived from the
French word 'biaisf which means the same thing. Thus, this rule
means that no one can act in a judicial capacity if there is a sus­
picion in the mind of the litigant that the judge cannot act with
an open mind. Sir C.K.^llen says that, "bias" has been very strict­
ly interpreted in our law. In the widest terms, any interest,
motive or influence which, in the opinion of the court, may impair
the 'objectiveness of a decision' or, what is equally important,
may,have the appearance of so doing-will invalidate a judicial or
quasi-judicial determination. The law, in our doctrine ' taks no
chances' it constantly makes allowance, not necessarily for the
most reasonable, but for the most suspicious attitude in the public
towards the administration of justice; and it, therefore, frequent­
ly recognises 'bias' not because it believes that any thing irregu­
lar has ever happened, but because it might happen or because some-
3
body might think that it has happened". Thus, the principle of
bias states that a person trying a cause must be able to act above

1. Legal Glossary, 1988, p.41.

2. Oxford Dictionary (Concise) Fifth Edition,1964, p.115.
3, Law and Orders, 1964, p. 279.
 197

suspicion of unfairness and predisposition. The adjudicating autho­

rity must come to his chamber with an independent mind, without

any inclination or bias towards one side or the other. “A happy and
successful judge is a good judge, and a good judge is one who
performs his profession well and virtuously and seen by the commu­
nity to performs it so. And the state of character, that is author
of the judge's natural goodness and virtue, is impartiality". If
the impression is created that the adjudicating authority or a judge
decides the case being influenced by enemity or prejudice, that
will be a Dad day in the annals of the adjudicating process. These
things are apparent. Thus, Mathews J. observed in Yick Wo v
2
Hopkins , that "The action or non-action of officers placed in such
position may proceed from enmity or prejudice, from partisan zeal
or animosity, from favouritism and other improper influences and
motives which are easy of concealment and difficult to be detected
and exposed, and consequently the injustice capable of being wrou­
ght under cover of such unrestricted power becomes apparent to
3
every man, without the necessity of detailed investigation". These
elements are to be checked, if justice is to be made unbiased and
impartial. The law is very clear on this point. If a person is
interested he cannot be a judge in that very case. Dysart J. has
observed very rightly that, "The law is clear that no person shall

act as a judge in any case in which he is accuser or prosecutor,or

in which he has or may reasonably appear to have, any interest or

1. The Structure of Impartiality, Thomas [Link], New York,1968,

p. 82.
2. (1886) 118, U.S. 356.
3. Ibid at p. 373.
 198

bias in favour of or against any party thereto, fhe inhibition

goes not only to the propriety of his so acting, but to his very
capacity to act at all, so that if he does purport to act, his
judgment will be set aside as a nullity. This great principle of
our laws applies to all cases without exception in which a person
is called upon to act judicially, and extends to every member of
the judicial tribunal, and to every judicial act. The course of
justice must be pure and undefiled, and ail judicial officers, like
Caesar's wife, must be above suspicion in the exercise of their
judicial functions". The important point here is that one has to
avoid such circumstances as will create the suspicion in the mind
that the particular person is biased. We have to remember the fam­
ous dicta of Lord Esher M.R. in Eckersley v Mersey JDocks and Harbour
2
Board , "that not only must they be not biased, but that, even if
it be demonstrated that they would not be biased, they ought not to
act as judges in a matter where the circumstances are such that
3
people .... would suspect them of being biased". It is undesirable
that justice should be administered by persons who cannot be above
pride and prejudice. It is against the public policy to allow such
persons to be a party in the adjudicating process.

If anything is done against the principle that no person

shall be a judge in his own cause, the whole proceedings of such a
body shall be null and void. Public policy also demands that the
purity of the administration of justice is to be maintained at any

1. Nichols v Graham, (1937) 3 D.L.R. 795 at 799.

2. (1894) 2 Q.B. 667.
3. Ibid at p. 671.
 199

cost and any person who is to take part in adjudicating process

should not be put in such a position as will make him suspected
by others of being biased. The area of the application of this rule
has to be enlarged and not to be restricted.

The power and efficiency of any judicial system depend upon

its freedom from all suspicion of bias or partiality. The stimulat­
ion of public confidence in the integrity of the adjudicating pro­
cess demands that the judges should be both, fair minded and above
suspicions. This will ensure the public respect and confidence, the
necessary elements, to stability and effectiveness of both judicial
and administrative adjudicating process. The courts, tribunals and
other decision making bodies should be impartial and their proceed­
ing must ensure that they are really impartial and free from bias
or prejudice. The stern morality of the common law demands that
the adjudicating authority is to be legally indifferent towards the
party. In a democratic society, governed by the rule of law, the
people's lack of confidence in fairness, impartiality and integrity

of the judicial process is the saddest part of the democracy. The

whole purpose of the judicial impartiality is to maintain the confi­
dence of the people in it. If it is not there, the whole stability
of the governmental structure is destined to fall. Public confide­
nce thus becomes the essential element of the juridicial system.
Justice should not only be done, but the, "Faith that justice is
being done is secondary only. to the actual dispensation of justice
*. 1

1. Van Schaick v Carr. 159, Wise. 873

 200

A New Mexico Court has very aptly observed tha, "Our legis­
lature in effect has said that a judge, even though blessed with
all of the virtues any judge ever possessed, shall not be permitted
in exercise judicial power to determine the fact of his own disqual­
ifications, not because the judge in doing so would attempt to act
otherwise than conscientiously, but because in their legislative
judgment it is not fitting for him to make such an attempt, and it
is better that the courts shall maintain the confidence of the
people than that the rights of judge and litigant in a particular
case be served."^ The Pennsylvania Court has also observed that,

"due consideration should be given by him (the judge) to the fact

that the administration of justice should be beyond the appearance
of unfairness.... mediation of courts is based upon the principle
of judicial impartiality, disinterestedness, and fairness pervad­
ing the whole system of judicature so that courts may as near as
2
possible be above suspicion".

3
In Moses v Jullian it has been declared that, "it is the
right of every citizen to be tried by judges as impartial as the
lot of humanity will admit. This is but the expression of a well
known rule of universal justice everywhere recognised. It is one
of the great principles of the common law, for which the people of
England had struggled for ages, and which they ultimately succeeded
in establishing against the strenous efforts of a tyrannical govern­
ment. We can have no higher authority than this for denouncing as
1. State exrel. Hannah v-Armijo, Judge,38, N.M.73,28 (2nd),
p.511 at 512 (1933)
2. In ReCrawfords State 307 Pa.102, 160, Atl.585 at 587 (1931).
3. 45 N.H. 54, 8.4, [Link].118.
 201

illegal everything which interferes with the entire impartiality

of every legal tribunal".'’’ Again it was observed, by an Alaska Courts

that, "The law wisely withholds from every judge all temptations
to depart from the strict line of duty, from considerations of
interest, by rendering him incompetent to sit in any cause in which
he is interested. The maxim is 'nemo judex in causa propria', and
it is alike founded in common sense, and a just desire to preserve
from impurity the fountains of justice". Thus impartiality of the
judges and the adherence to the principle that no man is to be
judge in his own cause is the most essential element of judicial
system. We have to give importance to the famous dicta of the Circu­
it Judge Frank who said, "Democracy must, indeed, fail, unless our
courts try cases fairly, and there can be no fair trial before a
3
judge lacking in impartiality and disinterestedness". Every person
vested with this responsibility will have to ensure that this
conduct will not create the apprehension in the mind of the litig­
ant that he would not have an impartial trial. "The law has regard
not so much to the motive which might be supposed to bias the
juoge, as to the susceptibilities of the litigant party. One import­
ant object is to clear away everything which might engender
suspicion and distrust of the tribunal, and so to promote the feel­
ing of confidence in the administration of justice which is essent-
4 5
ial to social order and security". In Bhagwan Singh v Ujagir Singh
Rowland J. has observed the following very important lines in this

1. Ibid at
2. Castleberry's case, 23, Ala. 85.
3. In ReJ.P. Linahan, 138, Federal reporter, 2nd Series,650
at 651.
4. Per,Chief Justice Shadilal in hner Singh v Sadho Singh,
A.I.R. 1925,Lohor 361 at 363. 5.A.I.R. (1940)Patna,36.
 202

context. He said that, ’’Every officer in this position should

realise that the confidence thus reposed in him implies a corres­
ponding duty and trust that he will to the best of his power weigh
and balance the evidence, facts and consideration appearing on both
sides. He should endeavour so to decide his cases that his judgment
may carry a conviction, if not of its correctness, atieast of a
fair endeavour to place a correct valuation on the merits of the
cases of both sides. He should never let it appear, either to the
public or to a superior court that he has chosen to accept the evi­
dence of one side or the other without due consideration of the
salient facts established and contrary to the conclusion to which
the outstanding facts point, artitrarily or on patently inadequate
grounds. In short, the judgement ought to show that the judge has
been led to a particular conclusion by the force of the facts and
not that he has had a fancy to adopt a particular conclusion and
then made a one sided presentation of the facts to support the
conclusion. The danger, that in any particular case a decision on
fact may be against the weight of the evidence and hardship may
result, is one that the legislature has chosen to take relying on
the good sense, experience, honesty and impartiality of the offi­

cers selected to discharge these important duties. All the more,

therefore, it is incumbent on such an officer to see that in the
discharge of his function not only are non of these important quali­
ties wanting, but non shall even appear to be wanting. Particular
 203

care should be taken to avoid even the suspicion of bias in deal­

ing with the rights of parties or the decision of a subordinate
officer of a different religion or community from one self."

It is clear,, therefore, that impartiality and freedom from

bias has to be maintained in order to arouse the public confidence
in the administration of judicial process. This has not to be done
on the basis of power and authority that a judicial or an adjudicat­
ing officer possesses. True it is, that the responsibility of the
judicial officer compells him to be above suspicion and to be non
partisan and unbiased. The most important point in the context is
the moral obligation of such persons to avoid embrassing situations.

They are entrusted to decide the cases. Naturally their decisions

are bound to hurt the feelings of one litigant or the other. They
cannot argue and they should not, that because they have got power
and authority to do that, they have done it on that very authority
of power and if some one is hurt by their decisions they are not
concerned with that. In other words they cannot exercise their
power in this or that manner because they so wish. The notion of
public confidence dmands that irrespective of the power and author­
ity that they have, they are obliged by their very profession and
seat of justice that they set a standard of behaviour. They may

not exceed their authority but if they fail to fulfill their obli­
gation to the society that they would really be unbiased judges,
the suspicion against them will be created.

1. Ibid at p.37
 204

THE INTERNAL OR PSYCHOLOGICAL ASPECT OF BIAS

The concept of bias cannot be undertaken to mean that the

mind of an unbiased judge is completely detached from his internal

conviction. Thomas M. Franck observed, "Man's growing preoccupation

with psychological introspection, moral existentialism and subject­
ive self expression on art, literature, music, human relations and
even in what is now called 'the style of government', is distinct­
ive feature of the last half century. The implication of this
social archaeology, the excavation of the burried foundation of
man's psyche to discover the origins of human values, cannot help
but fascinate any jurist who appreciates the nature of his

profession".

Man has to respond to the adequate stimuli given by the

environment of the present and by the environment of the past. The
identification with past, the preoccupation with the present and
the personal outlook for ithe future, make a jurist a prey of all
these elements. One cannot detach himself from his unhidden inter­
nal and psychological bias. After all he is a man and a man may
have prejudices, often unconscious and unknown to him. That uncons­
cious bias may be for or against some of the witnesses, or the
party to the suit, or the lawyers. Writing in preface of his 'Law
2
and the Modern Mind' J. Frank asserted that, "Those prejudices,

1. 'Some Psychological Factors in International 3rd Party

Decision Making'. (1967), 19,Stanford Law Review,1217 at 1218.
2. (1949) from the preface.
 205

when they are racial, religious, political, or economic, may some­

times be surmised by others. But there are some hidden, unconsci­
ous biases of trial judges or jurors such as, for example, plus or
minus reactions to women, or unmarried women, or red-haired women,
or brunettes, or men with deep voices or high-pitched voices, or
fidgety men, or men who wear thick eyeglasses, or those who have
pronounced gestures or nervous tics-biases of which no one can be
aware. Concealed and highly idiosyncratic, such biases-peculiar to
each individual judge or juror cannot be formulated as uniformities
or squeezed into regularised "behaviour patterns". In that respect,
1
neither judges nor jurors are standardised". It is to high light
this aspect that Schroeder, wrote in 1918 that, "Judicial opinions
be studied with a view to (discovering)the genesis and the behavi­
our of the subconscious and concealed impulses which actually pre­
determine the result (and with an awareness) that the written
opinion of a judge is little more than a special plea made indefe-
2
nee of impulses which are largely unconscious". Lord Morley also
wrote the same in his'Notes on Politics and History'that the
intu ive instinct that often goes farther in the statesman's mind
3
than deliberate analysis or argument'. He has quoted there Bismarck,
the great German Emperor that "I have often noticed that my will
4
had decided before my thinking was finished'.' Thus the element of
will and of instinct count much in the judicial process. If 'it
is a right instinct which springs from experience it must always

1. Ibid.
2. The Psychological Study of Judicial Opinions, 6, Californea
Law Review,89 at p.95.
3. Notes on Politics and History,pp. 57-58.
4. Ibid at
 206

command a hearing'^ that is to say that instinct must have its say.

There is no rule which bans judicial reliance upon personnel moral

values, whether they have long been held Jby the particular judge
or are intuitively felt and articulated in the light of the case
before the court. "If judges had not heen free to add to the law
in this way, its ethical quality, the moral sensitivity manifest
in its rules and principles could not .have changed and/or improved
in the course of time. It is legitimate for judges to introduce
such considerations in addition to systemic ones". This is what
3
Cardozo calls "The creative element". However, when a judge relies
upon his personal values and moral intuition, the concept of .the
impartiality of the very system comes into conflict. The losing
party may argue that he has lost the case because of a particular
moral conviction of the presiding officer. Had he not been there he
would have not lost the case. For example if a man is made a judge
to consider the validity of an act which empowers the government to
put a total ban on cow slaughter, and he is deeply of the view

(personally) that there must be a total ban on cow slaughter in

whole part of India, certainly that judge will declare the act
valid and the losing party may have a chance to complain that had
a person of such personal conviction for a total ban on cow slaugh­
ter not been there as a judge, he would have not been loser. The
judge may say that he has been impartial, he has been able to
separate his personal and moral convictions from the decision
1. Greek Political Theory, Plato and his Predecessors, Ernest
Barker, London 1960, p.112.
2. Judicial Impartiality, 98, L.Q.R. at 67.
3. The Nature of Judicial Process, p.113.
 207

making process, or any other person who would, have decided the
case, would have come to the same conclusion. This will not be
enough to ensure the impartiality of the judges. The loser may
not be reassured but more important than that is to convince the
puolic that the judge has been impartial during the whole proceed­
ing. In this connection the opinion of Lord Devlin is of great
importance. He says that, "The essential quality which (the judge)
needs is impartiality and next after that the appearance of impar­
tiality. I put impartiality before the appearance of it simply
because without the reality the appearance would notendure. In
truth, within the context of service to the community the appear­
ance is the more important of the two. The judge who gives the
right judgement while appearing not to do so may be thrice blessed
in heaven, but on earth he is no use at all". It is thus of para­
mount importance that judges should try to convince the people that
they are above their personal views and that they have assimilated
their personal notions with the notions of the community. Judges,
no doubt, are trained to be impartial but, "There has thus been a
wholesome recognition that human frailty may not be overcome by
trained habits of impartiality, that the human limitation of .the
presiding judge may result in the deprivation of a just hearing
and that the stimulation of public confidence in the integrity of
the judiciary demands that the judge be not only actually fair
i.2
minded, but aoove all suspicion". Business connections, political

2. Notes, 41, Harvard Law Review (1927-28) p.79.

 208

background and judges' opinions are much more difficult Ito grapple

with than financial interest, A radical change in the nature of

the lawyers is required. Ross Cranston is of the view that,
"without fundamental changes in the nature of lawyers their socio­
economic background, their education, the type of legal problems
they deal with and ultimately in society itself, it is difficult
to envisage how the biases of the judiciary can be changed."^

The fair judicial process demands that the entire course

of decision making should not be based on the judges own concept
of fairness, decency and other values. Black J. has rightly obser­
ved that, "I prefer to put my faith in the words of the written
Constitution itself rather than to rely on the shifting, day to
day standards of fairness of individual judges". The fact remains
however, that as human beings the judges are likely, "in a variety
of legal contexts consciously or unconsciously, to slip their per-
3
sonal values into their legal reasonings". They make Jaw as an
extention not only of precedent and statute, but also of their
personality, psyche and temprament. Thus "this psychological state
of decision maker, whose subjective preferences continue to be an
if not the most- important variable in the decisional process,
remains a disturbing aspect of the problem of impartiality".

1. Disqualification of Judges for Interest, Association or Opinion,

1979, Public Law, 237 at 253.
2. In ReWinship, 397, U.S. 358 at 377-78.
3. Democracy and Distrust. John Hart Ely (1980) at p.44.
4. Supra p.10, Note 1, at 1219.
 209

If the correct moral reasoning of the judges is based only

on the philosophical axioms from which they derive, it will not

create bias but, "Experience suggests that in fact there will be
a systematic bias in judicial choice of fundamental values, unsur­
prisingly in favour of the values of the upper middile, profession­
al class from which most lawyers and judges, and for that matter
most moral philosophers, are drawn. People understandably think
that what is important to them is what is important, and people
like us are no exception"} We have a fine dialogue of Plato in the

Republic when he says that, "Unquestionably, he said, the wise man

2
speaks with authority when he approves of his own life". This
values of the judges are the values of the first rate lawyers and
if the decision is based on these values, naturally the impartial­
ity of the judges is shaken. Robert Dahl has observed quite rightly
that, "After nearly twenty five centuries almost the only people
who seem to be convinced of the advantages of being ruled by philo-
3
sopher kings are ▼.... a few philosophers". That is why the American

Supreme Court has held that, "Due process is not measured by the
yardstick of personal reactions but by that whole community sense
of decency and fairness that has been woven by common experience
into the fabrick of acceptable conduct. It is on this bedrock that
4
this Court has established the concept of due process". We do not
deny that judges should rely on conventional morality but that

*1 Democracy and Distrust at pp. 58-59.

2. The Republic, Book IX, in 2, The Dialogues of Plato,
455 (4th Edn. [Link]) 1953.
3. Democracy in the United States, 1976, p.24.
4. Breithaupt v Abram, 352, U.S. 432 at 236 (1957).
 210

morality should not be biased by the contemporary prejudices and

class values of judges. The judges must heed to the advice given
by Professor Wellington that, "Courts must be reasonably confident
that they draw on conventional morality and screen out conteporary
bias, passion and prejudice, or indeed, that they distinguish cult-
ivated taste from moral obligation". The same advice has been
given by 'Perry' when he says, that, "Distinction should be drawn
between the commands to which conventional moral culture subscribes
and the commands to which it not only subscribes but believe should
2
have the force of law". Thus it is necessary that, "Some such
collection of laundering devices is plainly needed lest one be
forced to the conclusion that the law the legislature passed is
likely to reflect the way conteporary community values bear on the
issues in question".

In fact the society's set of moral principles, the princi­

ples and ideals widely shared by the society, of which the judge
is a member, cannot be ignored and that is why a judge's reasoning
is based on the morals of hi ssociety. It is here that concept of
conventional morality becomes important. "Conventional morality",
says Prof. Hart, "Is the standards of conduct which are widely
shared in particular society, are to be controlled with moral pri­
nciples or moral ideals which may govern an individual's life,but
which he does not share with any considered number of those with
4
whom he lives".
1. Common Law Rules and Constitutional Double Standards: Some
Notes on Adjudication; 83 Yale L.J.221 at 251 (1973)
2. Substantive due process Revisited; Reflection on (and beyond)
recent cases. 71 N.W.U.L, Review 417 at 442 (1976)
3. Democracy and Distrust,p.67.
4. The Concept of Law,1961, p.165.
 211

The moment we assume a moral point of view, the necessary

ingredients in moral argument come up. They are according to Prof.
R.M. Hare, "Logic, the facts, the inclination and interest of the
people concerned and a certain power of imagination and readiness
1
to use it". It is this readiness on the part of the Chief Justice
Dixon of the Australia High Court which compelled him to disregard
the opinion of the House of Lords in Smith’s case because it was
against the interest of the Australian Society. He observed that,
"Hither to I have thought that we ought to follow decisions of the
House of Lords at the expense of our opinions and cases decided
here, but having carefully studied Smith's case I think, that we
cannot adhere to that view or policy. There are propositions laid
down in the judgement which I believe to be misconceived and wrong.
They are fundamental and they are propositions which I could never
3
bring myself Jto accept".

Thus we find that the personal morality of a judge, his perso­

nal preferences and predisposious have to give way to the social
conditions. He has to yield to the social conditions and social
and political mores of the society. If he does not dolthis, the
instability in the judicial process creeps into. Judges and admini­
strators are not at liberty to persue a free floating jurisprudence.
If it is done, there will be no judicial element in that. We have
to remember the famous lines of justice. [Link] that, "It is
when a judiciary, with life tenure, seeks to write its own social

1. Freedom and Reason, 1963, p.94.

2. (1961) A.C. 290.
3. Parker v The Queen, 111, C.L.R. 610 at 632.
 212

and economic creed into the charter that instability is created".

Alexander Bickel thus requires from a judge to search a real fun­
ction of a judge, "Which can be so exercised as to be acceptable

in a society that generally shares Judge Hand’s satisfaction in a

"sense of common venture", which will be effective when needed and
whose discharge by the courts will not lower the quality of the
other departments' performance by denuding them of the dignity and
burden of their own responsibility". Professor Summers is of the
view that judges have to keep in mind the good social goal and their
right reason must "derive its justificatory force not from predict­
ed goal serving effects of the decision it supports, but from the
applicability of a sound socio-moral norm to a party's actions or
3
to the state of affairs resulting from those actions". Taking into
account all these views he suggests that, "Judges must rely on
4
moral intuition and exercise sensitive judgement". It is true that
the moral intuition of a judge has to be given importance, but as
for as the freedom from bias is concerned, his personnel conviction
may create a doubt and the mission to have an unbiased tribunal may
lose its meaning. A Judge is expected to create and maintain a
legal system which is reasonably clear and coherent. The clear and
coherent legal system cannot be achieved if an adjudicating person

pursues a mission of personal moral intuition, "Whenever the strict

5
rule of Precedent relaxes its grip". Thus Parke, J. laid down his

1. We the Judges (1966) p.430.

2. The Least Dangerous Branch (1962) p.24.
3. Two Types of Substantive Reasons; The Core of a Theory of
Common Law Justification (1978) 63,Corrnell Law Review,707 at 752.
4. Ibid at p.757.
5. Judicial Impartiality.98, L.Q.R. at 66.
 213

famous dictum in Mirehouse v Pennell1. He observed that, "We are

not at liberty to reject (those rules of law which we derive from

legal principles and judicial precedents) and to abandon all ana­
logy to them in (cases) to which they have not yet been judicially
applied, because we think that, the rules are not as convenient and
reasonable as we ourselves would have devised". This dictum has
□
still its force and it is, 'not out dated'. This is the only safe­
guide to judicial decisions. A judge has to safeguard always the
coherency and impartiality. In the name of conventional morality,
the ethos of small and eccentric groups are not to be pursued;
because the whole society will not accept it and the judge will be
termed as a biased judge in favour of that small community. "If
judges are not strictly bound to apply precedents analogically or
to adopt other lines of systematic reasoning which happen to point
strongly and unambiguously in a particular direction, they must,in
the last analysis, t>e free to disregard such systemic indicators
and to rely upon strongly felt personal values or standards instead
This freedom must never be invoked lightly, for lit tends to result
in a loss of symmetry, coherence and consistency in the law a,
heavy price to pay, for the promotion of the sense of justice of
4
some individual judge".

So far we have discussed that the personal preferences, pre­

judices, convictions, likings and dislikings of the judges, do play
an important role in the decisional process, and that this aspect

1. (1832) 8 Bing. 490.

2. Ibid at 515.
3. Per Lord Hodson in Shaw v D.P.P. (1962) A.C. 220 at 293.
4. Supra Note 1, at p.67.
 214

engender the concept of bias. We have also said that these personal
subconscious and psychological elements must be sacrificed on the
altar of the conventional morality of the society which is shared
by the majority, if not by all of the members. The judges must be
careful in making the decisions. Professor John Hart Ely, is of
the view that the identification with the social norms and values
is not the function of the judge but is the function of the elected
representative. If the judges remember this, they will not be biased.
He says that, "Obviously our elected representatives are the last
persons we should trust with identification of either of these sit­
uations. Appointed judges, however, are comparative outsiders in
our governmental system, and need worry about continuance in office
only very obliquely. This does not give them some special pipeline
to the genuine values of the .... people: in fact it goes far to
ensure that they won't have one. It does, however, put them in a
position objectively to assess claims-though no one could suppose
the evaluation won't be full of judgement calls- that either by
clogging the channels of change or by acting as accessories to
majority tyranny, our elected representatives in fact are not repr­
esenting the interests of those whom the system presupposes they
are"}

It is true that the judges should not cross their limits but
the last sentence of Prof. Ely makes it clear that they will have
to be entrusted with the task of assessing the claims, and it is
here that a judge's role becomes critical. He has to take care that

1. Democracy and Distruct, 1980, p.103.

 215

he should not be suspected to be biased, he has also to take care

that he does not fail in the adjudicating process which is the most
important element in the life of the judges. We cannot agree fully
with the learned Professor that judges are to be kept aloof from
the conventional morality of the society and that only elected
representative are the real authority of assessment. Our whole
purpose is to get an assessment from an unbiased person. There is
not £ material difference between the classes of the judges and
the legislatures. Many of them share the same morality of the soci­
ety. Since judges aretrained in the decisional process, their asse­
ssment has a greater chance of impartiality and disinterestedness.
Their profession compells them to be more dispassionate than the

legislatures. In this context Professor A. Bickel’s observation

bears more importance. He says that, "The environment in which legi­
slators function makes difficult a bias-free perspective. It is
often hard for law makers to resist pressure from their constituents
who react to particular events (a brutal murder, for instance) with

a passion that conflicts with common morality".

The judges are to follow certain standards, which the others

may not follow. The standards of the judges are, "Framed in neutral
terms, like the importance of a question or a conflict of decision.
Only the maintenance and improvement of sach standards, and ofcourse,
their faithful application, can I say with deference, protect the
court against the danger of the imputation of a bias favouring
2
claims of one kind or another in the granting or denial of review".

1. The Last Dangerous Branch, 1962, p.249.

2. Towards Neutral Principles of Constitutional Law,
Herbert Wechsler,73, H.L.R. p.l at 10.
 216

Judges may have their own philosophical choices but they must
fight, "The battle on wider fronts than that of constitutional
interpretations, the man who simply lets his judgement turn on the
immediate result may not, however realise that his position implies
that courts are free to function as naked power organ, that it can
imply affirmation to regard them as courts of law". The learned
author suggests that, "The courts have both the title and the duty
when a case is properly put before them, to review the actions, of
other branches in the light of constitutional provisions, even
though the action involves values, choices as invariably action
does. In doing so, however they are bound to function otherwise
than as a naked power organ, they participate as courts of law.
This calls for facing how determination of this kind can be assent­
ed to, have any legal quality.... They are entirely principled. A
principled decision is one that rests on reason with respect to all
the issues in the case, reasons that in their generality and their
2
neutrality transcend any immediate result that is involved".

Before we analyse the other aspects of the psychological ele­

ment in the concept of bias, one point is made very clear here. We
do not mean that psychological, subconscious or unconscious impuls­
es are the only factors that go bo play an important role in the
process of decision making. If we emphasize this element more than
what is necessary, we may ignore the importance of the standards,
objectivity, consistency, truth and justice. These are the normative

1. Ibid at p.12.
2. Ibid at p.19.
 217

legal concepts to which every judge has to adhere to. The over
emphasis of the psychological self awareness may erode the confi­
dence in the judges and the judicial process. 'Judith Shklar
*
gives a very gloomy description of this state of affair in judici­
al field. He writes that# "Man has become a foreigner wandering#
aimlessly around unknown territory. The world, both historical and
natural, have become meaningless. The relevance of all social thou­
ght and action becomes doubtful in the face of a human situation
in which nothing is certain but the individual's reaction to exter­
nal world and his need to give expression to his meaningless inner
i
conditions".

We do not argue here that personal predilections of a judge

renders him incapable of giving a judgement in a neutral or detach­
ed manner. People have faith in the decency and capability of the
decision maker from the very beginning of the civilisation. Hence,
it cannot be said that judges are conservative and their judicial
attitude of mind is ill adapted to the solution of problem which
require striking out along new paths.

It is natural that a man should think in the terms of society

with which he is familiar. Judges only show their familiarity with
the society, they do nothing more than that. We must not forget
that they have to perform a very delicate task. Carl [Link]
thus points out that, "Increasing sophistication concerning all

1. After Utopia (1967) p.17

 218

rationalisations and the emphasis on semantics as a ’’tyranny of

words" have tended to produce a facile cynicism concerning the
judicial process. Wisecracks about the judge at the breakfast table
are all .tight, for they call attention to the human failings of

judges. But we can yet appreciate the significance and values of

this process, even though we are no longer able to consider the
tentative "hypotheses" or generalisations contained in legal judge­
ment as eternal truths. Such generalisations may be as important
and influential as absolute and immutable laws once were. And even
though we appreciate the irrational forces which affect judicial
conduct, "the traditional beliefs, acquired convictions, and the
deep-rooted prejudices" which mould the judge's interpretations of
the law, we continue to realise the essential service which is rend­
ered by the man who struggles to find the just decision in the
light of all the available facts and rules. For even if the fabric
of the law be considered a huge web of effective make-believe, the
life of Jthe community and the maintenance of government are depend-
i
ent upon it".

Our judges, therefore, need our respect and sympathy and not
our hatred and ill advised criticism. In this world it will be very
difficult to get a judge who is completely free from the personal
predispositions. Such persons, are the persons of mythological

stories•

1. Constitutional Government and Democracy (1966),p.106.

 219

We must remember the following important lines of Professor

Lone Fuller. He says that, "It would be folly to suppose that deci­

sion of such a judge or arbitrator could properly be viewed as the

near expression of his personal predilections. From the very begi­
nning of his judicial office, it would be apparent to him that the
nature of his task imposed certain limitations on him. If he knew
anything of human nature, he would know that his decisions would
come to be looked on as precedents.... He would forsee that there
would emerge from his treatment of individual cases a body of rules,
and that the community would tend in some degree to adjust itself
to those rules. He would realise that it was his responsibility to
see that his decisions were right-right for the group, right in the
light of group's purposes and the things that its members sought to
achieve through common efforts. Such as judge would find himself
driven into an attempt to discover the natural principles underly­
ing group life, so ithat his decisions might conform to Ithem. He
would properly feel that he, no less than the engineers and carpent­
ers and cooks of the company, was faced with the task of mastering
of segment of reality and of discovering and utilizing its regular­
ities for the benefit of group The emotional attitude with
which he approached histask, would not be that of one doing obei­
sance before an altar, but more like that of a cook trying to find
the secret of flaky piecrust or of an engineer trying to devise
means of bridging a revine"J Thus it is the training and the profe­

ssional habits that compel a judge to lay aside his personal or

1. Reason and Fiat in Case Law, 59, H.L.R. 376 at 378-79

 220

private views. Mr. Justice Frank Furter has rightly observed that,
"The judicial process demands that a judge moves within the frame
work of relevant legal rule 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 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". Thus a general observation cannot be
made that subconscious influence or feeling is the only chief factor
that decides their mode of judgement to be pronounced by a judge.
Judges are professional judges. They are accustomed to weighing
evidence brought before them. Public eyes are there to evaluate
their work and the fear of public criticism and danger of lowering
their dignity in the society as a whole do play more important role
than the subconscious feeling of judges in the decisional process.
The judges know it very well ithat if they pronounced a judgement
which reflects biased feeling their integrity in the society will
be doubted and no judge would like to lead a dissoluted life.
Justice unbiased and impartial is related to our fundamental atti­
tude of consciousness. This objective consciousness becomes more
important than the subjective consciousness in the decision making

1. Public Utilities Commission v Pollak, 343, U.S. 451 at 466

 221

process. Thus Giorgio Delvecchio declares that, "This mode of consc­

iousness corresponds to our deepest nature, to a true and necessary
vocation of our being, it has not only a theoreticalvalue as a form

of the intellect but also a practical value, since it expresses an

absolute requirement which lies at the base of one of the essential
aspects of Ethics. Psychologically, it proclaims itself not only as
an idea but as an imperious and irrepresible sentiment, but the idea
and the sentiment both have the same root and they may with equal
propriety be termed the idea and the sentiment 'of justice', for
justice is the true and proper name of the fundamental mode of cons­
ciousness which we have been describing.1

It is, therefore, the task of our inner conscious that compels

us to be just, honest and moral and that is why it has been said
that they, "Must in the nature of things be very careful to be cons­
istent, lest the community feel themselves subjected to quite arbi-
2
trary rulings". The judges are, really spealing, representatives
of the community's beliefs as to what is just in a more real and
universal sense. By their very nature they perform the judicial
functions in a detached manner to a large extent.

In the trial of Adolph ^ichmann at Jerusalem, involving an

alleged Nazi mass murder, it was alleged by Dr. Robert Servatues,
the attorney of Eichmann, that since Jews were the only victims of
Nazi mass murder, it would be impossible for a Jewish judge to be

1. Justice, ed.A.H. Campbell, [Link] Guthrie Edinburgh,1952.

, pp. 80-81.
2. Garl. J. Friedrich (Supra p.23, note 1 at p. 230).
 222

unbiased and impartial. Moshe Laldau, the presiding judge gave a

very convincing reply. He said that, "When a court sits in judgment,
the judges who compose it, are human beings, are flesh and blood,
with feelings and senses, but they are obliged by the law to restr-
ain those feelings and senses". Referring to the subconscious feel­
ing of the Jews about the horrors of Nazies, the learned judge obs­
erved that, "It cannot be denied that the memory of Nazi holocaust
stirs every Jew, but while this case is being tried before us, it
will be our duty to restrain these feelings and this duty we shall
2 3
honour". Likewise in Berger v United States the trial judge Landis
used certain harsh words about German for their espionage activities
and had said that "Their hearts are reeking with disloyalty. If any­
body has said anything worse about the Germans than I have I would
4
like to know it so I can use it". It was alleged that trial judge
was biased against Germans. Refuting this the trial judge observed
that, "One must have a very judicial mind, indeed, not to be preju-
5
diced against the German Americans in this country". Mr. Justice
McReynolds very rightly observed that, "It was not the purpose of
Congress to empower unscrupulous defendents, seeking escape from
merited punishment, to remove a judge soley because he had emphati­
cally condemned domestic enemies in time of national danger. The
personal concern of the judge in matters of this kind is indeed
small, but the concern of the public is very great"

1. Eichmann in Jerusalem H. Arendt 1965, p. 208.

2. Ibit at p. 209.
3. 255 U.S. 22.
4. Ibid at p. 28.
5. Ibid at
6. Ibid at p. 44.
 223

IMPOSSIBILITY OF ABSOLUTE IMPARTIALITY

We must remember this basic fact that certain issues are such
as are deeply rooted in our 'Sanskar' or in the subconscious mind
of a person. Reason fails to control the subconscious influence of
the feeling of which it is unaware. There cannot be a total absence
of preconstruction because that condition is unknown to human being.
The straight line of impartiality is not possible. Such assertions
are mythological only. "The most that we may reasonably ask of the
judicial mind is to make a special effort to be aware of the exist­
ence of leanings or preconceptions and to ignore them whenever
possible. Human behaviour shaped by preconception results in giving
some particular judgements# but that should not be cause for a
1
crisis of confidence in the court".

The SANSKARS, subconscious notions and habits are part and

parcel of the human life. They disappear only after death. Home­
time in the next birth also they are apparent in the behaviour of
the man. Thus ’Magh'# one of the greatest Sanskrit Poets, has said.
that# "The habits and other preconception of a man continue to be
there in the man after his death and in his next birth. He says,
"A man does not leave his habits and preconceptions in the next
2
birth also".

1. Edward G. Burge. Meeting the Challenge: Rethinking judicial

Disqualification# 69# Californea Law Review. 1445 at 1478(1981)
2. Shishupal Badh 1/72.
 224

A man thus, can be completely dispassionate and in different only

after his death. Kenneth Burke, thus, observes that, "To live is
to have a vocation, and to have a vocation is to Jhave an ethics or
scheme of values, and to Jhave a scheme of value is to have a point
of view, and to have a point of view is to have a prejudice or
1
bias". We cannot imagine a man without having a preconception of
any short. If a man is really found having no preconceptions, he
is either an Indian saint having attained oneness with 'Brahm' or
he is a feeble minded person. 'An open mind, in the sense of a mind
containing no preconception whatever, would be a mind incapable of
learning anything, would be that of an utterly emotionless human
being, corresponding roughly to the psychiatrist's description of
2
the feeble minded'. The human society cannot be without certain
established attitudes, some very lofty posulates. A judge has to
take into account these cherished values of the society. 'Such
social preconceptions, the "value judgements" which members of any
given society take for granted and use as the unspoken axioms of
thinking, find their way into that society's legal system, .become
3
what has been termed "the valuation system of the law". Justice
Jerome N. Frank of the second circuits is of the view that, "The
judge in our society owes a duty to act in accordance with those
basic predilections inherent in our legal system (although of course,
he has the right, at times, to urge that some of them be modified
or abandoned),. The standard of dispassionateness obviously does

1. Permanence and Change (1936) p.329.

2. Allen Johnson, The Historian and Historical Evidence (1926),
pp. 159-60. (
3. Wurzel, Methods of Juridical Thinking, The Science of Legal
Method, 1917, p. 286.
 225

not require the judge to rid himself of the unconscious influence

of such social attitudes" J- The social values, with which, a judge

associates himself, also creates a special leaning of the mind of

a judge and an unique personal prejudice may crop up, Jwhich may
interfere with his fairness at a trial. Josiah Royee, thus observes
that, "Oddities of features or of complexion, slight physical
variations from the customary, a strange dress, a scar, a too
steady look, a limp, a loud or deep voice, any of these pecularit-
ies may be, to one, an object of fascinated curiousity to another ,
2
an intense irritation, an object of violent antipathy".

What we stress here is, the fact, that judicial mind is

subject to the laws of psychology like any other mind. "When the
judge assumes the ermine", wrote Lord Macmillan, "He does not divest
himself of humanity. He has sworn to do justice to all men without
fear or favour, but the impartiality which is thenoble hallmark of
our Benchdes not imply that the judge’s mind has become a mere
machine to turn out decrees; the judge's mind remains a human instr­
ument working as do other minds, though no doubt on specialised
lines and often characterised by individual traits of personality,
3
engaging or the reverse". Thus if a suitor wears a overcoat made
of wolf skins, a judge in U.S.A, becomes angry and threatens him
with imprisonment. Simply because the said judge is personally
prejudiced against the wearer of the overcoat made of wolf skin.

1. In ReJ.P. Linahan, 138, Federal Reporter, 2nd Series,650 at 652.

2. Race Questions, Provincialism and other American Problems,
1908, pp. 47-52.
3. Law and other Things, 1937, p. 202.
 226

This prejudice is to be tolerated if i/t does not interfere with a

"safe administration of the law"The story goes about a judge in
our Supreme Court, whoJhas retd red, that in his early forties he
had been forcibly evicted by his land lord from his premises. His
subconscious mind developed a prejudice against the land lords and
a sympathy for the tenants. The lawyers knew this fact and whenever
a case, concerning the tenants, went to the court, they managed to
put before the said judge who had the hidden sympathy for this tena­
nts. However, there is no proof to the affect that his hidden bias
for the tenants, interfered in the administration of law. Likewise,
in Varanasi District there were judges who based to become very
irritated whenever a suitor or a lawyer appeard before him
having betal leaf in his mouth. He immediately usedto ask them to
go out of Jthe court and to come back only after washing their mouths.
These are the natural instincts of the man. Some short of prejudice

remains in the mind of a judge and it is both part of wisdom and

honesty that one must recognise the existence of such prejudices.

It is based on that subconscious bias of a judge which again is

based on his own experience of life and every body knows that the
life of law is experience and not logic. [Link] thus opines that,
"The conscientious judge will as far as possible, make himself
aware of his biases of this character, and, by that very self know­
ledge, nullify their effect. Much harm is done by the myth that,
merely by putting on a black robe and taking the oath of office as

1. In exparty Chase. 43, Ala. p. 303

 227

a judge, a man ceases to be human and strips himself of all pre­

dilections, becomes a passionless thinking machine. The concealment
of the human element in the judicial process allows that element
to operate in an exaggerated manner; the sunlight of awareness has
an antiseptic effect on prejudices. Freely avowing that he is a
human being, the judge can and should, through self scrutiny,
prevent the operation of this class of biases. This self knowledge
is needed in a judge because he is peculiarly exposed to emotional
influences".

Thus, it is the sun light of awareness of the prejudices and

bias that may prevent a judge from becoming a prey to his subconsci­
ous biases. Professor ’Wigmore' is of Jthe view that, "The court room
is a place of surging emotions, the parties are keyed up to the
contest, often in open defiance; and the topics at issue are often
calculated to stir up the sympathy, prejudice, or ridicule of the
2
tribunal". It is, therefore, essential for the sake of securing
justice that biases are recognised and attempts are made to ignore
their role in decision making. It is wrong to conclude that by sup-
ressing certain unspoken factors in decision making will tend to
reduce the influence of these factors. When we begin to recognise
our preconceptions and prejudices, we are inclined to think in
calmer sense that either our prejudices are untrue or they are
partially ture. We may conclude after a thoughful moment, that our

1. In J.P. Linahan, 138 Second 650 at 652-53.

2. Principles of Judicial Proof, 2nd Edn. 1931, p.960.
 228

conviction are mere accidental and not based on true facts. If a

man begins to think like, that he may escape from the threat of
biases and prejudices. Herbert Spencer has rightly observed that,
"The only reasonable hope is that here and there one may be led,in
calmer moments to remember how largely his beliefs about public
matters have been made for him by circumstances and how probable it
is that they are either untrue or partially true. When he reflects
on the doubtfulness of the evidence which he generalises, collected
haphazardly from a narrow area - when he counts up the perverting
sentiments fostered in him by education, country, class, party,
creed, when observing those around, he sees that from either evide­
nce selected to gratify sentiments partially unlike his own, there
result unlike views, he may occassionally recollect how largely mere
accidents have determined his convictions. Recollecting this, he
may be induced to hold these convictions not quite so strongly; may
see the need for criticism of them with a view to revision, and,
above all, may be somewhat less eager to act in pursuance of them"
The [Link] Lourt has emphasized the need for recognition of
the prejudices so that one may not be influenced by them. Mr. Justice
2
Reed observed in United States v American Trucking Associations ,
that obviously there is a danger that the court conclusion as to
legislative purpose will be unconsciously influenced by the judge's
own view or by factors not considered by the enacting body. A lively
appreciation of the danger is the best assurance of escape from its

1. Study of Sociology (1873) p.356-57.

2. 310 U.S. 334.
 229

threat". In this connection justice Beg's observations bears more

importants. He says that, "Judges must, no doubt, be impartial and
independent. They cannot, in a period of intensified socio-economic
conflicts, either become tools of any vested interests, or function,
from the bench, as zealous reformers propagating a particular course
Nevertheless, they cannot be expected to have no notions whatsoever
of their own, or to have completely blank minds on important quest­
ions indicated above which, though related to law, really fall out­
side the realm of law. They cannot dwell in ivory towers or confine
their processes of thinking in some hermetically sealed chambers
of purely legal logic artificially cut off from the needs of life
around to which law must respond. Their differing individual philo­
sophies, outlooks and attitudes on vital questions, resulting from
differences in temperament, education, tradition, training, intere­
sts and experiences in life, will often determine their honest
choices between two or more reasonably possible interpretations of
such words as "amendment" or "constituent power" in the constitu-
2
tion".

Thus it is seen that a man cannot be fully free from his

’Sanskar' and hidden [Link] aman is brought up in an
environment, a particular 'Sanskar' is inculcated in his mind, he
never frees himself from that. These preconception and 'Sanskars'
are like the, "Sketches that are made on the earthen cup or pots
or pitchers. They remain there till these cups, pots and pitchers

1. Ibid at 544.
2. Smt. Indira Nehru Gandhi v Raj Narayan (1975) S.C.C. Supp.
1, p. 205, para 541.
 230

remain and they only disappear when these things also are perished
or broken. Lidewise, "the Sanskars that are inculcated in the minds
of the person from his childhood remain till the death of that
person"?

It is, therefore, apparent that the hidden biases and Sanskars

will remain till the death of person. All that is necessary is, to
be careful in the decision making process. A judge must be very
careful not to reshape the real facts by utilising his own attitudes
towards life. Edmond N. Cahn says that, "There is little reason to
fear that a judge relying on his own deliberate reflections and
call of his own conscience, will apply erratic, caparicious, or
idiosyncratic, moral standards. Our judges are products of our
society, and as Professor Gray noted, they will generally think
alongwith the beliefs
(
of some substantial segment of the citegenery.
What is new and special, in connection with naturalisation, is the
height end duty to judge after most painstaking investigations of
all the circumstances, after sympathetic understanding of unique
individual motives, and after careful criticism of judges' own
customary biases. Generally spaking, it is the best and finest of
2
juoges who afflict themselves with the whips of doub,t".

1. Hitopadesh, 1/8.
2. 51, Columbia Law Review, 1951,
Authority and Responsibility, 838 at 850-51.
 231

It is, therefore, desirable for a judge to abstain himself

from the bench, if he feels that because of his psychological
conviction, he cannot remain in different from the point to be
decided by the said bench. His abstaining does not lower his pres­
tige in the society. His personal motives are not assessed, he is
not accused of any personal malice "his integrity is not in doubt.
He remains in the eyes of the society an ideal judge. He commands
the respect of the society because of his openness. His disqualifi­
cation in the context is based on a general presumption, a law of
1
inevitable prejudice rather than on any specific finding on bias".
A judge must always remember the famous words of Lord Esher when
he observed in 1894 that "not only must (judges) be not [Link]
ought not to act as judges in a matter where the circumstances are
such that people-not necessarily reasonable people, but many people-
2
would suspect them of being biased". Thus, the best course for a
judge in such cases, is to recuse himself from the bench. He should
not sit there if a bias is apparently presumed in him. Justice
Frankfurtur had been a victim of the programmes transmitted by
Radio in passenger vehicles. He did not like it. Psychologically
he was against this programme. When the case came before the court
he withdraw himself from the bench, which considered the public
utility commission's case. In that case the U.S. Supreme Court held
that, the transmission of a Radio programme through receivers and
loudspeakers in passengers vehicles of a street railway company in

1. Thomas M. Franck, [Link]., at 1223.

2. Eckersley v Mercy Docks and Harbour (1894)
2 Q.B. 667 at 671.
 232

the district of Columbia was not violative of the free speech

guarantee of the first amendment, where the programme did not
interfere substantially with the conversations of the passengers
and there was no substantial claim that the programme had been used
for objectionable propaganda, even though they included a few anou-
ncement, explainatory and commendatory of the carrier's own services.
Justice Frankfurtur was strongly against it. He was afraid of the
fact that his hidden dislikes of the programme might influence his
decision making in a subconscious way, so he decided to withdraw
stating that, "When there is ground for believing that such uncon­
scious feeling may operate in the ultimate judgment or may not un­
fairly lead others to believe, they are operating, judges recuse
themselves. They do not sit in the judgement. They do this for a
variety of reasons. The guiding consideration is that the admini­
stration of justice should reasonably appear to be disinterested
as well as be so in fact".

Franck has rightly observed that, "Where the social history

of the decision maker, his animosities or friendship, his material
interest, his prior professional connections, raise a reasonable
presumption of bias, he should be disqualified from deciding the
dispute infavour of some one not linder such suspicion. In addition
since no man is devoid of all kinds of bias, the impartial decision
maker should be expected to conditioning by a balance of influences,
so [Link] to make him responsive to all but not the captive

1. Public Utilities Commission v Pollak, 343 U.S. 451 at 467

 233

of money'.' It is thus conditioning the balance of influences, that

is more important in the decisional process, because no one is com­
pletely free from all kinds of biases. Again and again we emphasize
that the personal characteristic of a judge is not in itself incom­
patible with judicial impartiality. Professor Robson has very aptly
observed that, "In all civilised countries the judge must, infact,
possess certain conceptions of what is socially desirable, or at-
least acceptable, and his decisions, when occasion arises, must be
guided by those conceptions. In this sense judges are and must be
biased .... It is a simple fact that a man who had not a standard
of moral values which approximated broadly to the accepted opinions
of the day, who had no beliefs as to what is harmful to society and
what beneficial, who lhad no bias in favour of marriage as against
promiscous sexual relations, honesty as against deceit, truthfulness
as against lying, who did not think wealth better than poverty,
orthodox religion preferable to atheism, courage better than coward­
ice, constitutional government more desirable than anarchy, would
2
not be tolerated as a judge on the bench of any Western Country".

What a judge has to do is, not to be influenced by personal

I

prejudices in finding the facts of the cases. He has to form an

attitude towards the party. "He must do his best to ascertain their
motives, their biases, their dominating passions and interests,for
only so can he judge of the accuracy of their narrations. He must

1. Thomas M. Franck, [Link]., at 1247.

2. Justice and Administrative Law, Hird Mn. 1951,p.413.
 234

also shrewedly observed the stratagems of the opposing lawyers#

perceive their efforts to sway him by appeals to his predilections.

He must cannily penetrate through the surface of their remarks to

their realpurposes and motives. He has an official obligation to

become prejudiced in that sense. "Imparatiality is not gullibility.

disinterestedness does not mean child like innocence. If the judge

did not form judgements of the actors in those court house dramas

called trials, he could never render decisions. His findings of

fact may be erroneous, for, being human, he is not infallible; in­

deeds, a judge who purports to be super human is liklely to be

dominated by improper prejudices. When upper court judges on an

appeal decide that the findings of a trial judge are at fault beca­

use they correctly or incorrectly think those findings insufficien­

tly supported by relevant and competent evidence, that appellate

decision does not brand him as partial and unfair. When, his decis­

ion is reversed because of errors in his findings of fact or concl­

usions of law, the case comes back to his court for a further hear­

ing, he will not, if he is the kind of person entitled to hold

office as a judge, permit his previous decision in the case to

control him".

Thus, it is the personality and personal character of the

judge that ensure confidence in them. A judge has always to remem­

ber the famous proposition of Bacon that, "The place of justice is

a hallowed place and therefore not only the Bench, but the foot pace

1. In Re [Link], 138, F.2d. 650 at 653—54

 235

and precincts and purprise thereof ought to be preserved without

scandal and corruption"^ Public confidence demands that judges#free

from scandal and corruption evolve certain set of standards adequate

to enable them to guide their behaviour. If their behaviour creates

distrust in the judiciary as a whole# that will be# "The beginning

of the end of society, Bmash the present patterns of the institution#

2
rebuild it on a different bias but don't stop believing in it".

Professor K.C. Davis has rightly suggested that, "Judgment must of

course be guided by intellectual perception, not by emotion, perfor­

mance of judicial tasiks necessarily calls for integrity, character#

and ability. The administrator's belief in the cause he is further­

ing# even though that cause has won legislative approval# must not

overpower the recognition of competing interests. Sincere conviction

should not be so steadfast as to shut out inquiry and reexamination.

Belief must not be so unyielding as to smother the contributions

that alert practical administration may make to the moulding and re­

moulding of policy. And yet a dominant point of view or bias may

appropriately color all activities# inlcuding even the fact finding

3
function".

The juogesare the custodians of law. They are expected to be

as dispassionate as possible. In the context it must be remembered

that, "If, however, 'bias' and partiality be defined to mean the

total absence of preconcetptions in the mind of the judge, then no

one has ever had a fair trial and no one ever will. The human mind,

even at infancy, is no blank piece of paper, We are born with pre-

1. [Link], Works of Lord Bacon,1876,p.59.

2. Honore Balzac, quoted in [Link],Political Justice,1961
3. Administrative Law Treatise# 1958#chapter 12.p.138.
 236

dispositions; and the process of education, formal and informal,

creates attitudes in all men which affect them in judging situation,

attitudes which precede reasoning in particular instances and which

therefore, by definition, are prejudices, without acquired slant,

preconceptions, life could not go on. Hvery habit constitutes a

pre-judgement, were those prejudgements which we call habits absent

in any person, were he obliged to treat every event as an unprecede­

nted crisis presenting a wholly new problem he would go mad. Intere­

sts, points of view, preferences, are the essence of living. Only

death yields complete dispassionateness for such dispassionateness

signifies utter indifference".

We have belief in the conscience of judges in seeking to achi­

eve a rational course of ethical conduct. A judge also needs and

desires for the worldly pleasures and means of happiness. He does

not cease to be a man simply because he is a judge. John J. Parker

has thus observed that, "I am not one of those who think that a

man ceases to be a man and a citizen when he becomes a judge and

would have him retire from life as though hewere entering a monast­

ery To him much has been entrusted by the people. They have a

right to expect much of him, not only in the performance of his

judicial duty, but also in the way of intellectual leadership. A

judge will be a better judge if he is a good citizen and takes his

full part in bettering the life of the community in which he lives.

While he should not enter into political ontests, there is no

reason why he should not make his voice heard and his influence

1. In re J.P. Linahan. 138, F. 2d. 650 at 651-52.

 237

felt in any movement for the betterment of the race or the improve­

ment of the community. In the work of bar associations, on the boards

of educational, charitable and religious organisations, on public

occasions where his wisdom and guidance are needed by the people,

there is no reason why he should not play a full part of a leader

in our democracy"!

Judge Higgindotham has also observed the same when he said

that, "It would be a tragic day for the nation and the judiciary,

of a myopic vision of the judge's role should prevail, a vision

that required judges to refrain from participating in their churches,

2
in their non political community affairs, in their universities".

It is clear, therefore, that judges human behaviour should not

be made a cause for bias. There are good men, they continue to be

so. It is, no doubt, true that men of high stature, ability and

strong character do not prosper financially in the society. However,

this fact should not deter good men from sitting in the bench.

judge Irving R. Kaufman, the circuit judge, United States Courts of

Appeal for the second circuit says, "The better course, to my

mind, is to continue to choose good men, provide them with a body

of ethical standards to which they may repair and then, in all but
the obvious cases where perse treatment is justified, trust to the

character of tnose we have selected. I find myself in substantial

agreement with judge Edwards that the members of the judiciary with

1. The Judicial Office of the United States, 23,N.Y.U.L.Q. Rev.

2. *
Pennsylvania v Local Union of Operating Engineers, 388 F.
Supp. 155 at 181.
 2 38

whom I have come into contact in more than twenty years on the bench

are, on the whole, a sober and honest group, far removed from the

'Jackals’ at whom Procrustean limitations are usually directed. I

would suggest that it is more in keeping with the genius of our

judicial tradition to continue to treat our judges as 'lions' and

to expect them to submit more readily to ethical dialogues. There

are times when we need men who can feel and understand what goes

on in the world about them; we shall not find such men in a gray

'bureaucracy' divorced from all outside activities and interests.

And there are times, I might add, when we need men who are not affr-
1
aid to roar should the occasion demand it".

Thus the judges, adjudicatory officers and other persons con­

cerned with the decisional process, must conform to this eternal

principle that their hidden and unconscious or subconscious biases

do not interfere with their administration of justice. Their exper­

ience, responsibility, high character and the sense of public confi­

dence reposed in them, demand from them to be impartial and unbiased.

The word bias refers to the, "Mental attitude or disposition of the

judge towards a party to the litigation, and not to any views that
2
he may entertain regarding the subject matter involved". It is true
that a judge must always try to see, that he maintains a delicate

balance between his views and the impartiality and expectation, that

is needed in him. Only this will engender the puolic confidence in

him which is the most essential factor of the decision making process

1. Lions or Jackals, The Function of a Court of Judicial Ethics,

Law and Contemporary Problems, vol. 35, 1970, p.8.
2. Andrew v Agriculture Labour Relation Board, 28 ^al.3d. 781 at
790.
 239

Public confidence may not be defined in the broadest term but it

is one of those concepts that every one thinks that he understands

it. This aspect has to be kept in mind by the judges, that there

is no solid content upon which every body will agree and hence it

is the judge's duty to convince all and sundry that he has done his

job in an unbiased manner.

THE CONCEPT OF DE FACTO BIAS

The concept of defacto bias is a part of subjective bias. It

emerges from some characteristics of the judges themselves. This

bias is presumed in a judge because of the fact of his personal

status, profession, caste, colour and creed. Thus, it is generally

believed by the parties to the litigation, that if a judge belongs

to a particular caste, he would not be impartial, that he would

favour the party which belongs to his caste. This factor has eroded

the faith in the decisional process and baseless allegations have

been made against the judges on this basis. Fortunately the court

has not given importance to these allegations and it has failed to

get an important place in the disqualificationary law. Thus, in

Pennsylvania v Local Union of Operating Engineers1 the white defend­

ants moved a motion for refraining the trial judge from further

1. 388 F. Supp. 155

 240

participating in the case as the trial judge was a black and during

speech before inter-racial historian's association he had made some

thing about the injustices meted out to the blacks. In that case

a civil rights suit arose out of alleged racial discrimination in

employment in construction industry. Since judge Higginbotham had

made a speech amongst the blacks, he himself was a black, the white

defedants were suspicious that an unbiased judgment might not be

given by the black judge. Judge Higginbotham observed that the

theory of defacto bias had no place in the disqualifiestionary law.

Were it allowed so that non black defedants would successfully

challenge a black judge, the black plaintiff could use the same

theory to challenge any white judge assigned to the case. Such

simplistic allegations of bias would reduce the judicial system to

a shambles and rightfully it had been given short shift by judges

so challenged. The learned judge observed that, "So long as Jewish

judges preside over matters where Jewish and Gentile litigants

disagree, so long as protestant judges preside over matters where

protestants and catholic litigants disagree, so long as white judges

preside over matters where white and black litigants disagree, I

will preside over matters where black and white litigants disagree...

... If America is going to have a total rendezvous with justice so

that there can be full equality for blacks, other minorities, and

women, it is essential that the instict for double standard be comp­

letely exposed and hopefully throughanalysis, those elements of

irrationality can be ultimately eradicated"^

1. Ibid at p.181
 241

Again in Deal v Warner^ it was contended that since the presi­

ding officer had been anaval officer, he would not be impartial

and unbiased about non-navy personal because of his naval back­

ground. There is a defacto bias in him for navy personnel. The

court rejected this argument and it was observed that, "The fact

that one has been a naval officer does not disqualify him from
2
acting as a judge in cases involving naval service".' Our Supreme

Court has also expressed the same view in Dalpat Abasahebsolunke

3
v B.'S. Mahajan. In this case it was alleged that the two experts

in the selection committee were the teachers and guides of the appe

llant{' and they had shown favour to him. The court observed that,

experts on committee drawn from the teaching faculty were not dis­

qualified from being the member of selection committee on the

ground that they had to interview candidates who were at one or

the other time their students. Mr. Justice Sawant observed that,

"We are unable to understand as to how thefact that they were his

guides when the appellant was doing his [Link]. would influence their

decision in selecting him, or vitiate the selection made. They must

have been guides to many who had appeared for the interview. As

senior teachers in the Faculty in question, it is one of their

duties to guide the students. In fact, very often the experts on

the selection committees have to be drawn from the teaching faculty

and most of them have to interview candidates who were at one or

the other time their students. That cannot disqualify them from

being the members of the selection committees".4

1. 369 F. Supp.174.
2. Ibid at 178.
3. A.l.R. 1990, S.C. 434
4. Ibid at 438-39.
 242

Earlier in Dr. Keshav Ram Dal, ex-officiating Principal, Laj

Dat Rai P.G. College v U.P. Higher Education Service Commission,

1
Allahabad , it was argued that since the petitioner belonged to

Gadariya (Shepherd) caste and the six examiners belonged to higher

caste, they selected all the eight persons belonging to higher

caste and that they were biased against the petitioner as he was

of the lower caste. It was prayed that a defacto bias be inferred

in them because of their caste characteristices.

The Supreme Court refused, and it refused rightly, to infer

bias from this fact and held that, "There were six examiners of the

interviewing board and it is too much to think that the board colle­

ctively decided not to select the petitioner for ithe sole reason

that he belonged to an inferior caste and they belonged to higher

caste".

It is to be remembered that any allegation against a judge on

this ground is likely to affect the very foundations of judicial

integrity, honesty, standards, objectivity, consistency, truth and

sense of justice. The concept of defacto bias must be discarded.

Afterall, we have to repose our faith and confidence in some organ

of the government, judiciary, by its nature, temprament, training

and sense of authority and responsibility, is the best suited organ.

In some Western countries, specially in U.S.A, the surveys are being

conducted about the decisional process of the white and black judges,

male and female judges^conservative and so called radical judges. In

1. (1986) 1 S.C.J. 253.

2. Ibid at 254.
 243

India also there is a demand that since all the judges of the

Supreme Court are of Urban background, there is a defacto bias in

them for the urban population, and they do not have sympathy for

the rural people. To get an unbiased judgement for rural people,the

Supreme Court should be packed with the rural judges. These are the

biases which are used against the judges without taking into account

their contributions to the decisional process. A careful perusal of

the judgements given by our courts concerning the matters of social

legislation, rural upliftment and other measures proposed to be

taken for the welfare of the weaker sections of the society, clearly

shows that our judges have not been a hindrance in the path of these
from
governmental activities. Simply because they have not come / rural
be
areas, it should not be presumed that they will^/biased against the

rural folk.

In a male dominated society, the women have started talking of

a male biased outlook of the judges. They are of the view that since

male judges, managers and other adjudicatory officers, always favour­

men, the women will not get an unbiased judgment or decision by

males. They allege that Decause of their unconscious gender bias

the male will have a defacto bias against them. This unconscious

gender bias operates, at three levels. The first is the proto types,

i.e. the images associated with members of a particular occupation,

second schema, the personal characteristics and situational factors

that are used to explain conduct, third scripts definitions of

appropriate behaviour in a given situation. "Unconscious gender

 244

prejudices affect not only the evaluation of individual performance

but also affects the performance as both, experimental and longitu­

dinal studies have repeatedly demonstrated, low expectations achiev­

ement frequently become self-fulfilling prophecies" 2" Women complain

that the legitimacy of standards constructed on the basis of a male

norm also make the women a prey of defacto bias. Thus, Catharine

Mackinnon writes that, "There is a politics to framing the equality

debate in terms of whether women should be treated the same as or

different from men. Under the sameness standard, women are measured

according to our correspondence with man, our equality judged by

our proximity to his measure. Under the difference standard, we are

measured according to our lack of correspondence with him, our woma­

nhood judged by our distance from his measure. Gender neutrality is

thus simply the male standard, and the special protection rule is

simply the female standard, but do not be deceived, masculinity, or

2
maleness, is the referent for both". The learned author again says

the same thing in another context. She writes that, "The only quest­

ion for litigation is whether the policy or practice in question

integrally contributes to the maintenance of an underclass or a

deprived position because of gender status. The disadvantage which

constitutes the injury of discrimination is not the failure to be

treated 'without regard to' one's sex.... The unfairness lies in

being deprived because of being a woman or a man, a deprivation

given meaning in the social context of the dominance or preference

3
of one sex over the other".

1, Professional women,40 Stanford Law Review,1988,p.1189.

2. Difference and dominance: Un sex discrimination, in feminism
unmodified discourses on life and law: 1987, pp. 32-34
[Link] Harassment of Working Women,1979,pp.117-i8.
 245

Echoing the same sentiments, Maxine N. Eichner writes that,

"Courts often fail fully to enforce this prohibition when male

biased standards are at issue. Courts either limit their inquiry

to disparate treatment doctrine, which can neither identify nor

eliminate these biases, or they apply disparate impact doctrine

and defer to the employer’s characterisation of the job. In neither

case do courts challenge the legitimacy of the job’s requirements

themselves".

It must be remembered, at the very beginning of the judicial

process, that the concept of defacto bias must not Jhave any place

in the decisional process. If the women impute biases in men because

of the characteristics of the male members of the society, the men

will also start thinking so. In fact, judge Motley's position was

challenged on this very ground that she was a women and that she

would not be fair to the male defendants. It was a suit about sex

discrimination against a law firm. The U.S. Supreme Court rejected

this notion of de facto bias and conducted that a bias cannot be

presumed in a judge because of his or her gender in Blank v Sullivan

2
and Cromwell. In India also there is a growing feeling among the

women that they will not get a fair and unbiased judgement from the

courts till they are dominated by male members. In a [Link]

with Ms. Justice Fatima Beevi of the Supreme Court, the women inter­

viewer asked for about the changed atmosphere in the Supreme Court
in the favour of woman, specially after her induction to the apex

1. Getting Women Work that Isn't Women's Work: Challenging Gender

Biases in the Workplace Under Title VII. 97,The Zale Journal
1357 at 1404 (1988).
2. 418 F. Supp.,p.l
 246

court. She was of the view that the woman would get better treat­

ment in divorce cases, sexual exploitation and other family matters.

The learned judge cautioned the interviewer not to impute de facto

biases to the judges. Judges decide the matter in a calm and deta­

ched atmosphere, they are concerned with the welfare of the society

and that the family relation depends upon the mutual trust and conf­

idence of the family members. The judges very much know it, and they

do not want to destroy the family system by adhering to biases of

one or another kinds.

In imputing biases to the judges,we must avoid the embrassing

accusation. A challenger has got no right to use hisright to challe­

nge the judges on the grounds of bias in an arbitrary and caprici­

ous manner. Every one must remember that the state will be able to

achieve its dignity not through exercise of power and practice but

through the exercise of justice. Judges are the only instrument

through whom the extercise of justice is fairly possible. If we

begin to timpute such biases, it will shake the very foundation of

society of which both judges and challenger are the members. In this

connection, we must remember Tom. C. Clark's, the former associate

justice of the United States Supreme court, advice. He wrote that,

"The judiciary is often said to be the foundation of our free

society. It is to be hoped that we will declare a moratorium on

kicking the judges around. Let us urge that all good men and women

come to the courts’ aid in shoring up public confidence not only

in the courts themselves but in the people who operate them. While
 247

I verily believe that one who is elevated, to judicial office is

usually grounded in the fundamental precepts of good judicial cond­

uct and needs no reminder of what is right and what is wrong; never­

theless, I urge the adoptation by the courts both federal and state
of a clear and concise statement of the permissible bounds of judic­
ial conduct. The principles embodied in such a code would aid in
the recovery of public respect and confidence in the court that is
so necessary in a stable society. I am hopeful that before too long

the ABA will approve and promulgate its final draft of Standards of

Judicial Conduct and the courts-federal and state will follow with
speed in the adoption of clear and concise canons of judicial dep­

ortment based thereon, together with practical and effective proced­

ures for their enforcement" J- In every democratic system, governed

by rule of law, the judiciary is the best guarantor of the constitu­

tional ethics, conventional morality and individual liberty. They

are human beings and are subject to trial and error. By their expe­
riences they have acquired wisdom and we have to respect and not to
reject that wisdom. Their dedication to profession, their prestige

and dignity, the impact of society and other factors; restrain them

from being an easy prey to the de facto bias. Bvery body, who has

any concern for judicial impartiality, must give accord to this

view.

1. Judicial Self Regulatidn-its Potential,

Law and Contemporary Problem, 35,1970, p.37 at 42.
 248

THE OPINION BIAS OF THE JUDGE

Judges, as other members of the society, have some definite

opinion about the matters or the policy involved in the controversy.

Our predisposition, subtle prejudice, 'Sanskar', play an important

role in the decisional process. These elements cannot be denied in

that context. Absolute absence of predispostion in the mind of a

judge is unimaginable. We are born with disposition, brought up with

them and ultimately die with them. Only death brings an end to these

predispositions and as we have seen in the preceding chapter, in the

next birth also, they have their appearance.

Justice B.N. Cardozo has written that, "The great tides and

currents which engulf the rest of men do not turn aside in their

course and pass judges by". Professor Ross Cranston opined that,

"Judges are not subject to the same pressures as either legislators

or civil servants, because by tradition they isolate themselves on

appointment from business and political connections . in particular

disputes the judicial process is such that representations are chall­

enged in a formalised manner in open court. By contrast legislators

and civil servants are accessible to pressure from highly organised

interests, most of which operate away from the puolic gaze. Despite

their comparatively isolated position, judges are still subject to

influences in their decision making, even if these are only the

result of their education, their background and their past associa-

2
tions".

1. The Nature of the Judicial Process, 1921, p.168.

2. Disgualification of Judges for Interest, Association or
Opinion, Public Law, 1979, 237 at 252.
 249

Professor Griffith is also of the view that judges cannot

remain compietly neutral and they are influenced by certain common

characteristics and opinion, as a result of their background, their

training and their persuit of professional life as barristers. There

is some variation. "For example, some judges are more biased than

others against group, like demonstrators or trade unions or against

activity like the occupation of property by the homeless". He elab­

orates that the protection of certain values and institutions; the

interest of the state and the preservation of the law and. order,the

protection of property are some of the common opinions that they

share. They also promote, "Certain political views normally associ-

2
ated with the conservative party".

Judges are not expected to engage in public controversy but

they cannot be denied to have some preconceived ideas about a piece

of litigation or to express their views on civic matters in private

conversation. However, if they strongly feel about the matter, they

must recuse themselves from the bench so that their deep convictions

to particular view may not interfere the administration of justice.

In this connection, the opinion of District Judge Merrill Otis of

the Western District of Missouri, which he expressed in United States

v Buck3, is of much relevance. He said that, "I have heard it said

that a judge should fade away like a vanishing dream at the moment

he discovers some litigant does not like the color of his hair or

the pace of his pulse. If, for example, one indicated as a horse
1. The Politics of Judiciary,”p. 31.
2. Ibid at p. 195.
3. 18 F. Supp. 827.
 250

thief is about to be tried for practicing his profession without a

licence and protests that he desires, as his judge, the one who has
not been so indiscreet as to suggest he thinks stealing horses of

doubtful morality, the judge should say; 'why, of course, my dear

sir, I yield to your wishes. You shall judge as to who shall be

your judge. I realise that one prejudiced against horse stealing

must be prejudiced against a man charged with stealing horses.'Such

things have been said, but not by those who think. The father of

such a conception of the duty of the judge is the fundamental error

that the judge is but a referee at a game, chosen by the players,

subject to removal at the will of either. He is not a referee at a

game. He is not the representative of the parties. He is the repres­

entative of the sovereign and he will abandon the trust reposed in

him only at the sovereign's command or when he falls at his post".^

Yankwich has echoed the same sentiments, when he says that, "A law

suit is a means to achieve justice through law,-not a game in which

2
the prize is to go to the more skillfully".

Thus, we cannot agree entirely with Professor Griffith that the

class composition, political inclination and other predispositions

are the only important elements in the decisional process. We must

remember the famous sentence of Justice Holmes, when he said that,

"General proposition do not decide concrete cases. The decision will

depend on a judgment or intuition more subtle than any articulate
3
major premise". Mr. Justice Sabyasachi Mukharji of the Supreme Court

1. Ibid at 828-29.
2. 'Some of the Social phases of the Administration of Justice’.
1932, S.S. Californea, Law Review, 189 at 207.
3. Joseph Lochner v People of the State of New York,198,U.S.,937.
 251

has very rightly observed the same in [Link] v [Link] Shanker

that, "that intuition more subtle than major premise is the pride

and the prejudice of. a human instrument of a judge through which

objectively the judge seeks ’to administer justice according to law.

So, therefore, in a study of accountability if class composition of

the people manning the institution is analysed we forewarn ourselves

of certain inclination, it cannot be said that an expression or view

or propagation of that view hampers the dignity of the courts or

. . 2
impairs the administration of justice".

A judge, without predispostion may not be a creative judge. His

logic, personality, history, standards of right conduct, are the;

factors that shape the progress of law. Justice [Link] says

that, "The perception of a judge is important and relevant. Judicial

3
process is not only a path of discovery but a path of creation". In

1908 President Roosevelt in his message to the Congress of the United

States on bee. 8, said that, "The chief lawmarkers in our country

may be, and often are, the judges, because they are the final seat

of authority.. Every time they interpret contract, property, vested

rights, due process of law, liberty, they necessarily enact into law

parts of a system of social philosophy; and as such interpretation

is fundamental, they give direction to all law making. The decisions

of the courts on economic and social questions depend upon their

economic and social philosophy, and for the peaceful progress of

our people during the twentieth century we shall owe most to those

1. A.I.R. 1988, S.C. 1208.”

2. Ibid at 1215.
3. The Nature of the Judicial Process, p.112.
 252

judges who hold to a twentieth century economic and social philoso-

ii 1
phy, which was itself the product of primitive economic conditions •

This notion about the judges is not truly stated. A judge may

have taken a firm position upon a question of law or fact, but this

itself will not be a proof that the same judge may be inclined

towards a particular opinion, or that we have an opinion biased

judge. If one concludes that, one is quite ignorant of the nature

of the judicial process. The most important function of a judge is

to discover the truth. In discovering the truth, a real judge lays

aside his individuality, his unconscious prejudices and other pers­

onal inclinations. "The training of the judge, if coupled with what

is styled the judicial temperament, will help in some degree to

emancipate him from the suggestive power of individual dislikes

and prepossessions. It will help to broaden the group to which his

subconscious loyalties are due. Never will these loyalties be

utterly extinguished while human nature is what it is. We may wonder

sometimes how from the play of all these forces of individualism,

there can come anything coherent, anything but chaos and the void.

Those are the moments in which we exaggerate the elements of differ­

ence. In the end there emerges something which has a composite

shape and truth and order.

The work of a judge is in one sense enduring and in another

sense ephemeral. What is good in it endures. What is erroneous is

1. Message to Congress 43, Cong. Rec. 21 (1908)

 253

pretty sure to perish. The good remains the foundation on which new
structures will be built. The bad will be rejected and cast off in

the laboratory of the years. Little by little the old doctrine is

undermined. Often the encroachments are so gradual that their signi­

ficance is at first obscured. Finally we discover that the contour

of the landscape has been changed, that the old maps must be cast

*
aside and the ground charted anew'. 12
3

Thus, judges,when they come to the courts, no doubt they bring

their disposition with them but they begin to build and rationalise

the new faith because of their judicial training and involvement. It

is true that when his disposition and opinions are deeply rooted in
him, and it becomes difficult for him to emancipate from these pre­

dispositions, the best course for him will be to dissociation him­

self from the decisional process. Lord Denning did the same in Ex-p.
2
Church of Scientology of California. He was of the view that he was

not sure that it was right to call scientology a Church and that the
3
scientology course contained dangerous materials. When the council

in that case requested by an application that Lord Denning should

not hear the appeal because of his predispositions about the Church
of Scientology, Lord Denning said that if the Church of Scientology

felt that its case would be little disturbed by his presence, he

would see that it came before a court in which he was not sitting.4

1. Justice [Link], the Nature of the Judicial Process,

pp. 174-179.
2. The Times, Feb.21, 1978.
3. Hubbard v ^osper (1972) 2 Q.B. 84.
4. Ibid in Note 1.
 254

We have already seen that justice Frank Furter recused himself

from the public utility commissioner's case,^ because of his strong

convictions about the issue involved in that case. Justice Doughlas

had expressed his strong opinion about the environmental danger in

the oil drilling permits case and that is why when the case went
2
to the court he withdrew himself from the bench.

In this connection the important point to be noted is, that

when some judges deeply feel about a matter, it is known that they

have a particular view about the matter involved, in that case beca­

use of their associations and background their outlook becomes clear

and nobody has a chance to complain that he has lost his confidence

in a particular judge because of a deep conviction. That judge him­

self will not give a chance to be complained. But when judges do

not expresa their opinions and prejudice about the matter involved

by their hidden and unexpressed subconscious opinions, here begins

the most dangerous point in the decisional process. Judges must not

have a closed mind about matters. Irrespective of their opinions

about witnesses, parties and the matters involved in the case,their

detached nature must ensure that their expressed or hidden opinions

do not create a bias in the decision making process. Judges may have

their general feelings about crime and punishment, social values

and other matters, they are not disqualified for that, it is only

when it is reasonably apprehended that their particular opinion may

bias them in particular cases, the question becomes important.

1. 343 U.S. 451.

2. Chandler v Judicial Council of the Tenth Circuit of the United
States (1970) 198, U.S. 74.
 255

There is a difference of opinion about the opinion bias between

the English and American jurisprudence. The English cases show that

these opinions some times tend to create such bias in their favour

that the decision maker becomes unable under their influence, to

give due weights to the interests and views of others. The Donough-
•i
more Committee report on Minister's powers-1 clearly states that,

"Indeed we think it is clear that bias from strong and sincere

conviction as to public policy may operate as a more serious disqua­

lification than pecuniary interest. No honest man acting in a judic­

ial capacity allows himself to be influenced by pecuniary iterest:

if anything; the danger is likely to be that through fear of yield­

ing in motives of self interest he may unconsciously do an injustice

to the party with which his pecuniary interest may appear to others

to identify him. But the bias, ±o which a public spirited man is

subjected to, if he adjudicates in any case in which he is interested

on public grounds, is more subtle and less easy for him to detect

and resist.

We are here considering questions of public policy and from

the public point of view it is important to remember that the prin­

ciple underlying all the decision in regard to disqualification by

reason of bias is that the mind of the judge ought to be free to

decide on purely judicial grounds and should not be directly or in­

directly influenced by, or exposed to the influence of, either moti­

ves of self interest or opinions about policy or any other consider­

ations not relevant to the issue.

1. 1932, C.M.D. 4060, Section 3rd.

 256

We are of the opinion that in considering the assignment of

judicial functions to Ministers# Parliament should keep clearly in

view the maximum that no man is to be judge in a cause in which he

has an interest. We think that in any case in which the Minister's

Department would naturally approach the issue to be determined with

a desire that the decisions should go one way rather than another#

the Minister should be regarded as having an interest in the cause.

Parliament would do well in such a case to provide that the Minister

himself should not be the judge# but that the case should be decided

by an independent tribunal.

It is unfair to impose on a practical administrator the duty

of adjudicating in any matter in which it could fairly be argued

that his impartiality would be in inverse ratio to his strength and

ability as a Minister. An easy-going and cynical Minister, rather

bored with his office and sceptical of the value of his Department#

would find it far easier to apply a judicial mind to purely judicial

problems connected with the Department's administration than a Mini­

ster whose head and heart were in his work. It is for these reasons

and not because we entertain the slightest suspicion of the good

faith of the intellectual honesty of Ministers and their advisers

that we are of the opinion that Parliament should be chary of impos­

ing on Ministers the ungrateful task of giving judicial decisions

in matters in which their very zeal for the public service can

scarcely fail to bias them unconsciously .

1. Ibid. Para 3# p.p. 78-79

 257

Thus English jurisprudence recognises the fact that strong and

sincere conviction may operate as a more serious disqualification

than the pecuniary interest. Interest and prejudice both are to

engender bias there. These are to be checked if one wants to get

an impartial and unbiased judgment.

The American jurisprudence, however, emphasizes upon the pers­

onal bias and prejudice. It does not give weightage to the civic

conscience of the judges. Definite views of the law, adverse ruling

in case on trial, adverse ruling in other cases or in cases involv­

ing similar facts, "Are not such bias or prejudice as will disquali­

fy judge under statute".

The American Courts are of the firm view that interest is a

sufficient ground for disqualification but prejudice is not. There

are, "Numerous decision to the effect that a judge is competent

although he has expressed a premature opinion of the merits of the

case and is hostile to one party, and yet he is not competent if

he is indirectly interested as a tax payer of a city litigant. A

situation is thereby created in which certain facts will disqualify

merely because they raised a presumption of bias while an actual

2
showing of bias will not". Professor navis is of the view that,

“Bias in the sense of crystillized point of view about issues of

law or policy is almost universely deemed no ground for disqualifica-

3
tion". The learned author criticises the report of Committee on

1. Judicial Code, 21,28, U.S.C.A. 25.

2. Notes 41, Harvard Law Review,78 at 80 (1927-28)
3. Administrative Law Treatise, 1958, 130 at 131.
 258

Ministers Power on the ground that, "The entire assertion is an

anachornism springing from a nineteenth century belief that law is

found and not made, a belief that has now virtually disappeared,....

We know to day that all common law is judge made law, resting ulti­

mately upon judicial idea of policy, and that even large portion of

law which purports to be statutory interpretation or constitutional

interpretation is judge made law, necessarily growing out of judici-

al development of ideas of policy". The American Courts have unifor­

mly rejected the views expressed by the British Committee. Thus

when the Supreme Court held in the Second Morgan Case ' that Secretary

of Agriculture had denied a fair hearing to the market agencies of

the stock yards, the secretary vigrousiy criticised the court's

decision in a letter to the New York 1'imes and in the Fourth Morgan
3
Case the market agencies charged that this letter disqualified the

secretary from reconsideration of the case after it was remanded to

him. The Supreme Court rather summarily rejected this contention and

observed that, "But, intrinsically, the letter did not require the

secretary's dignified denial of bias. That he not merely held, but

expressed, strong views on matters believed by him to have been in

issue, did not unfit him for exercising his duty in subsequent

proceedings ordered by the Court. Both cabinet officers and judges,

4
may have an underlying philosophy in approaching a specific case".

In Georgia Continental Telephone Co. v Georgia Public Service Commi­

ssion5, the court rejected the argument that the commissioners were

1. Ibid.
2. Morgan v United States, 304, U.S. 1-58.
3. 313, U.S. 409 at 461.
4. Ibid at 421.
5. 8, F. Supp.434.
 259

disqualified to reduce the rate because they were interested part­

ies because of their financial interests and political duress. The

court observed that, "Notwithstanding political platforms and admi­

nistrative policies, appointees who take the oath of office must

be considered to act honestly and in accordance with law and duty

except as their official acts when performed prove otherwise. Courts

will test these acts on their several merits, but will not investi­

gate the politics of appointment. The financial interest alleged is

too remote. It is not set up that the commissioners would lose their

salaries as a direct result of a decision of this case one way or

■1

the other Again in Montana Power Company v1 Public Service

2
Commission it was alleged that commissioner O'Connell had express­

ed on several public occasions his opinion against the company and

it would be impossible to get an unbiased judgement from him. The

court did not accept this argument. It observed that, "Irrespective

of any opinion Commissioner O'Connell may have expressed against

the power company, or public utility companies generally, during

the heat of a bitter political context after it was over, and he

found himself elected and had an opportunity fox' sober reflection

upon the responsibilities of his office and had taken an oath to

discharge the duties of his office with fidelity, then in the abse­

nce of a statute governing such a situation the presumption is that

in a case being considered, the commission, of which O'Connell was
one member, would act without bias or prejudice, and would be guided

1. Ibid at 436.
2. 12 F. Supp. 946.
 260

in rendering a decision solely by the evidence submitted. Complaint

is also made that O'Connell exhibited his prejudice during the hear­

ing. A disagreeable or sarcastic attitude on the part of a commiss­

ioner would not necessarily indicate that he would disregard the

evidence and his oath of office and decide the matter before him

in a manner contrary to both. The Public Service Commission is the

only commission or body in this state that can act in cases of this

charcter. If it were possible to disqualify one or more commission­

ers for utterances made in advance of an election to membership on

such a commission, .then it would seem difficult to determine how

such a board would ever be able to function when members were con-

fronted with evidence of having made prejudicial remarks".

The court has held the similar view in Marquett Cement Mfg.
2
Co. v Federal Trade Commission , Lumber Mut Casualty [Link]
3
New York v Locke , National Labour Relations Board v Donnelly
4 5
Garment Co. , F.C.C. v Cement Institute . In fact the American

jurisprudence clearly holds that unless there is a personal bias

or prejudice against the suiter, the opinions, utterances and other

predispositions of the judges are not a ground for disqualify ation

of a judge. Sometimes local people are entrusted to levy local

assessments. If they are held to be biased, the administrative

convenience will be disturbed and it will be difficult to find suit­

able person to levy an assessment. "Where bias and prejudgement

1. Ibid at 948-49.
2. 147 F 2d. 589 at 591-94.
3. 60 F 2d. 35 at 38.
4. 67 [Link]. 756.
5. 333 U.S. 683 at 700.
 261

arise only from the zeal of an officer who is given the power to

enforce a law as well as to decide issues under it, the problem

seems to be a legislative one. If the legislature did not separate

the functions, lit must be assumed that legislatures did not intend

to subject the official to disqualification for a certain amount

of bias of that kind. It has never been clearly held that an offi­

cer is disqualified because his zeal exceeded what the legislature

intended to allow, but such a rule seems both desirable and feasi­

ble. Personal hostility not based on devotion to duty should cert­

ainly disqualify. Although there is no constitutional protection

in this respect, a man should not be forced by courts or legislat­

ures to have his personal and property interest determined by his

1
enemy.

Thus, where a judicial officer has strong views on certain

issues, "And has expressed such views on several occasions, such

is not a ground for disqualifying the officer from sitting on a

case involving the subject matter of such views, where his views

as expressed were prejudicial to the interest of the one party, the

assumption apparently being that the officer, when considering a

single case will be unbiased and unprejudiced and will be guided

2
in rendering a decision solely by the evidence".

1. Disqualification of Administrative Officials (1941)

41, Columbia Law Review, 1384 at 1402.
2. Prof. Robert [Link], Disqualification on the Ground of
bias as applied to Administrative Tribunals, 23, The Canadian
Bar Review (1945) 453 at 464.
 262

Thus, it is clear, that the predisposition of the judges or

the adjudicating officers cannot be totally absent in their mind

but simply because they have certain preconceptions, they should

not be disqualified. Care has to be taken that the deep rooted

convictions of the judges do not create ^iS in the mind of the

litigants. If they are unable to emancipate themselves from these

prenotions, they must recuse themselves. That is the safer course.

The American jurisprudence's insistence that preconceived point of

view about issues of law or policy does not create, a bias should

not be read too much. This may produce injustice. There are many
1 . . .
cases m which it has been held that a judge is competent to sit

in action of criminal contempt or libel despite the fact that the

alleged offence is an attack upon him. The reasons advanced by the

courts, namely that he is vindicating the court and not himself,

and that there is a sufficient check on his emotions through an

2
appeal or impeachment are not convincing.

It has been rightly pointed out that "A biased mind rarely

realises its own imperfection and would normally prevent that per­

fect equipoise so desirable in our system of trial. And even if the

trial is conducted with perfect justice the public would still be

apt to grasp at the thought that vindication actuated by a feeling

3
of revenge has been achieved".

1. i) Bloom v People, 23, Colo. 416 at 448

ii) State v Sutton, 74, Vt 12, 52 Atl. 116.
iii) Patterson v Colorado, 205 U.S. 454.
iv) Hughes v Moncur 28, [Link].462, 152 Pac.968.
2. Myers v State, 46 Ohio St. 473, 22, M.E.43.
3. Notes, 41 Harvard Law Review, 78 at 81.
 263

It is true that sometimes unmerited attacks on judges are

made, and this not only creates discontent in the minds of the

judges, but also delays the trial. It is also true that sometimes

charges of bias are fabricated, but this does not mean that an

irrational distinction between interest and prejudice should be

stressed too much. A balance line has to be drawn. The whole purp­

ose of the judicial system is to ensure the public respect and con­

fidence in it and it has to be maintained at all costs. Prof

*

Sedgwick has also drawn our attention to this fact when he says

that, "This would appear to be an irrational distinction, ^hen

judicial officer is held to be competent to act although he express­

ed premature opinions on the merits of Jthe case, his views are

hostile to one party, and yet not competent where he has a direct

interest as a taxpayer", an anomalous situation has been created.

Certain facts will disqualify him merely because they raise a pre­
sumption of bias, while an actual show of bias will iot"^

Edward G. Burge is of the view that "Disqualification is a

sensitive and difficult issue because it involves questions that

are personal to judge. A better approach to disqualification involves

a balancing of the practical abilities and limitations of judge with

a litigant’s reasonable belief in his partiality, This requires a

rethinking of the field, dropping the check list approach in favour

of one that recognises no distinction between attitudinal and non-

attitudinal facts. So viewed, it becomes clear that personal know­

ledge, prior relationship and financial interest are merely indicia

1. Of. cit., at 465.

 264

of personal bias. This distinction could be better applied by allo­

wing the procedures for resolution of the issue to vary with the

substantive allegations of bias.

As long as we rely on human beings rather than automations to

resolve judicial disputes# absolute impartiality will be only an

ideal. We can and should demand withdrawal by a judge when a liti­

gant has a reasonable belief in his partiality but this does not

mean that litigants should be entitled to Jthe judge of .their choice.

While the present system is far from satisfactory, preemptory

challenge proposals are not the answerto difficult questions of

disqualifications. What is in order is a realistic reexaminations

of the goals of disqualification law and a more effective combina­

tion of substantive standards with procedural methods to meet these

goals"1

The most important aspects of the opinion bias relates to the

publicity which creates a bias among public against the persons

charged. In U.S.A, some federal administrative agencies have made a

practice of announcing, by press release, the institution of adjudi­

catory proceedings. No one wants to be a man of damaged reputations

in the eyes of the society. When the agencies announce the institut­

ions of the proceedings through press the element of prejudgment

crops up. It involves the commission or agency in public statements

appearing to support the allegations of rhe complaint and appear to

constitute official expression by the commission againt the respond­

ents and when they hear these they become both, the prosecutor and

1. Meeting the Challenge: Rethinking Judicial disqualifications,

69, California Law Review, (1981) p. 1.445.
 265

the judge. This announcement is not only an evidence of prejudgem­

ents on the charges which are yet to be investigated, this brings

injury to reputation. Thus, in the House of Representative, Rep.

Herbert Tenzer, spoke that, if the respondent manages subsequently

to prevail on the merits, it may discover that, "the finding of

innocence rarely catches up to the publicity of the accusations".

Prof. J. Landis is of the view that, "The initiation of a complaint

in public, of itself it is an attack upon the conduct of the respo­

ndent. Situated as the administrative agency is at the center of

news distribution.... the complaint receives wide publicity. Frequ-

2
ently far wider than its disposition " It has been rightly

observed that "The press release will usually create no danger to

the fairness of the proceedings themselves. But public reaction to

the announcement is frequently much the same as though what is ann­

ounced were a final determination unfavourable to the respondent.

Either because the public wrongly thinks that there has already

been a final determination, or because it concludes from the bring­

ing of charges that there has probably been wrong doing, the reput­

ation of the respondent, and therefore its ability to market secur­

ities, goods or services, can be severely damaged prior to any find­

ing against it"? Thus the publicity not only gives indication of

prejudgement of the issue but also damages the reputation of the

party concerned and he has to live in the society with a dissoluted

personality. The society becomes biased against him. A life, without

1. 113, [Link]. S. 1749-50.

2. The Administrative Process, 1938 at p.110.
3. Disparaging Publicity by Federal Agencies, Columbia Law Review,
vol. 67, 1512 at 1514.
 266

reputation, is of no use. It has been said by Lord Krishna in Gita

that men will recount thy perpetual dishonour, and to one highly

esteemed, dishonour exceedeth death.1

Gita tells us that it is better to die than to lead an unrep-

uted life. It has been held in D.F. Marion v Lavis. "The right to

the enjoyment of a private reputation, unassailed by malicious

slander is of ancient origin, and is necessary to human society.

A good reputation is an element of personal security, and is prot­

ected by the Constitution equally with the right to the enjoyment

3 4
of life, liberty, and property". The Corpus Juris Secundum , says

about reputation in the following lines, "It is stated in the defi­

nition of person, 70 J.S.p.688 note 66 that legally the term "person"

includes not only the physical body and members, but also every

bodily sense and personal attribute, among which is the reputation

a man has acquired. Blackstone in his Commentaries classifies and

distinguishes those rights which are annexed to the person, jura

personarum, and acquired right in external objects, jura rerum; and

in the former he includes personal security, which consists in a

person^ legal and uninterrupted enjoyment of his life, his limbs,

his body, his health and his reputation. And he makes the corresp­

onding classification of remedies. The idea expressed is that a

man's reputation is a part of himself, as his body and limbs are,

17 2/34.
2. 55 A.L.R. 171.
3. Ibid.
4. Vol. 77.
 267

and reputation is a sort of right to enjoy the good opinion of

others, and it is capable of growth and real existence, as an ano

or leg. Reputation is, therefore, a personal right, and the right

to reputation is put among those absolute personal rights equal in

dignity and importance to security from violence. According to

Chancellor Kent, "as a part of the rights of personal security, the

preservation of every person's good name from the vile arts of de­

traction is justly included. The laws of the ancients, no less than

those of modern nations, made private reputation one of the objects

of their protection.

The right to the enjoyment of a good reputation is a valuable

privilege, of ancient origin, and necessary to human society, as

stated in Libel and Slander S.4, and this right is within the const­

itutional guarantee of personal security as stated in Constitutional

Law (8.205), and a person may not be deprived of this right through

falsehood and violence without liability for the injury as stated

in Libel and Slander (S.4).

Detraction from a man's reputation is an injury to his person­

ality, and thus an injury to reputation is a personal injury, that

is, an injury to an absolute personal rifhtJ Ninety years ago

Edward a. Ross wrote that, "Signs are not wanting that in the fut­

ure an increasing restraint will be exercised through public opin­

ion, and that this kind of control will gain at the expense of

other kinds. For one thing, this form of coericion is suited to

1 Ibid at 268
 268

the type of man created by modern life. Only the criminal or the

moral hero cares not how others may think of him. The growing rage

for publicity and the craving for notoriety shows that the men of

to day respond warmly to praise and wilt quickly under general dis­

approval. Then, too, certain social developments favour the ascend­

ancy of the public. The growing economic interdependence and the

closer interweaving of private interests mean that the individual

gives hostages to the community for his good behaviour. ... The

more frequent contacts of men and the better facilities for forming

and focussing the opinion of the public tend in the same direction
*
..

With a democratic, forward-looking people like ours opinion,

no longer, split up into small currents by class lines or broken

in force by masses of family, ^ect, or caste tradition, the debris

of the past, acquires a tidal volume and sweep. In such a stream all

oaks become reeds. The day of the sturdy backwoodsman, settler,flat­

boatman, or prospector, defiant not only of law but of public opini-

on as well, is gone never to return".

At present the Government Agencies are using this publicity as

a means of control. Very often we find in Newspapers the allegations

made against some delinquents»They are asked to appear before the

inquiry committee at a particular time or the decision will be taken

in the absence. These instances clearly have a tone of bias. ‘-Those

who read the allegations against the particular employee of a parti­

cular department, an impression is created that particular employee

1. Social Control (1901) p. 104-5.

 269

is guilty of the offence. This practice can produce injustice. In

the eye of the public the image of that employee is tarnished and

there is no remedy to compensate that person when the department

is unable to substantiate all or part of the charges. As a prote­

ctive measure it may be legitimate but it should not be used to

bias the public opinion against the particular employee and ulti­

mately to give it a punitive character. It has been rightly obser­

ved by the U.S. Supreme Court in Silver King Mines, I.N.C.v Cohen1

that "The damage done by a press release will not be remedied by

2
an agency action or by post adjudication judicial review". If

publicity brings a libel or slander, that must be prevented at all

cost. It must be adjudged to be prejudicial and must be set aside

by the courts. "The unjustified harm that can be done by prehearing

publicity of agency charges is a problem to which there is no sati­

sfactory judicial or legislative solution. Judicial decisions on

whether to enjoin agency press releases have been erratic, and

probably will continue to be but neither the legislation which has

actually been proposed nor that which can be suggested, promises

improvement. Probably the best hope is that the agencies themselves

will appreciate the problem and willJbe careful in their use of pre-
□
hearing publicity". A delicate balance between the harm that it

may cause to the respondent and the good it can do to the puolic

has to be maintained. 'The respondent should not be a prey of the

biased and prejudge opinion however, on the other hand the public

1. 261 F. Supp. 666.

2. Ibid at 674.
3. Disparaging Publicity by Federal Agencies,Columbia Law Review
vol. 67, 1514 at 1528.
 270

interest should not be [Link] should be made a point, as

pointed out by the [Link] Court in Silver King Mines, I.N.C.

v Cohen that such releases should not be issued. "Automatically

and routinely". It must always be taken into account that the empl­

oyees should not be compelled to risk their reputation and careers.

Professor Francis [Link] rightly concludes that, "But most impor­

tant, from the perspective of traditional American political values,

is the rule that publicity has come to play in law enforcement. For

here the power of publicity threatens an alteration in our political

system that is of normative as well as empirical significance. There

is no doubt that the ability of government to control though publ­

icity opens an avenue through which political power may flow beyond

the bounds of law. What a government official is not authorised to

accomplish through legal sanctions he may now be able to achieve

through the threat or use of publicity. It is this fact that provi­

des room for concern about the role of publicity in our politiical

system. Otherwise governmental use of the publicity sanction might

fairly be viewed as simply another of -the unceasing adaptations of

3
control techniques to meet emergent social and economic problems".

We must remember the famous sentence of Bukharin who stated

before the Supreme Court of U.S.S.R., accepting with recognition

his own inpending excution he said, "When you ask yourself,'Very

well, suppose you do not die, suppose by some miracle you remain
alive, again what for? Isolated from everybody, an enemy of the

1. 261 F. Supp.666
2. Ibid at 673.
3. Law Enforcement Through Publicity. The University of Chicago
Law Review, vol. 24, (1966-67) 225 at 253.
 271

people in an inhuman position, completely isolated from everything

that constitutes the essence of life"J When a man is condemned

through publicity, the impact of public disgrace becomes very imp­

ortant for his life". This is because public opinion tends to be

the final arbital of value in democratic societies and to be cond­

emned before public opinion is to be condemned before highest court

2
of the land".' Lord Bryce has rightly said that, "He whom the multi­

tude condemns... has no further court of appeal ito look to. Rome

has spoken. His cause has been heard and judgment has gone against
. . H3
him .

De Tocqueville has also said the same in his famous book. He

says that, "Public favour in a democracy seems as necessary as the

air we breathe, and to live at variance with the multitude is, as

4
it were, not to live". David Ries Man writes, that, "Approval itself

irrespective of content, -becomes almost the only unequivocal good.

One makes good when one is approved of. Thus all power not merely

some power, is in the hands of the actual or imaginary approving

«5.
group"

Thus, it can be safely concluded that public opinion plays a

very important role about the reputation and dignity of the memb­

ers of that society. The rules of natural justice demand that a

person should not be condemned, his reputation should not be tarn­

ished through publicity and then a drama of fair trial, by those

1. The Dynamic Force of Liberty in Modern Europe,1952,p.124.

2. Supra Note 1 at p.255.
3. The American Common Wealth 1895, p. 261.
4. Democracy in America, 1945,p.261.
5. The Lonely Crowd, 1950, p. 49.
 272

who have condemned through publicity, should not be staged because

they are already biased against such persons and, the purity of

decisional process requires that a person must get a judgment from

an unbiased and impartial instrumentality. It should be strictly

followed,if a democratic society, disciplined by the rules of natu­

ral justice, is to survive.

The English jurisprudence also recognised that preconceived

opinion always do not create a bias. The possession of such opinion

by a person does not mean that he will not listen fairly to all the

evidence. Impartiality does not mean a total absence of preconceived

notions.

They know it very well that impartiality is an aspect of equal­

ity, it is a quality, which is desirable in the judges and the adju­

dicators. It connotes determination to deal equally with both or

all parties to a dispute. It teaches to apply the law equally and

fairly to all. Thus, Scrutton L.J., in an address to the Cambrige

University Law Society spoke, "The other word I usedwas .

'impartiality
*

1'his is rather difficult to attain in any system. I am not speaking

of conscious impartiality; but the habits you are, trained in, the

people with whom you mix, lead to fyour having a certain class of

ideas of such a nature that, when you have to deal with other ideas,

you do not give as sound and accurate judgment as you would wish

This is one of the greatest difficulties of present with labour.

 273

Labour says, "Where are your impartial judges? They all move in the

same circle as the employers,-and they are all educated and nursed

in the same ideas as the employees. How can a labour man or a trade
unionist get impartial justice?" It is very difficult sometimes to

be sure that you have put yourself into a thoroughly impartial

position between two disputants, one of your own class and one not

of your class. Even in matters outside trade unionist cases (to

some extent in workmen’s compensation cases) it is sometimes diffi­

cult to be sure, hard as you have tried, that you have put yourself

in a perfectly impartial position between the two litigants".

It cannot be denied that a judge may be unconsciously influen­

ced by his political and social conviction. A judge clearly realises

that he may be influenced by unconscious partiality. This realisation

an unique element in the judges, successfully guards against its

dangers. An "Icy impartiality of a Rhadamanthus" is almost impossi­

ble. In Western jurisprudence he is considered to be a stern and

2
incorruptible judge. In Jackson v Barry Railway Company , there was
a contract between the plaintiff and the defendant company to const­

ruct a dock for the defendant company. It was provided in the contr­

act that any dispute between the company and contractor as to the
meaning of any part of contract or as to the quality or description

of the materials ito be used in the works, should be referred to the

company's, engineer as arbitrator. A dispute arose whether the cont­
ract required the interior of a certain embankment to be made of

1. 1921, 1, C.L.J. pp. 6-8.

2. 1893, 1, Ch. 238.
 274

stone or whether rocky more was allowable. A correspondence took

place between the plaintiff and engineer and the engineer stated

his view to be that the contract bound the contractor to use stone.

lhe company then referred the dispute to the arbitration of the

engineer.. After this reference, the engineer wrote to the contra­

ctor a letter in which he repeated his former view. The plaintiff

brought his action to restrain the company from proceeding further

with the arbitration, on the ground that he had already made up his

mind about the matter involved in the issue. The lower court grant­

ed an injunction saying that the engineer had not brought an open

mind to the case, but had fully made up his mind upon it. The defe­

ndants appealed to the court of appeal. Bowen L.J. said that it was

an essential feature in the contract between the plaintiff and the

Railway Company that a dispute such as that which has arisen betw-

wwn the plaintiff and company's engineer should be finally decided

not by a stranger or wholly unbiased person but by the company's

engineer himself. "To an adjudication in such a peculiar reference,

the engineer cannot be expected, nor was it intended, that he should

come with a mind free from the human weakness of a preconceived

opinion. They know well that he possibly or probably must be commi­

tted to a prior view of his own, and that he might not be impartial

in the ordinary sense of word. What they relied on was his profess­

ional honour, his position, his intelligence....! cannot see that

the letter of the second of August warrants the inference that Mr.

Barry would not or couldJno longer do his best, when the matters
 275

formally came before him and his legal assessors to decide honestly

between his own distinct view and that of the contractor. He seems

to me not to have made sufficient allowance for the very special

character which by the contract this arbitrator had to fulfil# and

to have required from the engineer of the company-the Icy impartial­

ity of a Rhadamanthus'. To release him on such a pretex would be

to dissolve his obligation and the contract and to substitute by

force of power of this court. A wholly different and a far more

agreeable kind of arbitranment, before either some stranger or a

jury of strangers-a tribunal which it was the express object of this

contract to exclude". It was held that the letter in question, did

not upon its fair construction, show that the engineer had precluded

himself from keeping his mind open and that the injunction ought to

be dissolved.

It is usually complained that when government proposes hearing

and consultation with regard to determination of policy and plannings

the government comes with predetermined mind and the hearing becomes
2
futile. Thus, in Franklin v Minister of Town and Country Planning

it was alleged that at the public meeting the minister had stated

that he wanted to carry out in Stevenage A Daring Exercise in Town

Planning. He had made a prior political commitment and had deter­

mined that Stevenage should be the first of the new towns under the
New Towns Act 1946. Strong objections were made and were fully heard

by a Ministery inspector at a public inquiry. The minister, after

1. Ibid, pp. 247-49.

2. (1948) A.C. 87.
 276

considering the report, confirmed the designation order. The order

the minister was challenged on the ground of predetermination.

It was contended that by his positive statement of policy, the

minister had in effect, declare that his mind was made up in adv­

ance. He had precluded himself from considering the subsequent

report of the inspector fairly and without bias. The High Court

held that the law required impartial consideration and that infact

it had not been given. The court of appeal held that the law require

impartial consideration and the evidence didnot show that the

minister had been biased when he had made the order. When the case

went to the House of Lords, it held that law did not require impart­

ial consideration at all. The minister could be as biased as he

liked, provided that he observed the procedure laid down by the Act.

Lord Thankerton was of the view that the, "speech made by the mini­

ster, just before the second reading of the bill, and some months

before the statutory duties as to designation of new towns was

imposed on the respondent, has some bearing on the fair construction

of the speech. I am prepared to assume in. favour of the appellants

that, under the Bill as introduced, it was proposed to impose these

duties on the respondent, as Minister of Town and Country Planning,

and that these duties presented no material difference from those

contained in the Bill when passed into law. It could hardly be

suggested that, prior to its enactment, he was subject to any high­

er duty than is to be found in the statute. In my opinion, no judi­

cial, or quasi-judicial duty was imposed on the respondent, and any

reference to judicial duty, or bias, is‘irrelevant in the present
1
case". His Lordship observed that, "My Lords, I could wish that the

use of the word 'bias' should be confined to its proper sphere. Its

proper significance, in my opinion is to denote a departure from

the standard of even-handed justice which the law requires from

those who occupy judicial office, or those who are commonly regarded

as holding a quasi-judicial office, such as an arbitrator. The rea­

son for this clearly is that having adjudicate d as between two or

more parties, he must come to his adjudication with an independent

mind, without any inclination or bias towards one side or other in

the dispute.... (In the present case, the respondent having no judi­

cial duty, the only question is what the respondent actually did,

that is, whether in fact he did genuinely consider the report and
2
the objection".

Thus, the House of Lords did not find that the Minister had

forejudged the issue by his speech and that he had failed to consider

objections at the later stage.

It is to be remembered that such bias may be naturally inferred

in ministers and administrators. Professor Wade is of the view that

it is, "A virtue in a minister to have a policy and to advocate it.

He also has to face opposition and to make public speeches. If,

when he does so, he lets fall a defiant remark, that is by no means

inconsistent with an ability to consider, or reconsider, the whole

project when later the inspector's report arrives. The law must

1. Ibid
2. Ibid
 278

allow for the departmental bias which he is expected and indeed

required to have. The relevant question is whether the minister,

when he comes to make his decision, genuinely addresses himself to

the question with a mind which is open to persuasion". However,

Professor Wade has criticised this decision in relation to its

approach to the classification of functions. The learned author says

that, "The decision of the House of Lords threatened to become a

source of difficulty because Lord ThanKerton, who delivered the only

reasoned speech, appeared to throw doubt on the applicability of the

rule against bias to any kind of administrative case. He said that

minister had no judicial or quasi-judicial duty and that the only

question was whether he had complied with the statutory directions

to appoint a person to hold the public inquiry and to consider that

person's report. He made no mention of many previous cases holding

that a minister considering the report of an inquiry had a quasi­

judicial duty - this was, indeed, the stock example of this situation.

Lord Thankerton said that an example of a quasi-judicial function

was that of an arbitrator, and that was only in cases of that kind

that bias was relevant. But an arbitrator has a judicial as opposed

to a quasi-judicial function, that is to say, he decides according

to the facts and the law only, and not according to policy• It was

for discretionary decisions based on policy that the term quasi-

judicial was introduced, so that the principles of natural justice

might be applied to them so far as practicable. The House of Lords,

 279

therefore, unsettled the 'basic English' of administrative law,

however, it can be said that the decision has been paid little more

than lip-service. The need to set higher standards for inquiry

procedure has been recognised by the reforms made under the Tribun­

als and Inquiries Act and in accordance with the Franks Committee's

recommendations, so that ministers' decisions now provoke less

litigation. The House of Lords has also taken a much more extensive

view of what is meant by judicial and quasi-judicial functions,

and it is once again quite clear that the principles of natural

justice apply to administrative acts generally".

The point, that is stressed, here is that to have a pre notion

about the subject matter is not a bad element in itself. The badness

comes when the deep rooted convictions do not allow the adjudicator

or decision maker to perceive the matter with an open mind. If one

is able to maintain sufficient balance between one's own notion and

zeal and the public interest, one cannot be alleged to have a biased

mind. A decision maker is entitled to have a general policy so long

as it dees not, "Preclude him from judging all the issues which are
2
relevant to each individual case as it comes up for decision". Here

also the reasonable suspicion bears an important note. Thus Richmond

j, has rightly observed that, "In the ... case (of bias by predet­

ermination the question generally is as to vzhether the members of

the tribunal have so conducted themselves as to lead other persons

1. Ibid at pp. 492-93.

2. Stringer v Minister of Housing and Local Government (1970)
1, W.L.R. 1281 at 1289.
 280

to believe that there is a real possibility of the tribunal having

predetermined matters in issue before it. The requirement of just­

ice not only being done but appearing to be done is important in

the context of bias. When it comes to questions of fettering a dis­

cretion, however, I believe that the Court is concerned to ascertain

the reality of the position rather than the inference which people

could reasonably draw from the conduct of members of a tribunal11 •

2
In Lower Hutt C.C. v Bank the New Zealand Court of Appeal held

that, "vJe think that the state of impartiality which is required is

the capacity in a council to preserve a freedom, notwithstanding

earlier investigations and decisions, to approach their duty of

inquiring into and disposing of the objections without a closed

mind, so that if considerations advanced by objectors bring them

to a different frame of mind they can and will go back on their

3
proposals".

It is, therefore, essential for the appearance aspect of just­

ice that those who have preconceived notions of the subject matter

are not placed in the cage of tneir mental predispositions. They

must be willing to consider objection and the report of the person

who makes the inquiry with an open mind. They have to show that

their rules of conduct, which result in benefits and prejudices

alike, are infacts accurately and consistently followed. If these

elements are kept in mind, preconceived notions will not be a cause

of disqualification. Shri Radhakant Nayak has rightly concluded that

1. Hamilton City v Electricity Distribution Commission (1971)

H.Z.L.R. 605 at 638.
2. (1974) 1 H.Z.L.R. 545.
3. Ibid at 550.
 281

"There is yet another aspect which deserves consideration, namely,

the pretrial knowledge of the tribunals either in the matter of ad­

judicating disputes of conducting inquiries. The administrator turned

tribunal by his close proximity to both policy making levels and

adjudicating processes is well aware of the parties and the circum­

stances leading to the dispute. The question is whether this consti­

tutes bias and to what extent this knowledge influences the course

of adjudication and the nature of the decision. As already noted

above, bias with respect to subject matter does not constitute a

constraint in the judicial process and hence one may safely suggest

that pretrial information or even pretrial publicity should not be

regarded as an insurmountable obstacle or a serious handicap in the

dispensation of administrative justice".

We may not forget that the administrative agencies were created

simply because of the fear of the bias of orthodox judiciary.'Teller12

underlined this fact when he wrote that, "When the administrative

process is under fire, we hear much of the bias administrators,for-

geting that the more controversial of these agencies, was brought

2
about by an explicit fear of bias of the judiciary"; However, ulti­

mately the same -judiciary was entrusted the task of deciding the

element of bias in the agencies because of its detached quality.

'Jaffe' has very rightly pointedout that, "If emotionally determined

values constituted a disqualification, judges would be underconstant

attack and judicial constitutional law non existent. Nor is this

1. Administrative Justice in India (1989) Sage Publication

New uelhi at p. 114.
2. Administrative Law Investigation comes of age.(1941)
41 Columbia Law Review,589 at 599.
 282

entirely a matter of necessary evil. Certain persons give thank

for the predisposition of Mr. Justice Battler and certain others

looked upon Mr. Justice Holmes prejudices in favour of free speech

as the most precious of safe guards"^

ADJUDICATING PROCESS ANU THE TRIALS BY NEWS PAPERS

The next important question with regard to .the opinion bias is

the publication of the news of the adjudicating process in the News

Papers. The news paper reporting is not always responsible. The ill

informed news media may begin to speculate about the outcome of the

judgment. If the judgments happened to be in accordance with the

speculation of the news papers, it may be alleged that the judge

was biased by the News paper reporting. If on the other hand, the

otherwise happens, the judges are criticised for not knowing the

public will. Justice Van Dijkhorast has very aptly analysed this

problem. He says that, "A reason for the objection to the prejudging

of issues to be tried by a court of law is that it may affect the

mind of those who may later be witnesses or possibly even of the

judicial officer.... There is, however, a more profound reason.

Trial by news paper is intrinsically, objectionable as it would

1. Invective and Investigations in Administrative Law (1939)

52, [Link]. 1201 at 1219.
 283

lead to disrespect for the law. There will always be a section of

the mass media that is ill informed or prejudiced and which, regard­

less of the truth, attempts to sway public opinion to its purposes.

If the mass media are allowed to usurp the function of the courts

and judge the issues which are to be tried not only will unpopular

causes not get a fair trial, but the public will be led to believe

that it is easy to find the truth, viz. in the popular press, and

disrespect for the process of the law could follow. Wild speculat­

ion in the press about the outcome of case would tend to lower the

esteem in which our courts are held. Should the judgment conform to

the speculation the impression might be created that the judge was

influenced by the press. Should the judgement differ from the

speculative expectation, false hopes will have been raised and the

public will not accept the correctness of the court's finding.

I have discussed the dangers of wild speculation. Even a care­

fully balanced discussion (if that is possible) about the outcome

of a pending case holds an inherent danger. It may provoke replies

which overstep the bounds and the descent on the slippery sloap

over the abyss of trial by nev^ paper will have begun. An absolute

rule against media the judging of issues in pending cases is nece­

ssary. Trial .by news paper is a monster which should not be allowed
. i„1
to set foot on our soil.

1. S.V. Harver and another; in xeo.V. Bleka and others. 1986,

3.A. 214 (T) at 221.
 284

In this context, it is to be remembered that the court must

proceed to discharge its duties uninfluenced by any extraneous

consideration. If they are influenced by the sentiment and emotion

shown in the news paper trial, that will bring disrespect to the

whole judicial process. The court is not concerned with what happens

out side the court room, when the court is busy in its process of

adjudication. Out side the room and out side the court premises

the heat generated by news media or through flutter in the public

mind should not bias the judicial process. Mr. Justice Ranga Nath

Mishra of our Supreme Court has observed: "It is the obligation of

every court to find out the truth and act according to the law once

the truth is discovered. In that search for truth obviously the

Court has to function within the bounds set by law and act on the

evidence placed before it. What happens outside the Court room

when the Court is busy in its process of adjudication is indeed irr­

elevant and unless a proper cushion is provided to keep the proceed­

ings within the court room dissociated from the heat generated out­

side the court room either through the news media’ or through flutter

in the public mind, the cause of justice is bound to suffer. Mankind

has shifted from the state of nature towards a civilised society

and it is no longer the’ physical power of litigating individual or

the might of the ruler nor even the opinion of the majority that

takes away the liberty of a citizen by convicting him and making

him suffer a sentence of imprisonment. Award of punishment follow­

ing conviction at a trial in a system wedded to Jrule of law is the

 285

outcome of cool deliberation in the court room after adequate hear­

ing is afforded to the parties, accusations are brought against the

accused, the prosecutor" is given an opportunity of supporting the

charge and the accused is equally given an opportunity of meeting

the accusations by establishing his innocence, It is the outcome

of cool deliberations and the screening of the material by the inf­

ormed mind of .the judge that leads to determination’of the lis. If

the cushion is lost and the court room is allowed to vibrate with

the heat generated outside it, the adjudicatory process suffers

and the search for truth is stifled The courts cannot allow

an emotional and sentimental feeling to come into the judicial pro­

nouncements. Once sentimental and emotional feelings are allowed

to enter the judicial mind the judge is bound to view the evidence

with a bias and in that case the conclusion may also be biased

resulting in some cases in grat injustice. The cases have to be

decided strictly on evidence howsoever cruel or horrifying the

crime may be. All possible chances of innocent man being convicted

have to be ruled out. There should be no hostile atmosphere against

an accused in court. A hostile atmosphere is bound to interfere in

an unbiased approach as well as a decision. This has to be avoided

at all costs."!

It is, therefore, urged that the news paper should be very

careful in reporting the reports of the adjudicating process. It

cannot be boldly claimed that a judge's mind may not be influenced

1. State (Delhi Administration M-Laxman Kumar, A.I.R. 1986,

S.C. 250 at 266-67.
 286

by media covering and reporting. Viscount Dilhorae has stated that.

It is sometimes asserted that no judge will be influenced in his

judgment by anything said by the media and consequently that the

need to prevent the publication of matter prejudicial to the hear­

ing of a case only exists where the decision rests with laymen.

This claim to judicial superiority over human frailty is one that

I find some difficulty in accepting. Every holder of a judicial

office does his utmost not to let hjs mind be affected by what he

has ser^n or heard or re-’d outside the court and he will not know­

ingly let himself be ifluenced in any way by the media, nor in my

view will any layman experienced in the discharge of judicial duti­

es. Nevertheless it should,I think be recognised that a man may

not be able to put that which he has seen, heard or read entirely

out of his mind and that he may be subconsciously affected by it.

As Lord Denning M.R. said the stream of justice must be kept clean

and pure. It is the law, and it remains the law until it is changed

by Parliament that the publication of matter likely to prejudice

the hearing of a case before a court of law will constitute a cont-

empt of court punishable by fine or imprisonment or both".

Lord Reid observed in Attorney General v Times News Papers

2:"I think that anything in the nature of prejudgment of a case

Ltd.1

or of specific issues in it is objectionable, not only because of

its possible effect on that particular case but also because of its

side effects which may be far reaching. Responsible "mass media"

1. Attorney General v BBC, 1981, A.C. 303 at 335.

2. (1974) A.C. 273 at 300.
 287

will do their best to be fair but there will lalso be ill informed,

slapdash or prejudiced attempts to influence the public. If people

are led to think that it is easy to find the truth disrespect for

the processes of the law could follow, and i.C mass media are allowed

to judge, unpopular people and unpopular causes will fare very badly.

Most cases of prejudging of issues fall within theexisting authori­

ties on contempt. I do not think that the freedom of the press would

suffer; and I think that the law would be clearer and easier to apply

in practice if it is made a general rule that it is not permissible

to prejudge issues in pending cases". Lord Diplock emphasized the

same when he said that, "Due administration of justice requires

first that all citizens should have unhindered access to the consti­

tutionally established courts of criminal or civil jurisdiction for

the determination of disputes as to their legal rights and liabili­

ties; secondly, that they should be able to rely upon obtaining in

the courts the arbitrament of a tribunal which is free from bias

against any party and whose decision will be oased upon those facts

only that have been proved in evidence adduced before it in accord­

ance with the procedure adopted in courts of law; and thirdly that,

once the dispute has been submitted to a court of law, they should

be able to rely upon there being no usurpation by any other person

2
of the function of that court to decide it according to law".

K (1974) A.C. 273 at 300.

2. Ibid at 309.
 288

However in that very case Lord Simon of Glaisdale observed

that, -o.e first public interest involved is that of freedom of

discussion in democratic society. People cannot adequately influen­

ce the decisions which af ect their lives unless they can be adequ­

ately informed on facts and arguments relevant to the decisions.

Much or such fact-finding and argumentation necessarily has to be

conducted vicariously, the public press being a principal instrum­

ent. This is the justification for investigative and campaign journ­

alism. Of course it can be abused but so may anything of value. Thus,

Lord Simon is of the view that the news paper reporting should not

be treated as creating a bias in the minds of the judges, if they

are abused, the abuse has to be checked. Simply because a freedom

may be abused, it cannot be restrained. Mr. Justice Sabya sachi

Mukharji (as he then was) has rightly observed: "It may be mentioned

that the so-called informed press may misrepresent the court procee­

dings. We must remember that the people at large have a right to

know in order to be able (to take part in a participatory develop­

ment in the industrial life and democracy. Right to know is a basic

right which citizens of a free country aspire in the broaden horizon

of the right to live in this age on our land under Art.21 of our

Constitution. That right has reached new dimensions and urgency.

That right puts greater responsibility upon those who take upon

the responsibility to inform .... In this peculiar situation our

task has been difficult and complex. The task of a modern judge,

as has been said, is increasingly becoming complex. Furthermore,

 289

the lot of a democratic judge is heavier and thus nobler. We cannot

escape the burden of individual responsibilities in a particular

situation in view of the peculiar facts and circumstances of the

case. There is no escape in absolute. Having regard, however, to

different aspects of law and the several decisions, by which we are

bound, except the decisions of this Court referred to hereinbefore,

about which we have mentioned, there is no decision dealing with

this particular problem, we are of the opinion that as the Issue is

not going to affect the general public or public life nor any jury

is involved, it would be proper and legal, on an appraisal of the

balance of convenience between the risk which will be caused by the

publication of the article and the damage to the fundamental right

f

of freedom of knowledge of the people concerned and the obligation

of Press to keep people informed. That injunction should not conti­

nue only further"]’

Thus a balance has to be maintained between the free Press and

fair trial. The Administration of Justice has to be safeguardedLIf

the news paper trial of the case prejudges the issue, it is a

Flagrant violation of the first principle of the natural justice

and it must be discarded. Freedom of press is not an absolute free­

dom, it cannot paralyse all Ithe freedoms essentialIto the men in

the society. Justice Frank Furter wrote that, "The dependence of

society upon an unswerved judiciary is such a common place in the

history of freedom that the means by which it is maintained are too

1 Reliance Petrochemicals Ltd. v Proprietors of Indian Express

News Paper Bombay Pvt. Ltd. and others. a.I.R. 1989, S.C. 190
at 202-203.
 290

frequently taken for granted without heed to the conditions which

alone make it possible. The role of Courts of justice in our society

has been the theme of statesmen and historians and constitution

makers, and best illustrated in the Massachusetts Declaration of

Rights as the right of every citizen to be tried by judges as free,

impartial and independent as the lot of Ihumanity will admit"■ In

fact the freedom of press and other liberties are dependent upon

an untramelled judiciary, "whose passions are not even unconsciously

aroused and whose minds are not distorted by extra judicial consid-
, . „2
erations .

It may be concluded, therefore that a judiciary, unbiased and

uninfluenced by extra judicial considerations, is the guardian of

the society. If news papers play an educating role in the society,

their reporting is welcome, but if they deliberately misinform the

public and try to prejudice the minds of the judges or adjudicating

authorities, their freedom should be restrained. If the reporting

of adjudicating process becomes a monster it should not be allowed

to set foot on the adjudicating soil.

1. Harry Bridges v State of California (1941) 86, Law Ed.192 at 282.

2. Ibid at 284.
 291

THE TEST OF BIAS

At common law two tests of bias have been recognised, and

whether a person is actually biased, or whether there is a reason­

able apprehension of bias, these two aspects have been dominating

the fields from the very beginning. The first tests is known as the

objective test and the second is known as subjective test.

The Objective Test:

D.H. Clark has pointed out that, "It is the existence, not the

operation of such an interest that disqualifies. The test of bias

is objectivity"^ The reasoning which under lines, "This formula,

commonly known as the real prejudice rule, is that while no person

should be forced to trial in the presence of actual bias, "there is

little likelihood of harm to a litigant's interests unless the judge

is infact prejudiced, either against him or .in Favour of the other

party"? The origin of this test goes back to Black Burn C.J. in Rex

v Rand3. He posulated that whenever there was a real likelihood,

"that the judge would, from kindred or any other cause, have a bias

in favour of one of the parties, it would be very wrong in him to

act, and we are not to be understood Lto say that, where there is a
real bias of this sort this court would not interere"?

1. Natural Jutice; Shadow and Substance, Public Law, 1975, 27 at p.30.

2. Notes, 51, The Yale Law Journal, 169 at 171.
3. (1866) L.R. 1, 230.
4. Ibid at 233.
 292

ac Burn C.J, clarified this rale again in 1875 in R v Meyer

and others. In that case Mr. Justice Meyer was the Chairman of the

Enfield Local Board and had taken active part in the proceeding

against the owner of alarm. He was convicted. On appeal he alleged

that Meyer was biased and that conviction should be quashed. 'Black

Burn C.J. held that there was real bias and Mr. Justice Meyer ougat

not to have sat as a justice and it was immaterial what part he

really took in the matter. Conviction was quashed. In fact Mr.

Justice Black Burn emphasized that in the case of a judge having

any pecuniary interest the court was compelled to quash the convict­

ion. He made it clear that where disqualifying interest is not con­

fined to pecuniary interest, the interest, if not pecuniary must be

2
substantial. He clarified his statements in Rand's case and said

that, "The effect of our judgment in that case was that, though

pecuniary interest in the subject matter of dispute, however small,

disqualifies the justices, yet the mere possibility of bias did not

ipso-facto avoid the justices decision, and we thought that there

was a possibility of bias in that case, yet it was not real. But we

actually excepted a real bias, saying, that we must not be understood

to say that where there is a real bias this court would not iinterfere
3
In the present case there is such a real bias". Again in 1881 in R.

Handsley4 Cave J. observed that, "In order to disqualify the justice

it must be established that he has such a substantial interest in

the result of the hearing as to make it likely that he has a real

1. 1 U.B.D. 173.
2. (1866) L.R. 1 230.
3. 8upra Note 1, at P» 1'7.
4. 8 Q.B.D. 383.
 293

bias in the matter" J- In R v Farrant2 it was held that the acts of

the Magistrate did not show that he had such a substantial interest

in the result as to make it likely that he would have a bias, and

that the fact of his being subpoenaed did not disqualify him from

sitting, and therefore the prohibition must be set a side. Stephen

J. observed that, "The legal principles on which the decision of

this case turns are as follows. In the first place it is leading

principle of English Law that no one is allowed to be a judge in

his own cause, that means that the least pecuniary interest in the

subject matter of the litigation will disqualify any person from

sitting as a judge. This rule has been carried very far But the

law does not stop there, for there may be an interest which have

substantially the same effect as a pecuniary interest, though it is

3
not of the same nature". Stephen J. was of the view that in earlier

cases the judgments given by judges are "The Rule of Law laid down
4
in these cases". Thus the reasonability and the theory of substantial

interest became the rule of law in establishing an element of bias.

Practically it became a matter of discovering when judicial bias

existed and of deciding what degree of prejudices was essential to

disqualification.

The English Courts have applied this test of real likelihood

of bias or substantial interest theory in number of cases, some of

5
them are, R v Bunderland Justices , Frome United Breweries Company

1. Ibid at 387.
2. 20 Q.B.D. 58. (1887)
3. Ibid at p. 61
*
4 Ibid at p. 61
5. (1901) 2 K.B. 357.
 294

v Bath Justices , R v Camborne Justices Ex-parte Pearce^ Healey v

3
Rauhma , Hannani v Bfad Ford Corporation4o This principle was also

endorsed by Irish Courts in R v Uueen’s County, J#J.^ and R v County

Cork/ J.J. The English Courts held that the element of bias to be

present/ it must be substantially present. The important cases are

R v Nails worth Licensing Justices ex-parte Bird\ R v Caernarvon

Licencing Justices ex-parte Benson?

The substantial interest theory sometimes resulted in making

the biased judgment an unbiased one, and it was totally against the
9
first principle of the natural justice. Thus in ex-parte Pope the

judge had been a candidate in the election in which a fraud was

supposed to have occured and the judge would gain or lose votes as

a result of his own decision, he was not disqualified in a juridi-

ction, adhering to this test, because the number of votes in quest­

ion was insufficient to change the election result and his interest

in the case was, therefore, insubstantial. Therefore, such situat­

ions may come where the judge's interest may be dependent upon the

result of che adjudication, the judge may be a gainer in the process

but because of the insufficiency of the interest he would not actu­

ally be biased.

1. (1926) A.C. 586.

2. (1955) 1 C.B.D. 41.
3. (1958) N .Z..L.R. 945.
4. (1970) 1 W.L.R. 937.
5. (1908) 2 Ir.R. 285.
6. (1910) 2 Ir.R. 275.
7. (1953) 2. All E.R. 652
8. (1948) 113, J.P.
9. 26, Ala. App. 282.
 2 95

It is true, that the good judges do not allow their personal

.interests or prejudices to impair their fairness. But the fact

remains that the substantial interest doctrine becomes powerless

to prevent serious miscarriages of justice in many cases. The most

important defect of this test is the proving of actual bias. Thus

in People v Bmrnett^ an altercation took place between judge and the

counsel. The judge told, "Your standing before these courts, Mr....

is not such as to entitle you to any great consideration". It is,

in itself a proof of actual bias, but since it could not be proved

the appellate court did not consider the statement as clearly demon­

strating the bias on the part of the judge. The second difficulty

in adhering to chis test is that at appellate stage the separate

facts as to constitution of actual bias are to be adjudicated upon

and this will cause unnecessarily delay. The determination. of the

actual bias by the judiciary will make the court, "Practically a

dead letter since we rarely, could ascertain the actual

if ever,
3
condition at a given moment of the human mind". Professor Francis

Alexis is of the view that, "It is difficult to conceive of what

will support a finding of actual bias, especially as a review court

should not consider the apparent merits of the substantive case in

determining an alleged breach of natural justice, as seen above. Not

even a tradition of acrimonious hostility between a member of the

inquiring stewards of the turf club and the member being warned off

satisfies the reasonable suspicion test. And the rare apparently

1. 123, Cal. App. 678.

2. Ibid, 12, p. (2d) 92.
3. Per Lord O'Brien C.J. in R v Oueen's County Justices (1908)
2 I.R. 285 at 294.
 296

self betraying remark by an adjudicator establishes reasonable

suspicion only ?
'after some hesitation12

Ihe real and substantial standard of bias sometimes results in

an unique situation. In United States of America in certain states

there is a provision for the elected judges. The judges stand for

election and lawyers contribute money in their election fund. "Wot

surprisingly, much of the financing for judicial compaigns comes

from lawyers. Lawyers are the only group that deals with judges on

a continual basis. Judges are generally ex-lawyers, and have many

lawyer friends who are available to contribute to the compaign. Law­

yers are also the group with the most incentive to contribute. Unlike

most people, they have informed opinions about who is a good judge

and who is not. In addition,particular types of lawyers stand to

gain from trie election of particular types of judges. Plaintiffs'

attonrneys will make more money before a judge sympathetic to acci­

dent victims. Civil rights attorneys will win more cases before a

judge supportive of civil rights. Attorneys who represent large

corporations will prefer a probusiness judge. Again unlike most

people, lawyers appear in court over and over again. They thus have

a greater incentive than nonlaywers who appear in court only sporad­

ically, ito elect a judge who will consider them firends and support­

ers"? Here those who contribute small amount are not supposed to

be actually biased, because of the meager amount of the money they

1. Reasonableness in the establishing of bias (1979)

Public Law, 143 at 161.
2. Stuart Banner, 'Disqualifying Elected Judges from Cases involving
campaign contributors! 40, Stanford Law Review, 449 at 458.
 297

pay. It is also not expected that their contribution will play a

big role in the winning of the election of the judge. Because of

their insubstantial interest the existence of actual bias in them

will not be proved. If a lawyer contributes one dollar to the re­

election compaign of an incumbent judge, one could not reasonably

expect the judge's gratitude to result in bias in the lawyer's fav­

our. This differentiation of amount does not prevent a judge from

being actually biased. Whenever a contributor goes to the court of

law, a judge remembers that he had contributed in his election fund.

Actually he will have an inclination in his favour, but it will

have no appearance and that judge will not be disqualified. The

California Supreme Court Justice David Eagleson has rightly observed

that, "It will make a lawyer very nervous if he is opposing an

attorney whom he knows has made a contribution to the judge's comp­

aign. This is one of the reasons the bar should exercise some

restraint"]' Judges also feel a little nervous when they hear the

case involving a contributor. Thus, it has been observed that a

contributor is always, "In the back of the mind of the successful

candidate. This places a stress on the judge, even those pure of

heart"1
2, Justice Robert F. Utter of the Washington Supreme Court

says that, "Since candidates for judicial position look to the bar

for bheir financial support, lawyers may find themselves in an un­

tenable financial position when there are multiple judicial races

with worthy candidates in each of them deserving support. Second a

1. The Robed Politician, L.A., Law, March, 1979,p.10 at 30.

2. Smoler and Stokinger, The Ethical Dilemma of Compaigning for
Judicial Office; Proposed Solution, 14,Fordham Ure,L.J.353,
at 395.
 2 98

lawyer who opposes an incumbent or supports a candidate who might

not be successful may be taking risk. It would be naive to suggest

that lawyers are insensitive to the possibility that ill-will may

be created by publicly supporting a candidate who unsuccessfully

challenges an incumbent. The reaction of victor in a compaign vari-

es-some judges are gracious to all who appear oefore them in court,

while others are highly critical of lawyers who have actively supp­

orted an opponent. In any event, the lawyer who supported the vict­

or's opponent, and perhaps to a greater extent that lawyer's client,

often will wonder whether his case would have been treated more

favourably by the court if the lawyer had supported the judge who

heard the case. Of course, the magnitude of the risk will bear an

inverse relationship to the size of the country in which the lawyer

practices"^

Sometimes the money is used to defeat a judge who has given a

judgement against the contributors. Thus, Fish has given an example

where an appellate court judge ruled against Fat Maloney and his

client in a X 3,000,000 slander case. Maloney financed the compaign

of a justice of the peace who defeated the judge in the next elect­

ion. Maloney was quoted as saying, "I think that message has gotten

across pretty substantially .... We have a pretty good court now....

2
we seem to have their undivided attention". It is clear therefore,

that whenever Maloney will appear before the court, the judge who

owes the election because of his compaigning the judge would naturally

1. Selection and Retention-A Judge Perspective, 48, Washington Law

Review. 839 at 843.
2. Flashy Lawyer Doubles in Politics for Fun. Dallas Morning News
May 9, 1982 at 1A. Col.3.
 299

be sympathetic to him. The role of money then becomes important.

Lawyers also know that this will create the appearance of bias.

Anderson, has expressed his feelings in the following words: "Judi­

cial election compaigns will always create the appearance of an

unhealthy obligation running from the judge to (contributors). Thus,

there is a basic conflict between professional ethical, ideas and

the practical necessities of democratic elections. The candidate

must seek a resolution of this conflict which will preserve his own

self respect and perhaps add in some measure to the public opinion

of judges and lawyers.

It is unfortunately plain, however, that even the most ethic­

ally conducted campaign involves a series of exceptions to the

(former judicial) canons which warp their spirit and which add

nothing to public respect for our judicial system Judges

inevitably incur obligations to those who manage their campaigns

and donate money. This certainly "tends to arouse the suspicion"

that the judge may not have an "impartial attitude of mind in the

administrating of his judicial duties". Doubtless there is occasion­

ally some substance in these shadows, at least in the distribution

of patronage. As long as a judge's campaign committee accepts gifts

of money and work from lawyers, there will be growing doubts as, to
his freedom from influence and bias"J Biddle, has also pointed out

that, "His clients would suffer if he did not contribute to a judge's

reelection campaign like "any other lawyer in town". There is no

1. Ethical Problems of Lawyers and Judges in lection Compaigns,

50,ABAJ,819 at 820-823 (1964).
2. Fear Contributes to Lawyers Donations quoted in Schotland Elect­
ive Judges Compaign" Financing, 2, JL & Pol.57 at 63 (1985).
 300

doubt on this point that lawyers do contribute in the lection of

judges to gain a responsive ear. The another aspect of this elect­

ion compaign is that in order not to incur disqualification, some

lawyers only contribute S 999 because in some states a ceiling is

being imposed upon the contribution by lawyers. If a lawyer contri­

bute 2 999 he, or the elected judge, is not supposed to be biased

and partial. But if the lawyer pays 3 1000 both he and the judge

become disqualified. It is a strange thing to think that the diffe­

rence between the qualifying and disqualifying numoer is merely of

31. It passes beyond comprehension to think that 3 999 is insubst­

antial and 3 1000 is substantial interest. Secondly it is a double

edged weapon. It is used by the lawyer as well as by the judges. If

a lawyer does not want to appear before a particular judge because

of his own interest, he contributes 31000 in the election funds of

the judge and he becomes disqualified forever and is not allowed to

appear before the said judge in accordance with the law. His purpose

is solved, yet we cannot prove actual bias. On the other hand judges

who do not want that some particular lawyers should go to the courts

of other judges and that they should always remain in their own

courts, they asked them to contribute below 31000 in their election

funds and more than 31000 to the election funds of those judges in

whose court they do not want the lawyers to go. In all these cases

the objective test does not help because it is a matter of proof.

it is true, that the existence of actual bias cannot be proved, yet

the appearance aspect shakes the confidence of the public in the

 301

judicial system, which is the substantive structure of a democratic

state governed by the rule of law and disciplined by the rules of

the natural justice. The actual bias can only be proved by personal

hostility, personal friendship, family relationship, professional

and vocational relationship, the relationship of employer and empl­

oyee, and because of attitudes towards the issue involved in the

subject matter. The election compaign does not prove this but the

ultimate motive is to get a responsive ear from the judge in whose

favour contribution has been made. It does not show the existence

of actual bias but it does show the appearance of bias. What should

be done then? Should we infer that since there is no real likelihood

of bias that infact exists, and there is only a reasonable suspicion

the adjudicating process is not biased. Prof, de Smith has posed

this very important question. "What is the position if the court is

satisfied, on the evidence before it, that there was no real likeli­

hood of bias but is nevertheless of the opinion that a reasonable

man, at the time when the decision under review was made, could well

have suspected that the tribunal would be biased? Does the public

interest nevertheless demand that the original decision be set aside?

1
The cases do not speak with one voice on this matter". Thus in R v
2
Hain and others, Licensing Justices , the Queens Bench Division

quashed the granting of licence on the ground that, though the

two judges had resigned from the company's board and had sold their

shares before participating in the judicial deleberation, yet the

1. Judicial Review of Administrative Action, Fourth Edition,

1980, p. 263.
2. 12 T.L.R. 323.
 302

narrow majority by which the licence was obtained clearly proved

that the judges had resigned to qualify themselves to sit in the

judgement to favour their relatives as they had a foreknowledge

that, "unless they were able to support the application the licence

would not be obtained. It could not be said under these circumst­

ances that the granting of the license was an unbiased judicial

1
decision". On the other hand it was held in R v Camborne J.J., ex-
2
parte Pearce that "real likelihood" was the proper test, and that

a real likelihood of oias had to 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

3
easily verified in the course of his inquiries".

The objective test, therefore, began to be insufficient in

ascertaining the element of bias. The difficulty of proving the

actual bias became more and more intense. These difficulties led

Oordon to remakr that, "the only question which can legitimately be

entered, into is the position of the tribunal's members and whether

this raises a presumption of bias. Whether bias was actually shown

or not is immaterial"? In Anderton, Mahon J. observed that, "Disco­

very of documents and the production of the record of the tribunal

may disclose such an association between one party and the tribunal

that a real likelihood of bias is established, no matter how fairly

1. Ibid at p. 324.
2. (1955) 1 Q.B. 41.
3. Ibid at p. 51.
4. The Observance of Law as a Condition of Jurisdiction,
47, L.Q.R. 386 at 409.
 303

the proceedings may seem to have been conducted. In such a case it

will be the opinion of the court, and not the objectively assumed

response of an observer of those proceedings, which will be the

decisive factor. But if there is no evidence of such a connection

between one party and the tribunal as to justify real likelihood of

bias, the manner of conducting the proceedings may in itself create

a reasonable suspicion of bias, founded upon nothing but the out­

ward aspect of the determination under review11!

Thus, it was realised that the insistence op the objective

test will not produce the desired result. The reasonable enquiries

were required to be made for ascertaining the elements of bias. It

was argued that the law should not be treated like superstitions.

If the actual existence of bias test is not working, the law should

search out new test for ascertaining the same. Thus Gordon wrote:

"The law, like other sciences, has had its superstitions which,

after flourishing openly for generations, or more discreetly for

centuries, have at 1 it been seen for what they are and been utterly

discredited. Usually judicial eyes have been opened by the cumulat­

ive effect of situations arising that test old fallacies at their

weakest points, until their unsoundness can no longer be concealed.

But these outcroppings of inherent vice take time to become conspi­

cuous, and hoary superstitions may long survive the first doubts

felt about them. The dissipation of a legal superstition may even

be a piecemeal process. The same idea which is recognised as nonsense

1. (1978) 1 N.Z.I.R. 657 at 686.

 304

when seen in one guise may continue to be looked on as a profound

truth when seen in other guises, the identity of the underlying

principle remaining long unsuspected"!

The academic writers began to advocate that the actual exist­

ence of bias must be accompanied by the reasonable suspicion test

of bias. It was argued that, "due process requires that the trial

judge conduct a fair, orderly and impartial trial. It requires

absence of actual bias. Not only they are required to be fair, they
2
must also satisfy the appearance of justice", ft was held in In re-
3
Murchinson' that, " a fair trial in a fair tribunal is a basic

requirement of due process". It is true that a judge is not a robot

without emotional reaction to the happening in the court room, yet

he must exercise care not to communicate his bias, by being over

reactive. Thus it has been held in 'Vilen v State5 that the trial

judge is a human being, not an automaton or a robot. He is not requ­

ired to be a grate stone face which shows no reaction to any thing

that happens in his court room We have not, and hopefully,

never will reach the stage in 'Alabama at which a stone cold computer

is dropped in a black robe set up behind the bench, and plunged into
begin service as circuit judge"5

1. 47, L.u.R.' at 386.

2. Notes, the appearance of justice, judges verbal and non-verbal
behaviour in criminal jury trials, v. 38, Stanford Law Review,
1985-86, p. 89.
3. 349 U.S. 133.
4. Ibid at p. 136.
5. 209 A. La, 339.
6. Ibid at 342-43.
 305

It is true, they argue, that, "Interest is so remote, trifl­

ing and insignificant that may fairly be supposed to be in capable

of affecting the judgement or of influencing the conduct of an

individual, out except in cases resting upon such reasons, we do

not see how the legislature can have any power to abolish a maxim

which is among the fundamentals of judicial authority"The courts

began to consider whether the circumstances surrounding the trial

would create in the mind of the litigant a reasonable apprehension

that he would not receive a fair trial. This gave birth to the second

test of bias which is known as subjective test.

Subjective Test:

This test is based on reasonable apprehension of reasonable

man fully apprised of the facts. It has been realised that in cases

of bias the necessity is not to prove actual bias but to prove that

the position is such that other party cannot reasonably form the

impression that his case might not be given an unbiased hearing.

2
Thus, Lush J. observed in Serjeant and others v bale : "The law

does not measure the amount of interest which a judge possess. If

he has any legal interest in the decision of the question one way

he is disqualified, no matter how small the interest may be. The

law in laying down this strict rule, has regard not so much perhaps

to the motive which might be supposed to bias the judge as to the

susceptibility of the litigant parties. One important object, at all

1. Cooley, Constitutional Limitations, 7th Ed. at 594.

2. (1877) 2 Q.B. 558.
 306

events, is to clear away every thing which might engender suspicion

and distrust of the tribunal and so to promote the feeling of confi­

dence in the administration of justice which is so essential to

social order and security"}

famous dictum that justice should not only

After Lord Hewart's
seen to be
be done but should manifestly and undoubtedly be/done,2 in 192 7 in

R v Lssex justices, ex-parte Perkins^ Avory J. quoting the judgement

of Lord Hewart; observed, "We have here to determine, however, wheth

er or not there might appear to be a reasonable likelihood of his

being biased. If there might then justice would not seem to be

applicant to be done and he would have a right to object to the

clerk acting as such. I must conclude that, though the clerk to the

justices and the justices did not know that his firm had acted for

the applicant's wife, the necessary or atleast the reasonable, impr­

ession on the mind of Jthe applicant would be that justice was not

being done, seeing that the solicitor for his wife was acting with

the justices and advising them on the hearing of summons which she
had taken out against him"'} In this case the presence of the solici­

tor, the clerk to the justices who had advised the wife about that

state of her matrimonial affairs at the hearing could possibly have

fthad an influence on the tribunal. However, at a later stage, when

the case was before the justices it was proved and accepted as

1. Ibid at 567.
2. (1924) 1 K.B. 256 at 259.
3. (1927) 2 K.B. 475.
4. Ibid at 488-89.
 307

proved, that the solicitor himself had no knowledge whatever of the

fact that his clerk had on this former occasion advised the wife.

Thus it was the plainest possible case in which the administration

of justice was not influenced with in any way by any actual bias

on the part of the clerk. Nevertheless the order was quashed on the

appeal on the ground that an impression on the mind of jthe applica­

nt would be that justice was not being done to him. Thus the reason­

able impression that justice is not being done is to be avoided.

Lord Esher M.R. gave a definite shape to this test in Eckersley

v Mersey Docks and Harbour Board^ He declared that, "Not only must

they be not biased, but that, even if it be demonstrated that they

would not be biased, they ought not to act as judges in a matter

where the circumstances are such that people, not necessarily reason­
able people, would suspect them of being biased"^ Again the same

Lord observed in Allinson v General Council of Medical Education

3
and Registration , that, "The question is not, whether in fact he

was or was not biased. The Court cannot inquire into that. There is

something between these two propositions. In the administration of

justice, although not a legal public Court, are acting in a similar

capacity, public policy requires that, in order that there should

be no doubt about the purity of the administration, any person who

is to take part in it should not be in such a position that he

4
might be suspected of being biased". In this judgement Lord Esher
5
M.R. referred to R v Allan and Leeson v General Council of Medical

1. (1894) 2 Q.B. 667.

2. Ibit at 671.
3. (1894) 1 u.B. 750.
4. Ibid at 758-59.
5. 4 B&S 915 (122 E.R. 702)
 308

Education and Registrationj In R v Allan Joseph Hodgson was convict­

ed under the Salmonfisheries Act,1861- 24-15 Vict.C. 109 Sec.20 on

an information laid against him by Robert Little, who was superint­

ending watcher appointed by the Tees Salmon Fisher Land Owner &sso

ciation. The convicting justices were members of the Association

and one of them was a member of the Committee and had been present

at a meeting of the Association which authorised proceeding to be

taken against Hodgson. On the appeal the Queens Bench observed thr­

ough Cock Burn C.J. that, "This rule must be made absolute. It is

impossible to hold consistently with the principle which have been

established by decided cases, and are founded on the very essence

of justice, that these magistrates where competent judge, upon the

occasion in question It is impossible to say that persons who

are parties to a criminal proceeding as prosecutors, can act as

justices with jurisdiction to convict summarily on the hearing of

the proceeding, and Mellor J. said, "It is highly desirable that in

proceeding under such a statute as this justice should be administ—

i,2
ered by persons who cannot be suspected of improper motives • Comm­

enting upon this Lord Esher M.R. said in - Allinson v General

3
Council of Medical Education and Registrations: "I think that if

you take that phrase literally it is somewhat too large, because

I know of no case in which a man cannot Jbe suspected. There are some

people whose minds are so perverse that they will suspect without

any ground whatever. The question of Jincapacity is to be one 'of

substance and fact', and therefore seems to me that the man's posit­

ion must be such as that in substance and fact he cannot be

1. 43, Ch.D. 366.

2. Ibid at 926.
3. (1984) 1 Q.B. 750.
 309

suspected. Not that any perversely minded person cannot suspect

him# but that he must bear such a relation to the matter that he

cannot reasonably be suspected of being biased. 1 think, that for

the sake of the character of the administration of justice we ought

to go as far as that, but I think we ought not to go any further".

In Lesson v General Council of Medical [Link] Registra-

2
tion , the General Council of Medical Education and Registration,

acting under the powers of the Medical Act, 1858, held an enquiry

in which they adjudged a medical practitioner to be guilty of in­

famous conduct in a professional respect, and removed his name from

the register of medical practitioners. Two members were the members

of the Medical Defence Union, whose object was to protect the chara­

cters of medical practitioners and to suppress and prosecute unauth­

orised practitioners. It was alleged that two of the judges were

interested parties being members of the body who were the prosecu­

tors. That is sufficient to invalidate the enquiry. The court held

that thosetwo members were not the interested parties and made

certain important remarks with regard to bias. Cotton L.J. observed:

"Ofcourse, the rule is very plain that no man can be plaintiff, or

prosecutor in any action and at the same time sit in judgement to

decide in particular case - either in his own case or in any case

where he brings forward the accusation of complaint on which the

order is made, ... They were not in the ordinary sense judges, but

they had to decide judicially as to whether or not the complaint

1. Ibid at 759.
2. 43, Ch.D. 3 66.
 310

against Dr. Lesson was well founded’.'^ Commenting upon thiscase Lord

Esher, M.R. observed: "But Lesson's case also decides that there are

other relations to the matter of a person who is to be one of the

judges which may incapacitate him from acting as a judge, and they

held that the crucial question is, as Bowen, L.J., said, whether in

substance and in fact one of the judges has, in truth, also been an

accuser. What is the meaning of that? The question is to be one of

2
substance and fact in the particular case".

3
In R v Milledge and others justices of Weymouth Chief Justice

Cock-burn opined that the Councillors who were justices had such an

interest as might give them a bias, in the matter and consequently

they should have not sat as justices upon hearing of the summons,

since they were assisted in the hearing of the summons, their decis­

ion is a biased decision. The reasonable suspicion test was also

4
recognised in R v Gaisford. in this case the justice, who had moved

the resolution, adjudicated with another justices and made an order

directing the heap to be removed and the proceeds of the sale to be

applied to the repair of the high way. Mathew, J. was of the opinion

that the decision of the justices should be quashed, he observed:

"Two grounds of objection have been taken to the decision of the

justice; first, it is said that he has taken such a part in initiat­

ing these proceedings that he must be deemed to be within the rule

disqualifying a magistrate from sitting on the ground of bias;

secondly, the more techincal point is taken that he had a pecuniary

1. Ibid at 379.
2. Allison v General Council of Medical Education and Registration,
1 Q.B. 750 at 758.
3. 4 Q.B.D. 332-333.
4. (1892) 1Q.B. 381.
 311

interest in the result. It was argued on his behalf that it was

incumbent on the complainant to show that the justice was in fact

influenced; but, in my opinion, it is sufficient to show, as was

held in Reg. v Milledge^ that he might have been influenced; for

in such a case it is not likely that a magistrate should knowingly

be under the influence of an improper bias, although he may be placed

in such a position as to be influenced, or to run the risk of being

2
influenced, unconsciously to himself, in his decision”.

Thus, in this case the judge was unaward of the objection to

his acting, yet it was realised that his sitting in the adjudicat­

ion process might engender the suspicion of bias. This aspect of

3
reasonable suspicion of bias was emphasized in 1895 in R. v Huggins.

In this case Mr. Martin, the choice pilot was one of the justices

who ruled the conviction of Thomas James Clancy because he was an

unqualified pilot. The defendent Clancy challenged the conviction

on the ground that Mr. Martin, one of the convicting justices, had

an interest in the conviction. Wills J. made a detailed description

with regard to the rule against bias. He observed, "In these cases

there is always a certain degree of difficulty, owing to the confu­

sion which has arisen from a failure to clearly distinguish between

the different classes of cases in which decision have been quashed

upon certiorari on the ground of the improper constitution of the

tribunals which gave them, namely, cases in which one of the

tribunal had a pecuniary interest, he nevertheless had a bias, and

1. 4 Q.B.D. 332 -333.

2. 1821, 1 Q.B. 381 at 383.
3. (1895) 1 Q.B. 563.
 312

cases in which he filled the part of prosecutor as well as judge#

and also from a failure further to distinguish between cases in

which the decisions impugned were case of regular judicial tribun— ..

als, and [Link] which they were the decision of an administrative

rather than of a judicial body# but were nevertheless opposed to

ordinary notions of justice. The principles which are applicable

in these several classes of cases are not in all respect identical

Here there is no question of Martin having had any pecuniary inter­

est in the result of the litigation, nor is it suggested that he

had any actual bias against the defendant. The question is whether

there was a reasonable apprehension of bias. It appears that Martin

belongs to a small class of privileged persons for whose protection

these proceedings were taken. Under thosecircumstances I cannot help

thinking that it would not be in the general interests of justice

that the conviction should be allowed to stand. It is impossible

to overrate the importance of keeping the administration of justice

by Magistrate clear from all suspicion of unfairness. Suppose that

all these six justices had been licenced pilots# or supposed, on

the other hand, that they had all being unlicenced pilots in neither

case would any one venture to say that the tribunal would have been

a fair one. But if that be so, then the objection must equally exist

when only one out of the six is a licenced pilot# it is far safer

to enlarge the area of this class of objections to the qualification

of justices than to restrict it. will J. therefore# has laid down

that# it is of the utmost importance that the administration of

1. Ibid at 565.
 313

justice must be clear from all suspicion of unfairness and. that the

area of the class of objections to the qualification of adjudicat­

ing persons must be enlarged and it should not be restricted.

Thus, the actual bias may exist or may not exist but the circu­

mstances might well be that a reasonable apprehension of bias may

be inferred, the appearance and circumstances are such that others

may reasonably apprehend that he is or may be biased, bysart, J. has

very aptly observed, "The law is clear that no person shall act as

a Judge in any case in which he is accuser or procecutor, or in which

he has, or may reasonably appear to have, any interest or bias in

favour of or against any party thereto. The inhibition goes not only

to the properiety of his so acting, but to his very capacity to act

at all, so Jthat if he does purport to act, his judgement will be set

aside as a nullity. Thisgreat principle of our law applies to all

cases without exception in which a person is called upon to act

judicially, . and extends to every member of the judicial tribunal,

and to every judicial act. The courses of justice must be pure and

undefined, and all judicial officers, like Caesar's wife, must be

above suspicion in the exercise of their judicial functions".

2
In Cooper v Wilson it was held by Greer L.J. that in keeping

the Chief Constable closeted with them while they considered their

decision, they had occasion,

"a reasonable suspicion that justice
3
does not seem to have been done". It was emphasized that the

1. Nichols v Graham (1937) 3,D.L.R. 795 at 799.

2. (1937) 2 K.B. 309.
3. Ibid at 324.
 314

impression that justice should appear to be done than it should

in fact be done is more important. Thus Prof. Garner observes that,

1
"the appearance of bias is regarded as seriously as is actual bias «

The most important pronouncement on the appearance aspect of

bias has been made by Lord Hewart C.J. in R v Sussex Justices, ex-
2
parte McCarthy. In this case Whitworth, the driver of a motorbike

which was involved in a collision with McCarthy's motorbike, made

a claim through his solicitors for damages from McCarthy. In addit­

ion, a criminal prosecution was brought for dangerous driving and

McCarthy was convicted by a magistrate's court. The person who

acted as the clerk to the justices on the day in question (the

deputy clerk) was a partner in the firm of solicitors which was act­

ing on Whitworth's behalf. He had retired with the Justices, but,

according to the justices' affidavit, he had not referred to the

case during his retirement with them and he had not been consulted

whilst the justices were coming to their decision. McCarthy's

solicitor stated that he (the solicitor) had been unaware of the

deputy clerk's interest in the case until the justices had retired;

however, he brought the matter to their attention when they return­

ed to court. McCarthy later sought certiorari to quash his convict­

ion." Lord Hewart C.J. observed that "It is clear that the deputy

clerk was a member of the firm of solicitors engaged in the conduct

of proceedings for damages against the applicant in respect of the

same collision as that which gave rise to the charge that the just­

ices were considering. It is said, and, no doubt, truly, that when

Administrative Law,4th Edn.p. 123.

2. (1924) 1 K.B. 256.
 315

that gentleman retired in the usual way with the justices, taking

with him the notes of theevidence in case the justices might desire

to consult him, the justices came to a conclusion without consulting

him, and that he scrupulously abstained from referring to the case

in any way. But while tnat is so, a long line of cases show that

justice should not only be done, but should manifestly and undoubt­

edly be seen to be done. The question, therefore, is not whether in

this case the deputy clerk made any observation or offered any cri­

ticism which he might not properly have made or offered; the quest­

ion is whether he was so related to the case in its civil aspect as

to be unfit to act as clerk to the justices in the criminal matter.

The answer to that question depends not upon what actually was done

but upon what might appear to be done. Nothing is to be done which

creates even a suspicion that there has been an improper interfere­

nce with the course of justice"]’ In fact the Dicta of Mellor J. in

R. Allan that it is highly desirable that justice should be admini-

3
stered by persons who cannot be suspected of improper motives", had

its shadow on the dicta laid down by LOrd Hewart C.J. when he said

that, "Nothing is to be done which creates even a suspicion that

4
there has been an improper interference with the course of justice".

It is clear, therefore, that the fountain of justice must not

only be pure, it must also appear in the eyes of other persons that

it is really pure. The improper motives or other actions on the part

1, Ibid at 259.
2. 4 B.N.S. 915.
3. Ibid at 926.
4. Supra Note 1.
 316

of justices or adjudicating officers may create a real suspicion

of bias. In order to engender the public confidence in the judicial

system this purity and appearance has to be maintained at all cost.

In 1937 in R v Salford Assessment Committee^ ^lesser J. obser­

ved that, "I apply these principles to the present case and ask

myself whether Mr. Ogden might not reasonably suppose that justice

would not be done by the assessemtn committee when the advisor to

the committee might of necessity be acquainted with the preparation

2
for the proceeding of his opponents, the rating committee". In 1939
3
in Cottle v Cottle it appeared that the chairman of the bench,which

was considering the alleged desertion by the husband, was a friend

of the wife's mother. The husband objected to the presence of the

chairman, but the chairman overruled the objection saying that he

had no knowledge of the case. The case was remitted for new trial

by the chancery division before a bench of which the said chairman

was not a member. It was emphasized by the court the impression sho­

uld be created in the mind of the litigant that there is no improp­

er influence with the course of justice. Bucknill J. observe that,

"1 attach as everybody must attach, the greatest importance to the

fact that every litigant in the British Court of justice should be

satisfied that he is having an absolute impartial trial, and that

4
there should be no suspicion of any undue interference". In fact

this observance had a shadow of the dicta of Lord Campbell in Dimes

5
v The Proprietors of the Grand Junction Canal. He observed there

1. (1937) 2 All E.R. 98.

2. Ibid at 103.
3. (1939) 2 All E.R. 535.
4. Ibid at 541.
5. (1852) 3 H.L.C. 759.
 317

that, “This will be a lesson to all inferior tribunals to take care

not only that in their decrees they are not influenced by their

personal interest,but to avoid the appearance of labouring under

-i
such an influence...." Thus, the avoidance of the appearance of

improper motives is the most essential factor in the adjudicating

process. If the reasonable persons start thinxing that the judge is

biased, the deep rooted confidence in the judiciary is destroyed. In

2
1969 in Metropolitan Properties, Co. (F.G.S.) Ltd. v Lannon "Cannon,

a solicitor, lived with his father in a flat in Regency Lodge, the

landlords of which were part of the freshwater group of companies.

Lannon's firm had acted for some tenants in Regency Lodge in their

negotiations with this group and it was 'presumed' that he had cond­

ucted these negotiations. In addition, in the cases of two of these

tenants, the firm had made representations on their behalf to a rent

officer. Lannon assisted his father in certain dealings with his

landlords about the rent of his flat and, in particular, had helped

in the writing of a letter to a rent officer in support of his

father's case. This dispute was unresolved when Lannon sat as Chair­

man of a rent assessment committee which fixed the rent of three

flats in oakwood Court at a figure lower even than that which had

been offered by the tenants of those premises. Oakwood court was

owned by the appellant company, which was a member of the Freshwater

group of companies, and the tenants in these cases were putting

forward arguments which were similar to those advanced in Lannon's

1. Ipid at 793.
2. (1969) 1 Q.B. 577.
 318

father s case. The Divisional Court rejected the company's challenge

to the decision of the rent assessment committee and the company

appealed to the Court of Appeal.

Lord Denning M.R. discussed the grounds of judicial disqualific­

ation and agreed that there was actually no bias on the part of Mr.

Lannon. However, he observed, "In considering whether there was a real

likelihood of bias, the court does not look at the mind of the justice

himself or at the mind of the chairman of the tribunal, or whoever it

may be, who sits in a judicial capactiy. It does not look to see if

there was a real likelihood that he would, or did,in fact favour one

side at the expense of the other. The court looks at the impression

which would be given to other people. Even if he was as impartial as

could be, nevertheless if right minded persons would think that, in

the circumstances, there was a real likelihood of bias on his part,

then he should not sit. And if he does sit, his decision cannot stand.

Nevertheless there must appear to be a real likelihood of bias. Surmise

or conjecture is not enough. There must be circumstances from which a

real reasonable man would think it likely or probable that the justice,

or chairman, as the case may be, would, or did, favour one side unfair­

ly at the expense of the other. The court will not inquire whether he

did in fact, favour one side unfairly. Suffice is that reasonable peo­

ple might think he did, the reason is plain enough. Justice must be

rooted in confidence and confidence is destroyed when right minded

people go away thinking: The judge was biased". £dmund Davis

opined the same when he observed;

1. Supra Note 2 at 599

 319

With profound respect to those who have propounded the 'real likeli­

hood test, 1 take the view that the requirement that justice must

manifestly be done operates with undiminished force in cases where

bias is alleged and that any development of the law which appears to

emasculate that requirement should be strongly resisted I cannot

bring myself to hold that a decision may properly be allowed to stand

even although there is reasonable suspicion of bias on the part of

one or more members of the adjudicating body".

2
Again in 1970 in Hannam v Bradford Corporation , Cross L.J.

observed, "The question is not whether the tribunal will in fact be

biased, bust whether a reasonable man with no inside knowledge might

3 4
well think that it might be biased". In R v Atkinson the court quas­

hed a sentence on the ground that comments made by the judge could

have given rise to a reasonable suspicion that he had discussed with

council during a pre-trial review the possibility that bargain should

be struck. Lord ^carman observed, "In this sensitive area the appear-
5
ance of justice is part of the substance of justice". This observat­

ion seems to be influenced by the famous observation of Lord Atkin

in Bhrager v Basil Dighton Ltd.6 that, "Next to the tribunal being

7
infact impartial is the importance of its appearing so".

1. Ibid at 605.
2. (1970) 1 1 W.L.R. 937.
3. Ibid at 949.
4. (1978) 1 W.L.R. 425.
5. Ibid at 428.
6. (1924) 1 K.B. 274.
7. Ibid at 284.
 320

In 1983 in R v Liverpool City Justices, bx-parte Popping

Ackner L.J, observed, "In our view, therefore, the correct test

to apply is whether there is appearance of bias, rather than wheth­

er there is actual bias"? He warned that, "To our mind there is a

real danger that administrative convenience is being given greater

priority than the requirements of justice"? In fact Lord Ackner

was influenced by the observation of Lord Widgery C.J. in R v

Uxbridge justices, Ex-parte Burbridge4 that, "Would a reasonable

and fair minded person sitting in the court and knowing all the

relevant facts have a reasonable ^suspicion that a fair trial to the

applicant was not possible". In 1985 in Steeples v Derbyshire County

Council^, Webster J. observed that, "But to satisfy the requirements

of natural justice it must not have been properly made, it must also

be seen to have been fairly made.... In conclusion therefore, and

applying the case to which I have referred in my judgement, it is

probable that a reasonable man, not having been present at the meet­

ing when the decision was made and not knowing of my conclusion as

to the actual fairness of it, knowing of the existence and of all

tne terms of the contract, would think that there was a real likeli­

hood that those provisions in the contract which required to county

council and for that matter the joint venture committee to use,their

1. (1983) 1 W.L.R. 119.

2. Ibid at 123.
3. Ibid at 125.
4. The Times, June 20, 1972.
5. Ibid
6. (1985) 1 W.L.R. 256.
 3.21

best endeavour to obtain planning permission and the contract as

a whole has had significant effects on the planning committee's

decision to grant the permission, and accordingly on tnat ground

that decision was either voidable or void"

However, these two tests have been held to be inapplicable

in policy based decisions such these of as planning authorities

since, these are radically different from those of bodies such as

rent tribunals, which decide objectively according to rules. It

has been held in such cases that it is irrelevant that likelihood

of bias may reasonably have been suspected or not because if these

bodies are to be stretched technically, there would be an adminini-

strative impass. The important cases are R v Amber Valley DC ex-p.

2
Jackson , R v [Link] BC ex-p. Investors in Industry Commer-
3 4
cial Properties Ltd. ,
R v Sevenoaks DC ex-p. Tery . Thus, these
5
cases have been preferred to Steples's case. However, the decisions

are not to be welcomed because the distinction between judicial

and administrative functions have been done away in seventies. Comm­

enting on this Prof. Wade says;"These decisions invite the comment

that they might have been based more suitably on the rule of necess­

ity, explained above, than on a distrinetion between judicial and

administrative functions. When Parliament has empowered the same

1. Ibid at 288.
2. (1985) 1 W.L.R. 298.
3. (1985) 1 W.L.R. 1168.
4. (1985) 3 All E.R. 226.
5. (1985) 1 W.L.R. 256.
 322

body both to undertake development and to grant planning permission/

that body must perform both functions as best as it can, despite the

effect that one may have upon the other that is the problem of the

'indivisible authority' already encountered. But it does not mean

that the reasonable man test' cannot apply to an administrative

decision, as it has been applied in the past, where it affects only

particular members of a deciding body, who can be disqualified with­

out making that body incompetent to act" J"

In 1988 in University College of Swansea v Carnelius the reas­

onable suspicion test was applied by the court and it was emphasized
2
that appearance of bias has to be avoided. In 1989 in Jeyaretnam v
3
Law Society the Privy Council observed that, "It would be absured

that the Chief Justice should not be able to disqualify himself from

sitting if the advocate and solicitor facing disciplinary charges

was either a close relative or a sworn enemy or for any other good

reason. The refusal of the objection was unfortunate because the

court was to be invited to go behind and condemn Wee Chong Jin [Link]

own decision on the appeals from Judge Khoo and his later refusal

to reserve questions of law for the Court of Criminal Appeal. It

was quite unacceptable that he should preside. Justice might be

4
done, but certainly could not be seen to be done • In this case

the solicitor's name was struck off the list because of his convi­

ction by a competent court. The chief Justice Mr. Wee Chong Jin was

1. Administrative Law, VI Edition, 1988, p.485-86.

2. The Times, July 13, 1988.
3. (1989) 2 W.L.R. 214.
4. Ibid at 218.
 323

one of the judges who preliminary heardthe case. Later on when the

case went to the appeal, the Chief Justice also sat on the bench.

the solicitor objected to his sitting on the ground that it would

be inappropriate in the light of the history, although no bias or

prejudice was alleged against him. The court rejected this objection.

It is true that there was actually no bias but a reasonable man could

have suspected that justice would not be seen to be done. This is why

the Privy Council sustained the objection of the solicitor and held

it to be absured that the Chief Justice should not be able to disqua­

lify himself,if the solicitor objects to his sitting because of the

previous history of the case. It is clear, therefore, that if a judge

is a close relative or a sworn enemy, he should not sit in the court

or tribunal, if he takes part in the adjudicating process, that

decision would be void.

The suspicion must be of a reasonable person. It must not be

■1

a suspicion of a fool, or of a capricious or morbid person. Leggot

J. has observed that the real criteria of the reasonable test is

that, "Whether a reasonable and fairminded person sitting in a court

and knowing all the relevant facts, would have a reasonable suspici-

on that a fair trial would not be possible". In fact Lord Esher,

M.R. observed as early as in 1894 that, "I know of no case in which

a man cannot be suspected. There are some people whose minds are so

perverse that they will suspect without any ground whatever. The

1. Cook International Inc. v BUH Jean Devaus. The Times, April 10,
1985, Quoted in the Spring Issue of Public Law, 1986.
 324

question of incapacity is to be one "of substance and fact", and

therefore, it seems to me that the man's position must be such as

that in substance and fact he cannot be suspected. Not that any

perversely minded person cannot suspect him, but that he must bear

such a relation to the matter that he cannot reasonably be suspect-

ed of being biased". In 1898 in R v Taylor and others, justices, and

Laidler Ex-parte Vogwill. Mr. Justice bay observed that,"He did

not see how any reasonable person, knowing the facts of the case,

could suspect that Mr. Hunting was influenced by bias. It was true

that persons entirely ignorant of all the facts were always prone

to suspicion. It was, of course, much to be regretted that any one

should do anything at any time which could make fools suspect......

It could not be said that any one with a neutral mind could reason­

ably form a suspicion as to the behaviour of the justice on a case

3
such as this".

It is, clear, therefore, that the standard of a morbid person

cannot be used to establish the reasonable suspicion. Sometime people

make allegation without going into the real merit of that allegation.

That should also not be a criteria. Sir Huge Wooding has said that,

"Even when man's passions are noble they are too often diverted from
their true course"? Thus, the reasonable apprehension must be based

on the reasonable apprehension of a reasonable man fully apprised of

1. Allinson v General Council of Medical Education and Registration,

1894, 1 Q.B. 750 at 759.
2. 14, The T.L.R. 185.
3. Ibid
4. "Law reforms ndcessary in Trinidad and Tabago" (1966)
9 Can. B.J. 292 at 298.
 325

the facts. It is in the interest of justice that such allegations

must not be stressed too far. It has been observed that, "Our judi­

cial system has now achieved a sophistication which should permit

realistic approach to the question of disqualification of judges.

Extreme solutions of change at the will of Ithe suitor, or only in

the presence of a narrowly defined substantial interest, have only

a possible administrative simplicity to offer to counteract their

inadequacy in providing a fair result on the particular case. Of the

two mediate solutions which have been proposed, the reasonable appre­

hension" doctrine appears superior. Its subjectivity rightly recogni­

zes that honest belief in the presence of bias can be almost as

serious a handicap to judicial efficiency, if not justice itself,as

actual prejudice. Any well functioning system of disqualification

should, of course, require immediate challenge to the eligibility

of the juoge as soon as the facts leading to apprehension of bias

become Inown; strict insistence upon waiver in the absence of such

protest is necessary to prevent last minute "discovery" of bias by

losing parties "combing" the record for grounds for reversal upon

appeal. It is to be hoped, however, that an ever increasing number

of jurisdictions will adopt this flexible standard for judging the

unceasing claims of litigants that they have been denied justice"J

Thus, justice must be seen to have been done not according to

the standard of unreasonable and irresponsible persons, it must also

not be based on the satisfaction of perversly minded persons who

1. Notes, 51# The Yale Law Journal, 1941, 169 at 175.

 326

hold unreasonable and baseless suspicions. Thus, Shankaran J. obser-

ved in Abu Backer v Advocate General of Travancore-Cochin that

From the nature of a particular decision it may not always be poss­

ible to know that the decision is the result of actual bias. All

that can be made out is that the position of the judge in relation

to the parties between whom he had to adjudicate, was such that it

could be reasonably inferred that he could not deal with the matter

dispassionately with an open, impartial and unbiased mind. Mere

possibility of suspicion of bias would not be a sufficient ground

to justify an order setting aside the decision on the ground that

it is vitiated by bias. There must be real and substantial grounds

2
to sustain the suspicion of bias as being legitimate and reasonable”.
3
Earlier in 1925 in Amar Singh v °adhu Singh , Mr. Chief Justice

Shadi Lal observed that, '"It is not sufficient for the applicant

for transfer merely to allege that he would not gain an impartial

trial, but he must place before the court the facts which gave rise
4 5
to this belief in his mind". In Murlidhar v Kadam Singh the MAdhya

Bharat High Court dubbed as a preposterous suggestion, which would

upset the whole structure of the administration of justice, that a

person, who was the chairman of an election tribunal, was disquali-

fied on the ground of bias because his wife was a member of ' Congt'
w
ess Party and the applicant whose election was in question before

the tribunal, had defeated a Congress candidate. It was observed by

1. A.I.R. 1954, TRA-CO 331.

2. Ibid at 347.
3. A.I.R. 1925, Lahore 361.
4. Ibid at 363.
5. A.I.R. 1954 M.B. Ill
 327

the court that, "Now I attach as everybody must attach, the greatest

importance to the fact that every litigant in a court or a Tribunal

should be satisfied that he is having a fair and impartial trial. A

long line of cases shows "that it is not merely of some importance

but is of fundamental importance that justice should not only be

done but should manifestly and undoubtedly be seen to be done". But

I think it would be preposterous to suggest that there is bias, or

a possibility of bias on the part of Mr. Pagnis because of the mere

fact that his wife is a member of the Congress party and the appli­

cant defeated a congress candidate at the bye-election. If we were

to put any such exacting test upon the right of Judges or members

of Tribunal to sit, it might very well be that the whole structure

of the administration of justice would be upset".

Really speaking the rules against bias cannot be confined ' to

a single test. Both the real likelihood and the reasonable suspicion

test are to be harmonized if one wants to get justice from an unbia­

sed and impartial Tribunal. Thus, Vaughan Williams L.J. observed

that in applying the real likelihood test, the court considered the
2
matters as "a reasonable man". A reasonable person must sense the

real likelihood of bias. Thus,the existence of real likelihood of

bias is to be suspected by a reasonable man. In fact the two testfe

have been fluctuating since the beginning. Earlier the court denied

the existence of the reasonable suspicion test by relating nonpecuni-

ary interest to only the real likelihood test and the peculiar

1. Ibid at 113.
2. R v Sunderland justices (1901) 2 K.B. 357 at 373.
 328

substantial interest doctrine. "A real likelihood of bias means at

least a substantial possibility of bias"J Gradually the "pendulum

has now swung towards a test of reasonable suspicion, founded on

the apprehension of a reasonable man who .had taken reasonable step

to inform himself of the material facts. Reasonable suspicion test

looks mainly to outward appearance, real likelihood test focus on

the court's own evaluation of the probabilities; 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.- For the courts

to retain both tests as alternative methods of approach is unlikely

to cause serious uncertainty, and there may be advantage in presev-

ing a measure of flexibility. It would be surprising, surely, if a

court were to refuse to set aside a decision on the ground that a

reasonable observer could not have discovered facts that subsequently

came to light and which indicated to the court that there was a
2
real likelihood of bias in the adjudicator".

Prof. Wade is of the view that, "Much confusion has been caused

by the concurrent use of two differently formulated tests for dis­

qualifying bias. Many judges have laid down and applied the ‘real

likelihood' formula, holding that the test for disqualification is

whether the facts give rise to a real likelihood of bias, and this

test has naturally been emphasised in cases where the allegation of

bias was excessively far fletched. At the same time it was frequen­

tly emphasized that justice must be seen to be done, and that no

1. de Smith, Judicial Review of Administrative Action, IVth Edition

1980 at p.262.
2. Ibid at 263-64.

J
 329

person should adjudicate in any way if it might reasonably be thou­

ght that he ought not to act because of some personal interest. In

one case it was even said that the rule for judges of all kinds was

that they must be free from even unreasonable suspicion of bias#but

\that dictum is recognised as having gone too far.

In the great majority of cases either test will lead to the

same result. This might be so in all cases if 'likelihood' is given

the meaning of possibility rather than probability. For if there is

no real possibility of bias# no reasonable person would suspect it.

But several judicial statements, more naturally, equate 'likelihood'

with 'probability' and then a difference emerges. In Dimes v Grand

Junction Canal Co. for example, the Lord Chancellor's shareholding

in the defendant company did not create a real probability of bias,

but it created a possibility which a reasonable man might have susp­

ected. In a liquor licensing case of 1960 it was pointed out that

the two tests led to different results, but in that there was the

special circumstance that the statute protected the validity of acts

done by disqualified justices, so that the court was not entitled

to quash their order unless the facts raised a likelihood of bias

over and above the technical disqualification".

Despite the assertion that in practice the two tests have

much in common with one another and that in the great majority of

cases either tests will lead to the same result, there are comment-
I

ators who prefer reasonable suspicion test. Prof. Francis Allexis

1. Administrative Law, ^ixth Edition, 1988, p. 483-84.

 330

thus concludes that, "Nor would this article encourage the adoption

of a more sweeping test for bias than is afforded by the reasonable

suspicion test, since this will unwarrantably hinder the business of

administration. On the ground that the criterion used by the rule

against pecuniary interest is too severe on adjudicators, its repla­

cement by the reasonable suspicion test is recommended. All these

submissions, however, are predic ted on therecognition of the disti­

nction between the real likelihood and the reasonable suspicion

tests advanced in this article so that reasonableness and the reason­

able suspicion test might play their full role in establishing

bias"]' Prof. Wade was also initially of the view that, "For the true

test is whether a reasonable man would suspect that there iaight be

bias. All members of the court agree, however, that reasonable man

is arbiter. In questions of propriety of this kind appearance is

2
almost more important than reality". Prof. Edward G. Burge is of

the view that, "A more useful view is that there is only one reason

for disqualification; that a party reasonably believes that judge

may be partial. Under this view personal knowledge, prior relation­

ship and financial interest are not independent reason justifying

disqualification, but merely indications of potential partiality.

This test focuses on the reasonableness of the litigant's belief

in the existence of bias, which is more concerete than a nebulous

notion of how biased a judge appears to the society. Although, this

test may be difficult to apply, courts certainly have more experi-

1. Reasonableness in the Establishing of Bias, Public Law,1979,

143 at 162.
2. Bias - A Question of Appearance or Reality. 85, L.Q.R.1969,
23 at 24.
 331

ence at passing on the reasonableness of a party’s conduct and

beliefs than they do at determining apparent prejudice. This test

also avoids the practical problems of proving actual bias and is

thus, superior to both the actual bias and the appearance of bias

approaches.

In focusing on the reasonable belief of bias disqualification

law has a unified, consistent perspective. Rather than asking wheth­

er the financial interest is that of a rate prayer or a share hold­

er, the issue is whether it is reasonable or unreasonable to believe

that financial stake would affect the judge's judgement"?’

"Jain and Jain" maintain that, "It may be that in most cases,

the result may be the same whichever formulation is applied, but at

present the "reasonable suspicion" test appears to be in favour with

the courts, and, in essence, the "suspicion" test seems to be some­

what broader than the "real likelihood" test. The position, there­

fore, is that proof of actual bias on the part of the adjudicator

is not necessary. What is necessary is that, in the opinion of reas­

onable men, there is a real likelihood of bias in the circumstances

of the case. The reason for not insisting on actual proof of bias

is that it is extremely difficult to prove, on a balance of probab-

ilit s, that a person required to act in an adjudicative capacity

was in fact biased. Bias is an attitude of mind leading to a pre­

disposition towards the issue. Because of this circumstance, the

1. Meeting the Challenge: Re-thinking Judicial Disqualification,

69, California Law Review, 1445 at 1481 (1981)
 332

law looks "to suspicion" rather to the "likelihood" of bias arising

from the factual situation in which the particular adjudicator is

placed" J-

lhe recent judicial trend emphasises that justice should not

only be done but manifestly and undoubtedly be seen to be done. Thus,

"under this view the court consider whether the circumstances surr­

ounding the trial would create in the mind of the litigant a reason­

able apprehension that he would not receive a fair trial. The great

advantage of this subjective test is that it enhances public confi-

2
dence in the impartiality of the courts". The court of appeal thus
3
observed in R Bristol Crown Court, ex-p. Cooper "Applying the test

of the fairminded by Stander apprised of all the relevant material

the justice's presence on the appeal had created no reasonable appr­

ehension that the applicants had been thereby deprived of a fair

4
hearing".

However, in the complex social necessities of the present

world, it would not b>e judicious to adopt a single test. The real

likelihood test must be dependent upon the reasonable satisfaction

of a reasonable person. Prof. H.F. Rawlings is of the view that,

"The present writer would suggest that the rule is applied in such

a variety of situations that to adopt a single test is wrong in

principle. Rathrr, it is thought preferable to envisage the various

tests "reasonable suspicion", "real likelihood", and "actual bias"

1. Principles of Administrative Law, Fourth Edition,1986, p.223.

2. Notes, The Yale Law Journal, vol. 51, 169 169 at 172.
3. (1990) 1 [Link] 1031, :
4. Ibid at 1036
 333

as gradations in the civil standard of proof, and to realise that

adoption of one test rather than another in particular circumstan­

ces will have to be justified on general considerations of the

policy of judicial review. Reference has already been made to

policy considerations in choosing between the "reasonable suspicion

and real likelihood" test in "association" and "conduct of proceed

ings cases. In cases of the Anderton and Barnsley type, where the

legislature had clearly intended to limit the operation of the

nemo judex rule, the courts, it is submitted, should not be enthu­

siastic to permit review. The adoption of an "actual bias" test

in such circumstances would protect the vast majority of administ­

rative decisions from review, yet offer the citizen the possibility

of judicial protection in the most extreme instance of administrat-

iv bias"l

Thus, the satisfaction of the reasonable person, that the

tribunal is impartial and unbiased, is most important. The import­

ant point is the impression of the litigant. The court’s satisfac­

tion as to the existence of actual bias must be coupled with the

impression of the litigant that justice is really being done. We

may conclude this topic with the conclusions made by F.A. Trindade.

After discussing many aspects of these tests, he concludes that,

•’(1) It is not necessary to show actual bias, a real likelihood of

bias is sufficient. Further, even if the court is absolutely sati­

sfied that there was no actual bias, an applicant can succeeed if

he can show a real likelihood of bias.

1. The test for the Nemo Judex Rule, 1980, Public Law, 122,
at 126-27.
 334

(2) The proper test of a real likelihood of bias is satisfaction

by a reasonable person in the position of the applicant of a real

likelihood of bias and not satisfaction by the court of a real

likelihood of bias.

(3) Satisfaction by a reasonable person in the position of the

applicant of a real likelihood of bias is an objective test and

is no more "reasonable suspicion" than satisfaction by the court

of a real likelihood of bias.

(4) If satisfaction by a reasonable person in the position of the

applicant of a real likelihood of bias is the proper test and is

applied, ithen questions of "reasonable suspicion" will become irre­

levant. The integrity of the principle reasserted by Lord Hewart in

R v Sussex Justices, ex-p. McCarthy will be maintained though the

principle that "(n)othing is to be done which creates even a suspi­

cion that there has been an improper interference with the course

of justice will be varied to "whether or not a reasonable man in

all the circumstances might suppose that there was an improper

interference with the course of justice "

(5) a reasonable person in the position of the applicant will be

endowed with the knowledge of not only "the materials in fact ascer­

tained by the party complaining, but (also) such further facts as

he might readily have ascertained and easily verified in the course

of hisenquiries".

(6) The proper test of bias is therefore, a real likelihood of bias.

The proper test of a real likelihood of bias is satisfaction by a

 335

reasonable person in
the position of the applicant that there was
a real likelihood of
bias. This real likelihood is to be deducted
not only from the materials in fact ascertained by the party compl­

aining, but from such further facts as

he might readily have
ascertained and easily verified in the
course of his enquiries".^

1. Notes of cases- The proper test of a Real Likelihood of Bias,

Malaya Law Review, vol. 7, 1965, 170 at 175.
 336

Test Applied by the Indian Judiciaiy:

The Indian Judiciary, from the very beginning, has been laying

stress on the reasonable suspicion of bias. It is not correct to

say that the Indian Judiciary has adopted the Blackburn tradition

of real likelihood of bias. It becomes very difficult on this point

to agree with Prof. A.T, Markose that, "Indian Law follows in pract­

ice the Blackburn tradition".As early as in 1925 in Amar Singh v

2
Sadhu Singh, the Chief Justice of Lahore High Court [Link] Shadi

Lal, declared that, "The Court should not make an order for trans­

fer unless it is satisfied that on the facts disclosed in the appli­

cation and affidavit there arises a reasonable apprehension that the

applicant may not have a fair and impartial trial. But at the same

time, what the Court has to consider is not-merely the question

whether there has been any real bias in the [Link] of the presiding

judge against the applicant, but also the further question whether

incidents may not have happened which, though they may be suscepti­

ble of explanation and may have happened without there being any

real bias in the mind of the judge, are nevertheless such as are

calculated to create in the mind of -the applicant a justifiable

apprehension that he would not have an impartial trial”• Again in

1940 the Patna High Court held in Suraj Mohan Thakur v Rama Prasad

Pandey4 that, "Although more therefore, it is incumbent on such an

officer to see that in the discharge of his functions not only are

1. Judicial Control of Administrative Action in India, A study in

Methods, 1956, p. 216.
2. A.I.R. 1925, Lahore 361.
3. Ibid at 363.
4. A.I.R. 1940, Patna 37.
 337

none of these important qualities wanting but none shall even appear

to be wanting. And particular care should be taken to avoid even

the suspicion of bias in dealing with the rights of parties or the

decision of a subordinate officer of a different religion or commu-

mty from oneself". The Allahabad High Court insisted upon this

very fact in 1952 in Moti Lal v State? Sapru J. referred to the

case of Cooper v Wilson in which it was emphasized that the appear­

ance of the possibility of bias is sufficient to deprive the decision

of all judicial force and to render it a nullity. His Lordship made

it clear that reasonability of the real likelihood of bias is the

4
criteria. It is true that Shankaran J. held in Abu Backer'scase that

mere possibility of suspicion of bias would not be a sufficient

ground to annul the judgement, yet he underlined the point that there

must be real and substantial grounds to sustain the suspicion of bias

as being legitimate and reasonable.

Thus, it cannot be concluded, as Prof. Markose has tried to

conclude, that from the very beginning the Indian Judiciary followed

the Blackburn tradition of real likelihood of bias. On the other hand

it is very clear that the Indian Judiciary adopted and believed in

*
the reasonable suspicion of bias. K.B Nambyar points out: "Whatever

may have been the limitations put on Lord Hewart's principle in the

past, now the position seems to be gaining ground in England and in

India that the basis of the jurisdiction relating to bias is no

1. Ibid at 37-38.
2. A.I.R. 1952, Allahabad 960.
3. (1937) 2 K.B. 309.
4. A.I.R. 1954, Traon Co. 331.
 338

longer the real likelihood of bias but whether a reasonable person

OV
would think that the tribunal^/authority was biased"^

Dr. [Link] has remarked: "Till recently, the test of bias

in England used to be whether there was a real likelihood of bias

and it was the task of the courts to decide whether such a likeli­

hood existed. Now the test has been formulated that real likelihood

of bias should be construed with reference to right minded person.

2
In India from the beginning this broader test has been adopted."

3
In 1957 in Manak Lal v Prem Chand Indian Supreme Court adopt­

ed the reasonable suspicion test. The court was satisfied that ther

was no real likelihood of bias but that there was a reasonable susp­

icion. Actual proof of prejudice was not necessary, reasonable

ground for assuming the possibility of bias was sufficient. The

court said that, "the judge should be able to act judicially, object­

ively and without any bias. In such cases the test is not whether

in fact bias has affected the judgement, but whether litigant could

reasonably apprehend that bias be attriibuted to a member of a tribu­

nal might have operated against him in the final decision of the

tribunal. Actual proof of prejudice in such cases may make the appe­

llant's case stronger but such proof is not necessary in order that

the appellant should effectively raise the argument that the tribun-
4 5
al was not properly constituted". In A.K. Kraipak v Union of India

1. Natural Justice, L.Q.R. 86 (1970) p.4.

2. Bias and Administrative Powers, 13, J.I.L.I. 1971, p.362.
3. A.I.R. 1957, S.C. 425.
4. Ibid at 430.
5. A.I.R. 1970, S.C.150.
 339

the court held the real question is not that 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. There must be a reasonable

likelihood of bias. In deciding the question of bias we have to take

into consideration human probabilities and ordinary course of human

conduct”.1

Our Supreme Court has applied this test in number of cases.

2
The important casest are; State of U.P. v Mohd. Nooh 9 Mineral Deve-
3
lopment Ltd. v Bihar , [Link] v Satyanarayan Transport
4 . 5
Private Ltd. Guntur , Harishankar v [Link], Consolidation. In
1973 in S. Parthasarathi v State of Andhra Pradesh^ the Supreme Court

applied the 'real likelihood of bias' test but thiswas to be based

on the 'reasonable apprehension' of a reasonable man fully cognisant

of the facts' which is nothing but the 'reasonable suspicion of bias'

test. The Court used "reasonable ground for believing", "substantial

possibility of bias", and reasonableness of bias. However, the court

finally observed that, "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 diffi­

cult 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 the same case the court hinted at the reason

able possibility of bias in the following words: "In deciding the

1. Ibid at 155.
2. A.I.R. 1958, S.C.86
3. A.I.R. 1960, S.C.468. 6. A.I.R. 1973, S.C. 2701.
4. A.I.R. 1965, S.C.1303. 7, [Link] v Lucknow University,
5. (1971) 3 S.C.C. 972. A.I.R. 1976,S.C. 2428
 340

question of bias,^human probabilities and ordinary course of human

conduct have to be taken into consideration. In a group deliberation

and decision like that of a Selection Board, the members do not

function as computers. Each member of the group or board is bound

to influence the others, more so if the member concerned is a

person with special knowledge. His bias is likely to operate in a

subtle manner".

The Calcutta High Court applied the same test in [Link] v

2
D.H.A. Chakrabary . The Madhya Pradesh High Court emphasized this
3
test in Mohan Chand v Union of India and said that 'it is an off

shoot of the principle that justice should not merely be done but

must also be seem to be done. Naturally when a witness to an occur-

ance assumes the role of an enquiry officer, fairplay in action is

lacking in such a case. Principle of natural justice dictates that a

disciplinary enquiry must always be fair and the fairness should app­

ear from the record. In this case it is not safe to presume that
4
Enquiry Officer is unbiased".

The Supreme Court has again applied the reasonable apprehens-

5
ion test in Ashok Kumar Yadav v State of Haryana. The court observ­

ed that "It is one of the fundamental principles of our jurisprude­

nce that no man can be judge in his own cause, that if there is a

reasonable likelihood of bias, it is in accordance with natural

1. Ibid at 2432.
2. (1985) L.A.B.I.C. 1283 (Calcutta High Court)
3. (1986) L.A.B.I.C. 1245,M.P. High Court
4. Ibid
5. (1986) L.A.B.I.C. 1417, S.C
*
 341

justice and common sense that justices likely to be so biased should

be incapacitated from sitting. The question is not whether the judge

is actually biased or in fact decides partially/ but whether there

is a real likelihood of bias. What is objectionable in such a case

is not that the decision is actually tainted with bias but that 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. The basic principle underlying this rule is that justice

must not only be done but also appear to be done and this rule has

received wide recognition in several decisions of this court. It is

also important to note that this rule is not confined to cases where

judicial power stricto sensu is exercised. It is appropriately exte­

nded to all cases where an independent mind has to be applied to

arrive at a fair and just decision between the rival claims of part­

ies. Justice is not the functions of the courts alone. It is also

the duty of all those who are expected to decide fairly between
i
contending parties". The Supreme Court again applied the test of
2
reasonable apprehension of bias in [Link] v A.R. Antulary. The

court said that "Though we have no doubt in our mind that Mehta J.

acted fairly and impartially indisposing of the case in the manner

he did/ it cannot be said that there is no scope for apprehension

in the appellant's mind that his complaint may not receive adequate

and proper treatment at the hands [Link] same learned judge who has

already expressed himself one way. In these circumstances we would,

1. Ibid
2. A.I.R. 1986, S.C. 2045.
 342

following the well known dictum that justice should not only be

done but must also appear to be done, request the learned Chief

Justice of the High Court to nominate another learned Judge to take

up the matter from the stage at which Mehta J. made the impugned

order".

In Ranjit Thakur v Union of India^, Mr. Justice Venkatachallah

opined, "As to the tests of the likelihood of bias what is relevant

is the reasonableness of the party. The proper approach for the

Judge is not to look at his own mind and ask himself, however, hone­

stly, "am I biased?" but to look at the mind of the party before him:

Thus tested the conclusion becomes inescapable that, having regard to

the antecedent events the participation of respondent No. 4 in the

3
Court-Martial rendered the proceeding coram non judice". [Link]

Subyasachi Mukherji, of our Supreme Court (as he then was)observed

in Secretary to the Government Transport Department Madras v Munnu-

swamif that "Reasonable apprehension of bias in the mind of a reason­

able man can be ground for removal of the arbitrator, a predisposi­

tion to decide for against one party without proper regard to the

true merits of the dispute is bias. There must be reasonable appre­

hension of that predisposition. The reasonable apprehension [Link]

based on cogent materials. See the observations of Mustil and Boyd,

Commercial Arbitration, 1982, Edition, page 214, Halsury Laws of

England, Fourth Edition,Volume 2, para 551, page 282 describe that

the test for bias is whether reasonable intelligent man, fully

1. Ibid at 2081.
2. A.I.R. 1987, S.C. 2386.
3. Ibid at 2390-91
4. A.I.R. 1988, S.C. 2232.
 343

appraised of all the circumstances, would feel a serious apprehens­

ion of bias . The Andhra Pradesh High Court applied this test in

M.L.L. Kumar v [Link].T.C? The same judge, however had already

cautioned in International Air Port Authority of India v [Link]

(A.I.R. 1988,S.E.1099) that the principle should not be led to the

erroneousimpression that justice should appear to be done than it

should in fact be done. He observed that there must be a reasonable

apprehension of bias in the mind of the party, but"Apprehension must

be judged from a healthy, reasonable and average point of view and

not on mere apprehension of any whimsical person". The Jammu and

Kashmir High Court applied the reasonable apprehension test in

4 5
Parshotamlal v The State. In Kumkum Prakashan v State, the chief

Justice of Cujarat High Court Mr. Justice P.R. Goculakrishnan obser­

ved: "there may not be direct financial advantate for the above said

two members who find place in the Selection Committee. But the perso­

nal interest is made out from the discussion we have made above.

The decisions clearly lay down that it is not the personal

bias that counts but the possibility of such bias is enough to

strike down any selection. More than the financial interest the

personal interest of the party will have a greater force. If such

parties are present in the selection committee, there will be an

indirect influence upon the other members to frankly discuss the

superiority of other books in preference to the books written by

1. Ibid at 2234.
2. 1989, (159) F.L.R. 597.
3. Ibid at 1103.
4. A.I.R. 1990, J.K. 47 at 48.
5. A.I.R. 1990, Gujarat 12.

i
 344

Prof. Suresh Dalal and Shri Gijubhai Badjeka. If these two members

were not there, we do not know as to whether the committee would

have rejected certain books preferring the books written by Prof.

Suresh Dalal and Shri ^ijubhai Badjeka. The subtle way in which the

presence of interested person at least in some books influence the

mind of the other members cannot be ruled out on the facts and cir­

cumstances of the present case. That is why the learned single

Judge of this High Court, when the very same selection came up
1
before him on prior occasion, quashed the whole selection".

A perusal of various decisions of our Supreme Court and High

Courts make it very clear that our judiciary has adhered to the test

of reasonable apprehensions of likelihood of bias distinct from a

2
mere likelihood of bias. Seervai has concluded the following points

with regard to the test applied by our courts:

(1) the doctrine of bias applies not only to courts stricto

sensusbut to all bodies or authorities discharging judicial or

quasi-judicial functions;

(2) where pecuniary or proprietary bias is established the

bias disqualifies a person from acting as a judge and it is unnece­

ssary to inquire further whether the interest is such as in fact

to produce bias;

(3) in case of alleged bias other than proprietary or pecuni­

ary bias the question to ask is whether there is a real likelihood

of bias in the judge;

1. A
I.R
* 1990, Guj. 12 at 19.
2. [Link], Constitutional Law of India: A Critical Commentary,
vol. 2, 1984,p. 1444.
 345

(4) a person cannot combine the functions of a complainant,

or a witness, or a prosecutor with those of a judge, for in all

such cases there is a real likelihood of bias;

(5) where the body discharging a judicial or a quasi-judicial

function consists of more persons than one, the presence in the body

of a person who is disqualified by bias to be a judge, affects the

decision of the whole body, which will be set aside on the ground

of bias;

(6) the principle that no man shall be a judge in his own

cause applies to official or departmental bias but with the modifi­

cation required by the fact that the person who are to judge may be

committed to certain policies and are free, if not bound, to imple­

ment them;

It should be noted here that the Indian Judiciary is emphasi­

zing upon the reasonable apprehension of real likelihood of bias

and has been adopting a balanced view of the two tests. The real

likelihood of bias is not the only criteria. Hence the appearance

aspect of bias has been assimilated. However, the judges are immune

from the appearance test because their high office obliges them to

consider the matter in a detached manner, i'hus, in Mahesh Prasad v

Abdul Khair1 the Allahabad High Court held that the rule that a

person cannot be a judge in his own cause was not held to be appli­

cable to awrit petition filed against the order of the Chief Justice

1. A.I.R. 1971, All. 20§

 346

or any other judge of the High Court acting in an administrative

capacity. In Mary Teresa Dias v Hon'ble Acting Chief Justice and

others the Kerala High Court opined the same and invoked the doct­

rine of necessity which authorises a judge to act where no other

judge has jurisdiction even if he is disqualified otherwise. In

December 1986 the Rajasthan Vidhan Sabha was adjourned sine die

and a writ petition was filed in the Rajasthan High Court. The

petitioners prayed in the court that since one of the judges belo­

nged to the ruling party at a particular time, he should not sit in

the bench because he was biased against the opposition party. The

High Court, however, did not agree with this view and held that the

previous relationship of a judge does not disqualify him, when such

2
a judge is not biased one. The Supreme Court was also confronted
3
with this problem in Sheonandan Paswan v Bihar, where it was held

that the prosecution against the Chief Minister of Bihar had been

validly withdrawn. A review petition was filed, and one of the

ground was that Mr. Justice Bahrul Islam, who was one of the judges

of the Bench, had subsequently resigned his judgeship to conttest

election to the Assam Legislative Assembly on the ruling party's

ticket and had been elected and had been made a minister in the

Assam Cabinet. Since his nomination papers where filed 46 days before

he was due to retire, there was a reasonable apprehension of a real

likelihood of bias. The Supreme Court admitted the writ and a Bench

was constituted consisting of justice Tulzapurkar, Justice [Link]

1. A.I.R. 1985, Kerala. Srt.

2. The Times of India, Dec. 19,1986.
3. A.I.R. 1987, S.C. 877.
 347

and Justice A/[Link], to hear the matter. Mr. Justice A.P. Sen obser­

ved that. Applying the well settled principles governing a review

petition and giving my very anxious and careful consideration to

the facts and circumstances of this case, I have come to the concl­

usion that the review petition should be admitted and the appeal

should be reheard. I have deliberately refrained from stating my

reasons and the various grounds which have led me to this conclusion.

Any decision of the facts and circumstances which, to my mind,

constitutes errors apparent on the face of the record and my reasons

for the finding that these facts and circumstances constitute errors

apparent on the face of the record resulting in the success of the

review petition, may have the possibility of prejudicing the appeal

which as a result of my decision has to be reheard". It was conten­

ded that the decision of the original Bench to validate withdrawal

of the prosecution case against Dr. Jagannath Mishra was biased

because one of the judges was the member' of the ruling party, Dr.

Jagannath Mishra was the Chief Minister of that very party and sub­

sequently one of the judges became a minister in Assam Cabinet of

the same party. There was, therefore, a reasonable apprehension that

the presence of ’the very judge might have influenced the judgement

in favour of the ruling party.

The Supreme Court, however, rejected this argument and held

that, "Before leaving this case I may refer to another circumstance

which is rather disturbing. The Review Petition was filed before

1. A.I.R. 1983, S.c. 1125 at pp. 1127-28.

 348

this Court after the retirement of Bahrul Islam. Allegations of bias

were made against him apparently to get the petition admitted. But

later on they were with drawn before the Court hearing the Review

Petititon pronounced its order. But again in the course of the hear­

ing before this Bench an attempt was made to repeat the allegation

of bias against the learned judge. But on objection being taken by

the Court, it was promptly withdrawn. This conduct on the part of

the appellant deserves to be deprecated"2"

It is true that the apex court has to keep in mind the finality

of judgements and that is why it does not want to disturb the judge­

ment of its different Benches. It is equally important to note that

public confidence in the administration of adjudicating process is

of extreme importance. It may not be a disqualifying element to be

connected with various political parties for the judges. Zet it is

expected from them to be above politics, as they decline to enter­

tain political question and a reasonable apprehension in the mind

of the litigant should not be there and he should not go with the

idea that justice was denied to him because he was a candidate of

the rival party of the party of the judge. In the best tradition of

judicial adjudication, it is respectfully suggested that not only

judges should resign the membership of the party to which they belong

after becoming a judge but also they should not sit in the Bench in

which the political rivalary is in question. We do not argue that

after becoming a judge a man becomes a super human being. However,

1. A.I.R. 1987, S.C. 877 at 909

 349

one expects from a judge to be embodiment of the highest standard

of behaviour, morality and virtues. If a judge fails to keep these

high virtues, the whole society will [Link] a man becomes a

judge, he begins a new life. He has to forget his past, to control

his emotions, subjectivity, affection and sentiments. He forgets

every thing and remembers only one thing that he is a judge and he

must always remain a judge in the eyes of the litigants. The litiga­

nts must not feel that their cases were heard and decided not on

merits but on extraneous considerations. A judge should not be infl­

uenced by any motive and must perform his duty in detached and dis­

passionate manner. A.S. Mishra has pointed out the following situat­

ions in which the possibility of bias may arise in judges. They are:

A judge has to be very careful to avoid to be a prey of these cir­

cumstances .

i) pecuniary interest of the judge in the subject matter of

the case before him;

ii) his interest in one or the other the litigating parties,

or he himself being one of the parties;

iii) political pressure, or personal views about political

parties;

iv) desire on his part to gain favour respecting his future

prospects;

v) yielding to influence brought to bear upon his judicial

duty by private individuals;

vi) the human psychology of returning the good turn done to

him urior to appointment as judge or during the currency

of office;
 350

a misplaced craving to make improper use of the wide

powers vested in him; in the words of Lord Acton "power

corrupts";

ii) a desire to patronise any former colleague(s) at the bar;

ix) an inherent tendency to show favour to certain classes of

cases;

x) any other corrupt motive not covered by any of the above

1
items.

The Historical Perspective of Rule Against Bias:

The concept of natural justice has been in vogue from times

immemorial. Since the dawn of the civilisation the imparting of

impartial and unbiased justice has been the most important functions

of the rulers, administrators, kings and other persons of the high

authority. The impartiality of justice embraces in its self the idea

of the law of bias. In ancient India the pair of scales have been

the symbol of impartial and unbiased justice. This pair of scales

symbolises the balance of thought and action in weighing the causes

and giving the judgements.

1. Law of Bias and Malafides, 3rd Edition, 1986, p.47.

 351

The Indian Civilisation is the oldest civilisation of the world

Hindu law is the oldest pedegree of any known system of jurisprude­

nce. It would be therefore, better to start with the ancient Indian

perspective. In ancient India the impartial and unbiased administr­

ation of justice has been laid down as a secred duty of the king in

our classics. The adoption of an impartial and unbiased process has

been compared with the performance of the vedic sacrifices, and it

has been observed by Yajnavalkya that, "The impartial administration

of justice yields the same rewards as the solemn vedic sacrifices

do. He, therefore, advises the king to impart impartial and unbiased

judgement, surrounded by learned judges, thinking that by providing

the impartial judgement he is performing a vedic Yajna and that it

is his sacred duty to deliver the unbiased judgement".

: 11 11

I I II Vl1?l)

Manu says the same, and opines that if impartial and unbiased

judgement is not given, and those who deserve punishment are not

punished and those who do not deserve punishment are punished, the
2
king fails to perform his sacred duty and he goes to hell.
*
aROgq-FJ IT3TT I
X % — r-
spuit 11 11
( no vrfu c )
c.

1. Yajnavalkya Smriti, 1st 359-360.

2. 8/128
 352

Thus the Smritikars say that the king who protects his subje­

cts according to Shastras and gives punishment to those who deserve

it, that is, who gives an impartial judgement, he secures the spiri­

tual rewards of very solemn sacrifices?’

wiTd qfiqqqqq i

q^TqTfq^ zfTTTd qfqqTqqq I I O

Shukra says that the king must administer justice impartially

and if he fails to do the same and puts himself into pleasure, he

2
will certainly go to the hell.

qTqaqqffrrT qT qT^T q I

3
The Ramayan echoes the same.
" TJ. 1
qn^TfuT qT qT^T q ^rfq fqq fqq i
4qq"qqY qTq qfddY qTq : I I (qTe^tf^ qTo qo^TToM. $| £)

Agni Furan says that judicious and impartial administration

of justice confers piety, wealth, fame, popularity among the people,

4
respectability and above all a permanent abode in heaven.

^qT^q^TfH^q ^qf^?~q^: i

qqTAqV q^^Tq^q vrfvnq q <rr^qq 11

The administration of justice is the sacred duty of the king

and he should not entrust this task to those who surround him, he

must meet the parties along with his judges otherwise the men

1. Yajnvalkya, 1-335.
2. Shukranitisara, 4/5-8.
3. Uttarakand 53-6.
4. 258/83.
 353

surrounding him may prejudice his mind, he may not know the reality

and this may make him a biased person and ultimately he may go to

hell. Thus Kautilya advises the king to perform his duty and to

make himself accessible to litigants, because those who are near

him may create confusion as to what should be done and what should

not be done. This process may engender disaffection among the subj-
. 1
ects of the king and the king may easily become a prey to his toes.

■faqq-faq i i (rtTo^i se.)

To give impartial justice, to award just punishment, have been

the key functions of the king. Vashistha advised him to give up fear
2
and softness of heart in the administrations of justice.

idqnT fr?i: ^qrn, ^TTOrrrd fnf.'g; i,

^T’-Tq
(3-fW SE.U?)
Atri dmriti says that to deal impartiality with litigants is

the most important function of the king. It has used the word
3
apakshapatah. )

jpVTrq qxtg; W wi q I

BFT^TdTSWT ^TH I (6Tfro-?c)

4
The Visnudharmottar Puran also says the same thing.

qWT q I
t
vTT qnfq q q^-R I I

qfqqTqr wRrnT: ii

1. 1/19.
2. 19/1/2.
3 • Shloke 28.
4. 3/323,25,26.
 354

Thus it is clear that our shastras have laid down the principal

duty of the king to administer impartial justice. He is the fountain

head of justice of which Dharma is the expression, He is obliged to

sit and decide cases or to do so by his learned scholars but the

ultimate legal and moral responsibility lies on his head. The king

has been regarded as superior in the matter of decision making pro­

cess because he is strong and able to attend to them, other tribun-

1
als are inferior according to their relative strength or capacity.

JW fi? dFFTTH ‘fTfd 37 ^7

It must be remembered that Hindu Polity is all inclusive and

all contented. It embraces law which is nothing but a theory to

regulate the conducts of animate as well as inanimate objects. It

never took law separately, and law as Organism of Dharm, was known

to everybody. Dharma does not mean religion. Dharma for Hindus meant

spiritual as well as temporal achievements and relations. It is this

aspect that gives high importance to the administration of justice

by the king and his judges. Dharma is such omnipresence in the regu­

lation of conduct and administration of justice that the seat of

2
justice is called Dharmasthana. Thus Narad says that it is Dharmasan.

TO Wd f^Jd^qd ^dd I |

3
Manu is of the same view.

wddTd .‘TOf^d I I
777^7 11 (q» cp?)

1. Subodhini, quoted in The Hindu Judicial Systems of Justice,

[Link], at p. 97.
2. 1/28.
3. 8/23.
 355

1
Shukra also says the same.

qnTnHhfWTq I

u^rrnprr tt^t q^f^TfpiT 11 vi

2
He calls the seat of justice Dharmadhikarana also.

q^lTVTT^TpT I

pff^uf cref I | (^TTfd tf|«?)

The great Sanskrit poet and dramatics Kalidas calls it

3
Dharmasana.

SRf^Tq 3'3TWf d I

Bhavabhuti also uses the same word Dharmasana for the seat of
• 4- • 4
justice.

Wup-Wfa (^TivTxjfrd, ?iis)

Chanakya calls it Dharmastha and the man who presides over

5
it, is according to him, the Dharmadhyaksha'.

tjcFTuT° ’EETsT'T' >prT>WT fpTiqd II (^ToT^Tl fd ^o?)

The author of Rajtarangini uses the both words, Dharmasan am a and

6
Dharmasanas .
-fa^lT I UCTTlWH

sWWW i wpid ii (<o)

It is, clear, therefore, that the ancient Indian adjudicating

process emphasizes the element of Dharma to play the most important

role in making the judges impartial and unbiased. It is expected

17 41-44.
2. 41-42.
3. Abhijnan Shakuntalam, 6/7-8.
4
* Uttar Ram Charit - 117.
. >5 . Chanakya Niti - 102
6. 6128-6160.
 356

from them to be of open mind, to be free from hot temper, greed and

to be equal to both foes and friends. The ancient Indian procedural

law, which is embodiment of Dharma, has always held the unprejudiced

unbiased and impartial judges in the high esteem. The various Smrit-

ies have laid down the qualifications of judges, Jwhich are in itself

an expression of these essential qualities. Our law givers have, time

and again, insisted upon the appointment of such judges as are having

such qualifications. Thus in Balmiki Kamayana it has been laid down

that the judges and advisers of the king must be honest, clever, of

good origin and must always perform their duties without fear and

favour. They must not administer justice in a biased manner, and if

they do so, they must be ashamed of it. They must not lose their

temper, they must have there qualities and strength to pardon,they

must not use harsh languages and they must not show prejudice and
1
partiality because of their personal gain or loss.

: I I I I
wrrn: sfq^ : i
f^dWT’-r-Trfc-pjT: i ^qT’e^qpJ?>rh-fq^qqqqq : i i
^q^nyr qTjpT qfn>rqr: i qr^qi^n^fq 11

qTfq qj<~^i q i gfrqr qf^qn^qfqqqlr^qTfqqTq

\ \
qqYquTqwgT ° q^^yqqy^Tqq qqyqqq i qTpTqqq qT qT iq

qq: ^fqq i uvi i

(3T q’T vs, 4- ? v)

1. Balkandama-7/6-14.
 357

In Matsya Parana, it has been laid down that the judges must

be well versed in Dharmashastras, they must be of pure origin and

they must equally treat friends and foes]"

rq; »q fqq q i fq^q^:^qrq^q ii

f^qqw: qqqqq: i r^rrxqWnq: 11

.2
Thf
* same has been said in bharangadhara Paddhati.

t I rTT." q f4 q o I I

Wfoqqtq^rfq s?rro sm)

3
In Vyakaransidhant Laghumanjusha the judges have been called

1aapta Purusha1 and such person is called 1aapta purush1 who does

not believe in any enemity or friendship and decides the cases free

from these elements and does not lie in any circumstances.

arrtqrqq^q; ^q.^qT^Tq i arr^frHrqrqq^q fq^qflqTq

TTqTlwrrqfq HT^nrrfr q: q q^ q^wfa: i zn^yrrnfr q q

srrtq ?cqq£ i q^T q qwrfqqf^crSiqfd q^qqlq^Tq^Tqqq^^qfq^qqqcq

w
>
11 (qqT^Tlqsrr^qqq^TT,
O O
qo
**
e)

In Vishnu Smriti the king is advised to appoint such person

as judges as are free from self interest, hot temper, fear, greed
4
and treat equally the enemy and friends.

vnrm'TTnq; ^rT:, fr?r fqq q q qqr: i ^q^Tqqq^rqTfqfq :

^TqPwq^qr^Tqf: i (Iq^rreqfq ?m)

Yajnavalkya emphasizes that the king must enter in the hall

of justice accompanied by learned brahmans and ministers proficient

1. Chapter 215/24-25.
2. 1343.
3. p. 9.
4. 3/74.
 358

in statecraft, such persons must be free from hot temper, and greed

and they must decide the cases according to the law laid down by

Dharmashas tras

q^fSTfaq; jTWT: I 3d0° I HI I

r*. > <-) ' Z
qrfdr; d^qrfqq: i ftqrfqq q d d^r: ii?ii
(dTddr^vrfd ? arsqTd)

2
Manu says the same,

T^vP\d ^qTf^: I I HI
ddTdYd:fT?ldT dTfq qTfnTd^TfsTuTq I 'fd^d^TTdpjT : q^r^^fVT^Tl^nTTq

(qq^q-fd —) 1 hh
Thus, the emphasis is on the impartiality of the judges. The judges

have been held to be the embodiment of the virtues and high standar­

ds of life. If one deviates from these values, one loses his reputa­

tion, is bound to lead a dissoluted life and hence certainly is to

go to hell. As has been already pointed out, Gita has reminded us

of this fact, time and again, that it is better to die than have a
3
disreputed life in the society.

skiW qTfqqqrfq prjeqqTd i

d'cdTfqq^q -dT || ’ftcTT ?|

The Panchtantra says that if a judge decides a case, being

influenced by the extreneous considerations, he ceases to be a judge

and goes to hell. It says that if a judge decides a case simply to

gain favour from the persons who are in power, or to gain some

1. 2/1-2.
2. 8/1-2.
3. 2/34.
 359

honour and prestige, or if the judgement is given out of enemity

and anger, or out of greed; and taking into account all these consi­

derations the justice is not administered impartially and in an

unbiased manner, the judge is bound to go to hell.

3T Hp
* II SHo'd

Narad has again laid down that the judges must decide the

cases honestly and in an unbiased manner. They must be well versed

in -Dharmashastras, they must speak truth, they must treat friends

and foes equally and they must belong to a high [Link] must be

born in good family. He advises the king to appoint the persons of

such qualities as his judges so that the justice is really done to

litigants and they must be satisfied that justice has been done to
., 2
them.

He again advises the king to appoint such judges as are proficient

in the texton the eighteen titles of law, their eight thousands sub­

heads, inlogic and should be master of the vedas and smrities. Just

as a physician takes out from the body an iron dart by the employ­

ment of surgical instruments, so a judge should extricate from a

3
law suit the deceit underlying it.

1. 3/104.
2. Vyavahardarshanvidhi, 69.
3. 3/16.
 360

■L'he other Smritikars insist upon the fact that the judges must

be born of a good family, must be impartial, highly religious and

free from hot temper, Manu, Yajnvalkya, Katayan, Gautam, Shukra,

Brihaspati, Narad, and other sutrakars have this element very much

in common and have laid down that the judges must not only be impart­

ial and unbiased but they must be highly religious and be afraid of

the next world. It has been clearly laid down that if the judges

give judgement favouring someone or out of hatred and enemity, or

they favour friends and dis-favour enemies, or they deliver judge­

ments to get some favour, one quarter or the sin falls on the judges

and the King. Thus, Manu says that when the just decision is given,

the King and his judges become free from sin of doing injustice, and

the sin reaches the guilty only. On the other hand when an unjust

decision is given, a quarter of the sin falls on the litigant, one

quarter is on the witnesses, and one quarter is on the judges and

the King.
PT^T FTC I TTF : I I I I

q q'TTP^: I I'I II

- c>
Vashistha says that judges should be impartial, should know

dharmshastras, should speak truth and should be impartial to friend

anf foe?

^qT j^qdTBqT I -di I 3

qqj (’faq'THvK)

( )

1. 8/18-19.
2. 16/3-5.
 361

The great poet Shudrak has laid down the following qualificat­

ions of the judges in his famous drama Mricchakatikam. He has empha­

sized that the best judge must be well versed in bharmashastras and

must be free from anger and hot temper. He must equallytreat friends

and foes, he must be ready to help poor and weaker people who have

been brought to the law courts by conspiracies. He must be highly

religious and must be afraid of sins and untruthfulness. He must be

free from greed, must listen to the parties attentively and must be
1
ready to do away the anger of the king by his virtuous deeds.

q qT'Trf^TdT tttA tt^-

( e-'i) ii
Similarly Katyan says that the judges must be well versed in

bharmashastra and Arthashastra, they must belong to high descent,

they must have original thinking and must be imparital to friends

^4= 2
and foes.

• ' ♦
(qTqqq^qVW ^oqTqqqT^qqqqqqq |

The ancient Indian concept of justice is an embodiment of

bharma which is all pervasive and which has been regulating the

conduct of the whole people from King to the ordinary person. Impa­

rtiality and unbiased conduct of the judges has been the most cheri­

shed values of the Hindu polity. It has been laid down in various

Smirities that judges are the most ideal and respected persons of

1. 9/5.
2. Quoted in Mitakshara on yajnavalkya, 2/2.
 362

the society. When they decide a case or take part in adjudicating

process, some heavenly and godly elements pierce into them, they

become virtuous and men of integrated personalities, and when they

become interested parties and begin to give partial and biased judg­

ments, their respectability and integrity begin to be doubted. A

disintegration of the personality begins to take place and in soci­

ety his conducts are debated and condemned. After his death, accor­

ding to our dhastras, he will have to go to. ell but in the society

hehas to lead a dissoluted life and his reputation and image become

tarnished. Everybody knows the story of Yudhister in Mahabharat. He

was a man of high integrity, he always used to speak truth and that

is why he was known as Dharmaraj and his cariot used to fly two feet

above the earth. When he became a judge in his own cause having

desire to win the war, he lied before his Guru, his chariot fell on

earth, that is to say, his reputation suffered, his personal a ty

became disintegrated, he began to lead a disreputed life and the

whole towering personality of this great king fell down. He had to

go to hell, of course for a shortwhile.

toreT pi: : i e s >

(Ho’-TTo puTdq' 3b )

II rT®'TToyTTrTcl4
* SpaiPI I

c^IT a-qfftrT: 3IX i i ^

i i
^IpFVM I qitad?lT qp
*
lV *lT
d I I I

^TqfT *
d
lT ’TdT I STT^ I I ^| |

(1olTFo 3 Gp^TRr)

1. Mahabharat, Dronaparva,54-59,Hwargarohan Parva,15-17.

 363

Thus even from our ancient shastras, it is clear, that the

judges are required to be impartial and unbiased. They are expected

to be unbiased, highly religious and well versed in adjudicating

process. Those who are atheists and devoid of the study of Shastras,

those who are ignorant of the usages of the country, those who are

greedy and hot tempered, are not to be appointed as judges. Special

care has been taken to keep the judiciary free from corruption and

partiality. Heavy penality has been prescribed for them if they

happen to be corrupt and give judgement being influenced by other

consideration than the judicial one. Thus Yogishwar Yajnavalkya

says that if the judges give judgement which is opposed to Smriti

and. usage through friendship, greed or fear, the judges are liable

to be fined twice as much as the fine to be paid by the defeated

1
party.

TPTT^T^T^ : I

T-W I I ?l «

Kautalya prescribes fines and even corporal punishment for

judges who give judgements being influenced by bribes, who give

2
wrong judgements and cause loss or sentence to corporal punishment#

pjnq ^q fsrnfd, wi
fT=rr^fr^--reyjf i ^rrft^ w i

f^Tnf TT I 4 TT HT^Fq^q d^’Trrf

i 2/4.
- 2 4/9/2
 364

The Vishnu Smriti prescribes banishment and forfiture of all

1
properties of the judges who give unjust decision or take bribes.

^Tf^rnTT q3rqrq ^7: i qeKrqrqqrfqqT q^THT^q

q^q^’ I q^T: 3^q q^piTTI q q’Jc^T^Jq^f^,

q^rrqfq qqf^qTq^Tq: ^uf: i q^PTqTq^iq qrfqqT fqqfqT^ I

w q^qq-fq; r epqTqqyfqq: q^TVF^r c^r ^rfqq: I

fq^qqqq^^r^q fqqfm i
T4q
?Tq fqqnfafFq qqfqqyq ^vn^T * i qq^T^q qlfqqr q^q
fYqrq ^qTq^q ?fq qTjq^qqWL. i

q^ qq 3Tf§qTTOT^q3^TT7 I ?fd F?

Thus, Vishnu Smriti has quoted Brihaspati, Yajnvalkya and katayan

to prove that partial and biased judges are no longer to be toler­

ated in the society and that they are to be banished from the

country after their whole property is confiscated by the King.

Katayan is of the view that if the judges give wrong decisions, and

are not impartial and unbiased and their such decisions cause losses

to the losing party, the loss must be made good by the judges to
2
the defeated party.

\ ' • X
qtq qq^TTfq^TV qq q^q q^T I

1. 5/180-181.
2. Quoted by Smritichandrika, 2 p.23.
 365

The judges who take bribes and give judgement in a biased and

partial manner are to be fined One Thousand panas and they are to be

removed from the office^

Wcq: qT q i

qcf qq’fn: sq-fa-pfa d || Wl W.I

SJdTqiq?qT W q qqq qTqqf^T dTq I

TTTtWKtt q^qT^rfq Tqvq^Tfq^TfpiT 11

'wfqvqr (T^ttth Wifl 11 kiuilo

The judges who gi^e decisions after taking bribes commit the

sin and the king there by incurs infamy and the sin of doing injust-
2
ice.
KiyTqqT^T^q; ^q-^T^qV' ■fqqqTqTqTqtn'^r?qi1' q

qqT^qTriTq qT^T^qf’^r 11

(q^i^^mrqfqaici q0

Thus, the Ancient Indian judicial system gives high importance

to the pure and unbiased judgements. Judges are expected to be above

partison and to discard the elements of greed, fear and favour. If

they give decision by reason of partiality, covetousness or fear

they give the wrong decision and our texts provide temporal punish­

ment and their banishment is ordered from the country. Brihashpati

says that the judges,who favour the party which is unjust under the

pressure of bribes and who cause a breach of trust, they must be

3
vanished from the country.

<x\ X
fqqirqT.’ vq q 11

( <pvrfq; )

1. Shukra, 4/5, 277 and 41 and 796.

2. Dash Kumar Chart! , 8 p. 131.
3. Quoted in Vyavaharanirnaya of Varada Raja at p. 21.
 366

In order to prevent judges from becoming a party to the disp­

ute, they have been strictly prohibited to have conversation with

the party in a lonely place, as it will create a reasonable suspici

on in the minds of litigants that the judges, who have talked with

one of the party in secret place, are biased and not impartial.

Thus Shukra says that out of five reasons of partiality, one of

them, is holding a secret conversations with one of the parties?"

Katayan is of the view that the judges, who hold conversations

with one of the parties in a secret way, are to be punished because

it will make them biased judges. The holding of secret talk may

engender the feeling of affection, greed or any other relations and

2
this will certainly make a judge biased.

0»

It is, clear, therefore, that the judges must not only be

ideal, unbiased, impartial, but they must appear to be so in the

eyes of the public so that their integrity is not doubted and the

confidence in the judicial process may not diminish. A man may be

honest, unbiased, impartial but he may easily become prey of arrog­

ance, arbitrariness. He may be misled by his men who are surround­

ing him. That is why, it has been clearly laid down that justice

1. Shukra, 4/5-7.
2. Quoted by aparaka, p. 604, 603 and Vyavahar Nirnaya of Varada
at p. 21.
 367

should never be administered by a single individual by himself. Just

ice S. Varadachari writes that, '^o decision shall be given by a

' 1
person singly is a formula found frequently repeated in the texts.

( d V'FT'FT 3d"fd )

Shukra says that the King must decide the cases with the help of

such judges, iurohits and Brahmins as are well versed in Jharamsha-

stra, free from anger and greed, equally treat friends and foes,

speak with sweet voice. Taking such people with him the King must
2
entered the hall where the seat of justice is located.

fq^qrdd qTf’fer: i
IdtRrd ^fd^d d’TTd |

d^lTTdTddT^T ^Td dT'-T ‘fdd’f^d: I

d^Tl^dT
* STTTdq d ^dUTdlT^d t I I
dTTf^ddfd ^d^T^Tdd^TTd I Vl’ilU
Manu also says the same. "

■^d^TjTd fbT 'TTl^d:

TddTd: jfd^icVdTd II UH

Shukra is of the view that King should not decide the case by

himself but he must follow the advice of his judges and they all
4
must not hold secret talks with one of the parties.
\\ ' q
dd ^TdffuT dTfddT ^PTdT^: I

d dq: 3^: ^dddd 1

1. The Hindu Judicial System, p.64.

2. 4/5,43 and 4/5/5.
3. 8/1.
4. 4/5,6-7.
 368

He explains that there are five factors which may make a judge biased

and a judge must be very careful to avoid them. They are: passion,

cupidity, fear, malice and secret information from the parties or

secret delaings or parleys with the parties.

*\'j
q qq T |

qPT qqq qTfqqrsq t^: qfq 11 villas

Varadraja is of the view that it is better to have the deci­

sion by many persons than by one person. The decision should be given

by the king, who is surrounded and advised by such judges as are well

versed in bharm Shastras, are free from anger, greed, hot temper and

are equal in treatment with friends and foes. The king must deliver
2
the judgement with the advice of such person.

qqMfCTTfq-fq.'qqTf^^T, qw qfiqqj qrqT

^Tfgqrqrr qrfsq i1
o
Shri [Link] writes that, "The Satapatha Brahaman starts

the theory that the king should not merely protect the law but himself

administer it in person,or by his officers. The old theory has been

3
that the law of the community was administered by the community". Mr.

Justice S. Varadachari opines that, "Some of the early texts seem to

treat the king's judicial work as standing almost on the same footing

as his other public work and therefore, to be discharged by him in

the Sabha where he was surrounded by Ministers, Purohit, Sabhyas,

etc. Thus Vasishtha says; g-pj

1. 4/5/7.
2. Vyavaharanirnaya, 1942, p.21.
3. Hindu Polity.
 369

Let the king or his Ministers (or the king taking Counsel with Brah­

mins) transact the business on the Bench, (Buhler). In the Mahabharat

Banda is described as 'having many eyes' (

T? ' Nilakanta

explains this as follows: "That in which are employed numerous instr­

uments (eyes)for the perception of the truth; viz., King, Ministers,

Purohit and Assembly'^

It has been emphasized time and again that a single individual

may be clever, honest but he should not decide the case singly beca­

use a multitude of men are less liable to corruption than a single

individual.

The judges have been termed as Pradvivaka in Ancient Indian

Literature. The word is a combination of Prad and Vivaka. The word

Prad means the one who puts question to the litigant and Vivaka means

one who analyses the truth. The Shabda Kalpadruma defines Pradvivaka

as a judge who puts the question and speaks after analysing the truth.

He is also known as Vyahardrashta.2

frfwr
* : i ■ i

The Amar [Link] defines it as Akshadarshaksa?

Again Shabda Kalpadrum analyses it as meaning a judge who adju­

dicates between the parties after putting the question, weighing the

Pros and Cons of the rival claims of the parties and then consult

The Hindu .Judicial System, p. 65.

2. Volume 3, 1961, p. 309.
3. 2/8/5,
 370

. 1
with other members of the bench.

TO^Tqrfq- 'TT^TT’T q^'^vT

?W-T: I q^fd qTfq ^T'fef^fHTTrT I I

^fd m ’JE^TOT IqqWqTq W"

:
*
■facrr i t^t q^rr
4
* 3^?^.' i ■fqq'n^f^qwj

3Tg Wtt^ vffi: : 11

Shukra gives the same meaning to the word Pradvivaka.

qrfqq'r q^fq ^tstt ’fa'fqqvqq: i

■faqr^fq q'wrf q^fS^WrFfq "fqqf^-qT 11 mi *U

Varadaraja says the same and quotes Harit in support of his

3
mean mg.

q?rr 5i ?q f’-nq-^cTTqT q^r q^fqrfq: I

■o x v>

HTSwSJHfn:
' c-» U H

Vachaspatyam, a comprehensive Sanskrit dictionary defines the

term as meaning of a judge who first puts question then thinks over

the contentions of the party and comes to a honest conclusion and

then speaks. It has quoted Vir Mitrodaya, Gautam, Vyas, Narad Harit
4
and other Smritikars in support of its meaning.

srf?T gcqWTi rpi, farrwr fqqqqfq

q'frbTT i ■sqq^Ti fqqTpT qq q q^qrurr-

•fq£ i q^T , IqTK q 1 f’jqqf

yrqqqfq 'jT^'fqqT^qq: w: 11 wfq Wrqrg q^r
------- ; " “— 1 fqqr^fqqqT^qTf ; vrq;
1. Supra Note 1. ' <•
2. 4/5/63.
3. Vyavaharanirnaya,1942,p.7.
4. Volume VI, 1970, p.4508-9.
 371

Justice S. Vardachari of the Federal Court has written that,

"The principal Jharmasutras contain only a few provisions which may

be said to relate to judicial organisation or to adjective law. The

earliest of them (Gautama), whose extent text is considered to be

reasonably authentic and reliable, lays down the duty of the King to

administer justice, punish the guilty and protect his subjects. There

are a few simple directions and a reference to justice being admini-

1
stered according to the Vedas, Upavedas, Dharmasastras and Puranas.

The portion grouped as chapter XIII begins with the declaration that

in disputed cases, the truth has to be ascertained by means of

witnesses. Then follows a few provisions about persons who can be

witnesses and their obligation to speak the truth and some directio­

ns as to their examination. One significant passage says that witne­

sses may be examined by the King or by a Brahmin learned in the

Sastras.

*X \
TW cjtsWtw ^t^tt ctt sp: i

The word Pradvivaka not only suggests that, "The Judges must

be men of learning, clever in reasoning and careful in fulfilling

their duties, but it also suggests the absence of bias, prejudice

and predisposition of mind with regard to the issues in question.

The other word suggesting the impartiality, honesty, integri­

ty and capacity of impartial investigation is Prashna Vivaka.

1. S.B.E. II, [Link].

2. Chapter XIII,26.
 372

Vachaspatyam defines it as a judge who adjudicates and speaks after

going through thoroughly the issues before him.

sqqqfd ( Ho )
Yajurveda says, that,"That man is known as Prashna Vivaka who
2
answers the questions after thinking it in a dispassionate way.

( qTo so [ ?0
The Taitraya Bhahmana says the same and Sayan commenting upon

this says that, "That man is a Prashna vivaka who, while adjudicat­

ing, gives a serious thought over the matter of dispute and after

thinking it in various aspects gives his judgement and speaks the

truth.

'sqqrqT qq^Tq

Thus the Ancient Indian concept of bias is the first lesson

the evolutionary history of the adjudicating process. Since Indian

civilisation is oldest civilisation of the world and Balmika Ramayan

is the first epic of the world literature the qualification laid

down by Ramayan and other Indian classical texts have become the

inspiration for the other civilisation to have unbiased and impart­

ial judges. The administration of justice has been held in High

esteem in our society, the judges have been compared with Gods and

the seat of justice has been compared with the sacred place where

the Yagya is performed for gaining spiritual and temporal rewards.

1. At p. 4495.
2. Vaj Paney Banhita, 30/10.
3. 3/4/6/1.
 373

The judges are required to be well versed in Dharma Shastras

and other classical texts. They must be honest, impartial# unbiased

and free from hot temper, greed malice, cupidity, passion, fear and

they must belong to high descent and must not hold talks in secret

places with one of the parties as it will create a reasonable appre­

hension in the minds of litigants about the impartiality of the

judges. The ancient adjudicating process not only emphasises that

the judges must be unbiased but it also prescribes punishment to

such judges as are biased and partial because of the passion of

malice, fear or favour. Even the punishment is prescribed if they

take bribes and give an unjust decision. It is suggested here that

if these guidelines are implemented to day and the adjudicating

process is seen in the context of Heaven and hell, sin and virtues

and society begins to condemn such person as are biased, the whole

problem of the present judiciary in our country will whither ■■;away.

 374

ORIGIN AT COMMON LAW

Just like Ancient Indian tradition, in the early stages the

law in England was part of the religious attitude which regulated

the life and conduct of the citizens of the country. That a man can­

not be a judge in a cause wherein he is interested, has been a funda­

mental rule in the administration of justice in England. We find a

very interesting dialogue in the Doctor and Student wherein the

Doctor says, "I put the case that he that owneth the beats offer

sufficient amends and the other will not take it, but keepeththe

beasts still in pound may not the owner take them Out? Student, no,

for he may not be his own judge, and if he do, an action lieth
against him for breaking of the pounds; but he must sue a replevin'.'^

The early background shows that the Church Courts in England were

very keen to apply the provisions for recusation of the suspectus

2
zudex. Taking into account all these points Brecton wrote that a

judge was not to hear a case if he was suspected of partiality

because of consanguinity affinity, friendship or enemity with a

status n
party or because of his subordinate;/towards a party or because he
3
was or had been a party's advocate. Thus friendship, emenity,

kinship, cupidity, passion, greed and favour or fear, are the grou­

nds on which the judges were asked to recuse from the adjudicating

process. These grounds were very dear to the Canonists and if the

judges of the Church courts were found to be commiting wrong, they

1. dialogue II, [Link].

2. Maitland, Roman-Canon Law in the Church of England,p.114.
3. De Legibus, F.412.
 375

themselves repented and thought that such act was not in keeping with

their tradition, thus in Year Book, it has been reported that a Pope

once condemned himself to be burned to death for his sins. There is

a Catena of cases which suggests that judges were treated to be pure

and unbiased, and a man should not be a judge in a matter in which

he is interested; has been strictly adhered to. One or two illustr­

ations will make the point clear. In 1371 Henry Persey was co-plaint­

iff in an assize of novel disseisin during the circuit, one of the

judges died and the plaintiff was himself appointed judge upon the

death of that justice. It was argued that he could not try the pend­

ing cases in which he was himself a plaintiff,a party to the suit.

It was held that Persy was clearly disqualified from sitting on his
1 2
own assize, because he could not judge his own cause. Again in 1494

a writ of trespass was brought against an ecclesiastical judge, the

commissary of a bishop. The defendant produced evidence that the

plaintiff had been excommunicated and was thus incompetent to sue.

The plaintiff responded by averring that he had been excommunicated

by a sentence imposed on him by the defendant, and the court had no

difficulty in putting the excommunication out of the way, because

3
the commissary could not, they said, be judge in his own cause'.'

These maxims of Canon Law influenced to a great extent the common

law and if the common law judges did not imitate it consciously,

they applied these maxims for a just and reasonable solution of the

problem of bias.

1. Liber Assisarum, pl. 3p.297,

2. Y.B. Hil, 9 Hen. 7f, 21, Pl.18.
 376

Prof. Je Smith observes that, "They bear a close resemblance

to the grounds for disqualification of judges for likelihood of bias

in modern English law. It might well be supposed, therefore, that

they were imported into the common law in its early formative period

by Bracton himself or by his contemporaries or predecessors. Indire­

ct support for an opinion that they were received into the common

law might be derived from the fact that the grounds of exception

for interest and bias to the competency of witnesses in 'courts

Christian' had been applied from the earliest times to the challenge

of jurors of the grand assize and the possessory assizes. Moreover,

atleast as early as the fourteenth century, common law judges were

held to be incompetent to hear cases in which they were themselves

parties. Yet there seems to be no evidence that Bracton's broad

statemtnt of canon law doctrine as common law was accepted and acted

upon by his successors. On the contrary, it was laid down that favour

was not to be presumed in a judge. The principle that a judge was

disqualified from adjudicating, whenever there was a real likelihood

that he might be biased was not unequivocally established until the

1860. Bracton is not cited in any of the leading English cases on

the matter. One must conclud’e that the balance of probability is

tilted against the view that the canon law rules were ever directly

incorporated in the common law. The common law judges came to adopt

principles substantially the same as those of the canon lawyers,not

by way of conscious imitation, but by moving independently towards

a just and reasonably solution"

1. Judicial Review of Administrative Action, IV ^d.1980,p.248-249

 377

The canon judges, no doubt, insisted that a man should not

be a judge in his own cause, yet long after the middle ages the

personal relations, to a large extent, were tolerated at common law

and easily the judges were not attacked on the ground of such relat­

ions. Thus it was held in Brookes v Earl of Rivers12 that, "Favour

shall not be presumed in a judge'.' "Bacon in his Maxims of the Law

(Regula XVII) wrote that the law would not allow any error to be

assigned which impeached judges". In their trust and office and in

willful abuse of the same; but only in ignorance, and mistaking

either of the law or of the case and matter in fact". This was,

Bacon's view, to support "the certainty of judgements and the credit

and authority of judges'.' But from the cases discussed, it is clear,

that Bacon did not have the case of the interested judge in mind.

That kindred with a litigant was not considered a disabling circum­

stance is clear. Roper relates in his memoir of his father-in-law,

Sir Thomas More, that More as Chancellor once heard a case in which

another son-in-law was party, and decreed against him. Roper mentio­

ns the episode as illustrating More's scrupulous sense of judicial

integrity and impartiality. Professor R.W. Chambers in his biography

of More traced the case in the P.R.O. where it is Early Chancery

Proceedings. Bundle 643 No. 32: Giles Heron v Nicholas Millisanre'.1

2

The point that we stress here is, that the early common law,

though influenced by Canonists made it a principle not to tolerate

the biased judges; did not prescribe compulsory disqualification of

1. (1668) Hardres 503.

2. Quoted in D.E.C. Yale’s Judex in Propria Causa: An Historical
Excursus. 1974, Cambridge Law Journal, 33(A) p.82.
 378

the judges. The early judges might recused themselves for good cause

but to challenge them or to suppose the possibilities of bias or

favour in judges was not a practice in the early common law. Thus

the bold assertion by Chief Justice Edward Coke that the judges and

justices, unlike jurors could not be challenged was the expression

of that very sentiment. Blackstone wrote that “By the Law of England

also, in the times of Bracton and Fleta, a judge might be recused

for good cause, but now the law is otherwise and it is held that

judges and justices cannot be challenged. For the law will not supp­

ose the possibility of bias or favour in a judge who is already

sw^rn to administer impartial justice, and whose authority greatly

2
depends upon that prusumption and idea'.' Chief Justice Holt remarked
3
in Groenvelt v Bur Well and Al "that a judge is not answer able, eith­

er to the king or to party for the mistakes or error of his judgment

in a matter of his jurisdiction, it would expose the justice of the

nation, and no one would execute the office upon peril of being

arraigned by action or indictment for every judgement he prounces".

He has cited a case in the 27 Ass.19, a judge of Oyer and Teeminer

caused his finding to be entered as a felony though it was a case

of trespass, could not be punished by indictment, because he was a

judge of record.

In 1699 Chief Justice Holt remarked in the Annymous, that the

Mayor of Hereford was the soul judge of the court and hence the

Doctrine of the necessity empowered to sit in acase in which he

1. Colitt. 294.
2. Commentry, 3rd.p.361.
3. 1 Salkeld 396, 91 E.R. 343.
 379

himself was lessor. The learned Chief Justice remarked that,"The

Mayor was laid by the heels for sitting in judgement in cause where

he himself was lessor of the plaintiff in ejectment. It may be an

error of judgement, but a judge is not punishable".

The early common law, therefore, recognised the importance of

inpartiality but the judges were not challenged for bias and partial­

ity as frequently as they were to be challenged at the later stage

of the development of the common law. The early American thinking

was of the same nature where it was opined that it was highly impro­

per to challenge the integrity of judges. Thus in Walgrove vWalgr-

ove, it was observed that, "It undertook to convey and insinuation

that the complainant could not have a fair trial before the circuit
2
judge which was not to be listened to for one moment".

We do not maintain that the early common law did not give

importance to the Canonist theory of rule against bias. On the contr­

ary we find many cases which recognised the judgement of an interest­

ed judge as biased judgement and it was admitted to be, "The common

course through the land'.12

3

□
In 1400 in a case the Mayor and Bailiffs of Lincoln had actu­

ally obtained conusance of a plea in which one of the bailiffs was

plaintiff in their court at Lincoln. The Defendant then obtained a

Chancery writ removing the plea into the common [Link] Chief

Justice remarked, "They are judges and justices of record by charter

1. Annonymous, 1 Salkeld, 91 E.R. 343 and 1 Salkeld 201, 91 E.R.180.

2. 3 E.D.W. Ch. 227.
3. Y.B. Mich. 2 Hen. 4f.4b. pl.14.
 380

of our Lord the king as we are, and it will be a bad example to make

a judge of record to stay proceedings on a general allegation quia

favet till default is found in him. And if default can be found in

him, the party may have a writ of error because they are judges of

record, and if the party take exception in the court of Lincoln that

the plaintiff is both judge and party, is reasonable that his except

ion should be allowed and that the plaintiff stay his action till he

is out of office It is the folly of the plaintiff to sue his

1 2
action before himself when he himself is judge". Again in 1430 in

a case from Oxford there was a local custom requiring house holder

to repair the pavement frontage between houses in the High Street

and the street gutter. If they failed to repair, the chancellor of

the University might have the work done and recover the cost by

distress. In this case he had done so, levied a distress. He was

sued in the common pleas for trespass to goods so impounded.

Martin J. was of the view that there was a point of propria

causa and the University’s charter did not have the words licet

fuerit pars, hence the conusance could not be granted in this case

in the absence of such words. He further said that even if the words

had been present, the same result must follow lanless the charter

provided for an independent judge, for where the grantee was party,
3
"he cannot be an impartial judge as regards himself". Stating the

early position D.E.C. Yale writes, "They were thoroughly alive to

the idea that justice required that a party litigant should not

1. Ibid .
2. Y.B. Hil. 8 Hen.6f. 18b. pl.6.
3. Ibid.
 381

render judgement in his own case. An aggrieved party might have

process offending against the principle quashed or abated at the

outset; he need not wait, to set aside obnoxious proceedings by cumbe­

rsome process in Error. But beyond this precise objection, they were

unwilling to move. One could challenge the biased juror; but judges

were not challengeable on grounds of bias. And even the precise

objection had to be reconciled practically with a judicial pattern

checkered with private franchise. The principle itself would -be larg­

ely nugatory unless an' acceptable system of judicial deputation was

strictly required. And this requirement was the theme of legal

doctrine in the Year Book cases. The critical point was the grant to

a man to hold his court notwithstanding his own status as litigant

(licet fuerit pars). The solution reached was that such grants were

nullities unless providing further for judicial deputation. In Coke's

hands this could be raised as an issue of constitutional law at the

highest level, but its origins appear at a humbler level as a pract­

ical reconciliation of an idea of justice with the delegation of

the administration of justice into numerous private hands, or as

one might better say, the entrusting of jurisdiction to the local

government of the Middle Ages"]’

John P. Frank is of the view that, "In short, English Common

Law Practice at the time of the establishment of the American Court

System was simple in the extreme. Judges disqualified for financial

interest. No other disqualifications were permitted and bias, to day

1. Judex in propria causa. An Historical Excursus,

33 C.L.J. 80 at 96.
 382

the most controversial ground for disqualification/ was rejected

1 2
entirely". It was only in 1866 in R v Rand , which is regarded as

locus classicus , that Blackborn J. remarked that, "Whenever there

is a real likelihood that a judge would, from kindred or any other

cause, have a bias in favour of one of the parties, it would be very

4
wrong in him to act". In fact the learned judge quoted there R v
5
bean of Rochester in which it had been held that the circumstances

from which a suspicion of favour might arise, did not produce the

same effect as a pecuniary interest and said that, "And as the deci­

sion in that case was on demurrer to a plea, and might have been
taken into error, the authority is one on which we ought to act"^

1. bisqualification of Judges, 56, The Yale Law Journal (1947)

at 611-12.
2. (1866) L.R. 1 Q.B. 230.
3. de Smith, Judicial Review of Administrative Action, 4tb Edn.
1980, p. 249.
4. Ibid at 233.
5. 17, Q.B. 1, 20 L.J., Q.B. 467.
6. Supra Note 4.
 383

THE POSITION OF THE KING

i'hough, the king is said to be the fountain head of the justice,

like ancient Indian Concept, the king was not to be treated in such

a position as would make him arbitrary, partial and capricious. In

the reign of James I it was solemnly adjudged that the king cannot

take any cause, out of any of his courts, and give judgement upon it

himself; but it must be determined and adjudged in some courts of

justice according to the law and custom of England. In Prolvibition

del Roy , which has been cited in Bridgeman v Holt , the judges,

"Informed the king that no king, after the conquest, assumed to

himself to give any judgement in any case what soever which concer­

ned the administration of justice within this realm, but these were
3
solely determined in the court of justice". It was argued in Corham
v Bp of Exter^ that her majesty had 'never power nor authority by

law to refer the petition to judicial committee but Chief Justice

5
Lord Combell rejected this argument'. It is clear, therefore, that

though the supporter of the divine right theory believed that the

law resides ultimately in the breast of the king, yet as Prof. G.H.

Sabine points out, "The duty of passive obedience did not mean that

the king was wholly irresponsible and could do whatever he chose. It

was usually argued that the king, being more highly placed than other

man, was responsible in a higher degree. The law of God and the law

1. 12 Rep. 63, 77 E.R. 1342-43.

2. (1693) Shower P.C. Ill at 126, 1 E.R. 76.
3. Supra Note I at 1343.
4. 15 Q.B. 52.
5. Ibid at 74, 117 E.R. 385.
 384

of nature were assumed, as they always had been, to be binding on

him, and his general duty to respect the law of the land was commonly
1
asserted.

It was argued that the king must not be the sole dispenser of

justice, and if he made a man a judge in his own cause that would

be against the law of nature and the law of God which were binding

on him. 12
hus,
3 in the Exchequer chamber debate in 1481 the Counsel

argued that if the king granted him cognitionem omnium placitorum

licet fuerim pars to be held before his baillif, it was good and

king could do that, the judges however made it clear that the king

grant could not make the grantee judge in his own cause, the grant

must expressly provide for a judge other than the grantee.

The king was the source of all justice. When the dual role of

the king as judge and as one of the parties to the suit, became mani­

fest, the solution was sought so that a man might not be made a judge

in his own cause. Professor Turner points out that, "The eventual

solution to this problem in political theory was to separate the

person from the office, the king from the crown, culminating in the

sixteenth century metaphysical conception of ithe king’s two bodies,

3
the body natural and the body politic". In England the divine right

theory had little importance and the political theory of England

began to advocate the constitutional restraint of the absolute power

of the king. ’It was argued that the power of the king was represent­

ed at delegated, in the first by God and in the second by the people.

1. A History of Political Theory, 1964,p.395.

2. [Link]. 21 Edw.4,F 44B, P.L.6, at F.47A.
3. The King and His Courts, pp. 201-202.
 385

Power is granted for certain purposes and its retention is conditi­

onal upon there fullfilment. God and the people are, therefore,supe­

riors, the king is bound to their service and the obligation owed
to him is limited and conditional'^

The king was regarded to be vassals of the king of kings, and

his sacred duty, like the ancient Indian King, was to reward the

good and punish the evil. According to Vindiciae, the exponent of

the contract theory, the king depended on law and law did not depend

on him. He says that, "The law is reason and wisdom itself, free

from all perturbation, not subject to be moved with choler, ambition

hate, or acceptances of persons". In fact law comes from the people

not from the king and the king is accountable under the law for his

every act.

James I, however, was of the view that the king was Suprem and

that, though, he was responsible in the highest degree, his responsi­

bility was to the God and not to his subject. In 1616 he charged

his judges in Star Chamber, "That which concerns the mystery of the

King's power is not lawful to be disputed; for that is to wade into

the weakness of princes, and to take away the mystical reverence

3
that belongs unto them that sit in the throne of God". What James I

meant was that he was supreme with no limitation on his absolute

power and that he could be judge in his own cause and he could admi­

nister justice according to his whims. However, Sir Edward Coke,

1. [Link], [Link]., at p.380.

2. Edited by Harald Laski, p. 145 F.
3. The Political Works of James I, 1918,p.333.
 386

the Chief Justice, opposed it, he told the king that the Sovereign

could not personally judge a cause between himself and his subject

and he was understood also to have affirmed that the principle was

parliament proof, a rule beyond the rich of a statute. Thus he wrote

his famous sentence, "In may cases the common law will control acts

of Parliament and sometimes adjudge them to be utterly void, for

when and act of Parliament is against common right or reason or repug­

nant, or impossible to be performed. The common law will control it

and adjudge such act to be void"^

"The root of all Coke's political ideas lay in his reverence

for the common law, which he conceived as at once the fundamental

law of the realm and the embodiment of reason, though of reason as

grasped only by the lawyers' guild. The common law was a 'mystery'
2
and Coke esteemed himself as its chief technician". [Link]

writes, "Urged by a presentiment of the coming conflict of Crown

and Parliament, he felt the necessity of curbing the rising arroga­

nce of both, and looked back upon his country's legal history to

find the means. This instinctive appeal to history for guidance was

characteristic, and the choice of a legal rather than any other

solution was amply justified by the remarkable continuity and stabi­

lity of English law during the vicissitudes of the seventeenth cent­

ury. His attitude is aptly expressed in one of his own picturesque

phrases: "Let us now peruse our ancient authors, "he wrote",for out

1. Reports, Part VIII, 118A.

2. G.H. Sabine, A History of Political Theory, p. 451.
 387

of the old field must come the new corn •"J’ So it was in this spirit

that he laboured at the ancient patrimony of his profession, those

short, thick folios of black-letter year Book, and from their forbi—

ding mass of obsolescent technicalities raised a harvest of politi­

cal theory which was destined to be the food of far-distant states

to which he had never given a thought. The solution which Coke found

was in the idea of a fundamental law which limited Crown and Parlia­

ment indifferently. What that law was, its nature and its contents,

were questions as difficult as they were insistent-and, as subsequent

events showed, capable of surprising solutions. The nearest we find

to an explicit definition of this fundamental law is the assertion

of the paramount law of reason. For the rest, the common lawyer's

reason is left in as much uncertainty as he himself ascribed to the

Chancellor's equity. Moreover, Coke was prepared to advance mediaeval

precedent for his theory, and is so doing has drawn upon his head

the criticisms of later investigators. Just as these criticisms are,

from the point of view of modern scholarship, it is only fair to the

Chief Justice to insist that his view of history was not ours, and

that it is only by the standard of his own day that a true evaluat­

ion of his learning and intellectual honesty can be formed. Although

it must be confessed that even then he cannot be found altogether

faultless, yet it is believed that a sufficient explanation will be

found to establish his bonafides. His doctrine is certainly based

largely upon mediaeval precedents and the extent to which they justi-

fy it is an interesting subject for investigation'.'

1. 4 Co. Inst. 109.

2. Bonham's Case and Judicial Review, vol.40, Harvard Law Review,
1926, pp. 30-31.
 388

Coke was a thorough going conservative. "For he represented

a conception of law, and of the relation of law to government, more

ancient than the absolutist philosophy of the king or the absolutist

-1

philosophy to which the parliamentarians were driven". Sir Frederick

Pollock says that, "Although Coke was no Canonist, we can be pretty-

sure that his theory was ultimately derived from the canonist doctr-

ines prevailing on the continent .

3
With this background in mind, we turn to Doctor Bonhan's case.

In this case Sir Edward Coke elevated to a fundamental principle of

the common law the proposition, that no man should be a judge in

his own cause. This case arose out of an action for false imprison­

ment brought against the president and censors of the college of

Physicians and others brought by Dr. Bonham. The College of Physici­

ans relied upon the letters patent dated 10 [Link]. It had incorpo­

rated them as the Royal College of Physicians, with powers to fine

practitioners in London who were not admitted by them, and further

general powers to govern all the physicians in London and District

with fine and imprisonment - in all cases one half of the fine was

to go to the king, and one half to the college. This patent was

confirmed by the statute 14, and 15 [Link],C., 5, which inturn

was confirmed by the statute I [Link].9, with the addition of the

general command to all Gaolers to keep such person as the president

and college shall commit to them, without bail or main prise. The

1. G.H. Sabine, [Link]., p.453.

2. The Expansion of the Common Law (1904),p.122.
3. 8 Rep.114a. 2 Brownl.255 (C.P.) 1610.
 389

college acted against Dr. Bonham in the pursuance of these statut­

ory powers. Dr. Bohnam practiced physic in the City of London with­

out the certificate of college. He was forbidden to practice but

notwithstanding such prohibition, he afterwards precticed for a

month or [Link] College imposed upon him a fine of 100 Shillings

and he was forbidden under pain of imprisonment to practice physic

until he had been admitted to do so by the college. Bonham continu­

ed to practice even after this and in October 1606 he was resummo­

ned. He did not come up and was sentenced in his absence to a fine

of 10 Pounds. He was again summoned, he appeared before them but

refused either to pay his fine or to refrain from further practice,

on the ground that he was a doctor of medicine of the University of

Cambridge and that therefore, the Royal College of Physician has

no jurisdiction over him. He replied that he had practiced and

would practice without leave of the college. The Censors committed

him to prison in the counter of fleet street. Dr. Bonham brought

an action of false imprisonment against the leading members of the

Royal College of Physicians. 1'he judgement was given for [Link].

Chief Justice Sir Edward Coke asserted that the censors have

not power by the letters patent, and the act to fine or imprison

any for simply practicing physic in London, but it could do so only

for ill, and not good practice of physic. He proved this by argume­

nts :

(1) The clauses are distinct and parallel and therefore the one

does not extend to the other.

 390

(2) The harm that accrues by improper practice concerned the body

of man, and therefore it is reasonable that the offender should be

punished in his body, that is by imprisonment. But he who practices

physic in London in a good manner, though he doth it without a lice­

nce, yet it is not any prejudice to the body of man.

(3) The time of a month is fixed by the first clause and a man

doth not offend the statute unless he practices in the City of

London a month. But no time is fixed in the second clause and if a

man practices improperly within a month, he doubtless would be puni­

shable. Thus the two are distinct.

(4) "The censors cannot be judges, ministers, and parties, Judges

to give sentence, ministers to make summons, parties to have the

moiety of the formditure. One cannot be judge in his own cause,and

it appeared in our books that in many cases the common law will

control acts of parliament and adjudge them to be utterly void.

For when an act of parliament is against common rights or reason,

or repugnant or impossible to be performed, the common law will

control it and adjudge such act to be void.

The learned Chief Justice emphasized in this point that it is

the principle of the common law that no person can be a judge in his

own cause because of the maxim that, "quia(e) aliquis non debet esse

judex in propria causa, imo iniquum aliquem sua rei esse judicem;

that is one canhot be judge an attorney for any of the parties'.

1. 8 Co. Re. 118a, 77 E.R. 646 at 652

 391

(5) If the two clauses were not distinct, an unlicenced physician

would be liable to a fine of one hundred shillings, fixed by the

statute, after practicing a month, and also to fine and imprison­

ment, under the second clause, for the same thing. But this is absur -

d , for no one should be twice punished for the same offence. Thus

the second clause must be understood to apply only to improper,

rather than to both unlicenced and improper,practice.

The whole arguments of the Chief Justice go to indicate that

the two clauses of the Patent were distinct, and the college’s power

to imprison was confined to imprisoning physicians guilty of impro­

per practice, and that Dr. Bonham’s imprisonment had been illegal.

The most important argument of the Chief Justice is withregard to

the rule against bias. What he said was that just as it would be

absurd to interpret the statute to permit an unlicenced physican to

be fined and to be punished by imprisonment for the one offence of

engaging in practice without a licence, it would also be absurd to

interpret it to permit the college to be party and judge, that is,

to assess fines in which it shares. Even though thestatute apparen­

tly gives the college power to fine unlicenced physican, when upon

investigation we find that the college has a direct, pecuniary

interest in those fines, it would be impossible, without absurdity,

to adhere even towards so unambiguous. It therefore, cannot fine.

'Coke's fourth point proves to be not a dictum, but a very material

portion of his argument. And finally, though Coke's fourth argument

is phrased in very wide terms, it visualises no statute void because

of a conflict between it and common law, natural law, or higher law.

 392

but simply a refusal to follow a statute absurd on its face .

Coke was very much familiar with the common law tradition and

he based his argument on the ordinary common law rules of statutory

interpretation, when he was suspended from his office in June 1616

and ordered to correct his Reports, which had challenged both crown,

and parliament and had provoked controversy, he gave a written

reply, which showed his complete confidence in historical basis of

his theory. He wrote that, "The words of my report do not import

any new opinion, but only a relation of such authority of law, as

had been adjudged and resolved in former times, and were cited in

the argument of Bonham's Case; and therefore, the words of my book

are thes, "it appeareth in our books, that in many cases the common

law shall control acts of parliament, and some time adjudge them to

be utterly void and I finding them truly vouched, I reported

them in this case, as my part was, and had no other meaning than so
2
far as those particular cases there cited, do extend unto".

Sir Edward Coke's contribution to The Maxim nemo judex in re

sua, cannot be minimised because of the origin, growth, decline and

fall of his doctrine in the English Court of Law. We have considered

in detail how he influenced the American thinking, and even to day

when the myth of parliamentary sovereignty is being gradually eroded

by many factors, he has been honourably revisited, in the chapter

of Natural Justice V Parliamentary Sovereignty. Professor Thorne

has rightly remarked that, "Coke's argument was soon to be read in

1. [Link], Dr. Bonham's Case, The Law Quarterly Review,1938,

543 at 548.
2. 6 Bacon Works (1803) Ed. at 405.
 393

a new light, and to bear fruits across the sea, but it is difficult

to believe that it contained as appeal to fundamental, higher, or

natural law. It furnished a form of words which soon became separat­

ed from the case in which they had been uttered, but when they are

returned to their proper place, Coke's ambitious political theory

is found to be not .his, but the work of a later generation of judges

commentators, and lawyers".

Professor T.F.T. Plucknett has very aptly remarked that,"this

is a long story, and all the time Sir Edward Coke plays a dominating

part. He took the practice of the fourteenth century-an age when

courts and statutes were still something of a novelty-and filled

it with a new spirit, the product of his own genius. The result was

really a new doctrine although fortified, he honestly believed,with

incontestable precedents from the middle ages; for he knew well that

without such support it would have availed nothing, although with

it, there was a possibility that the new theory might prevent the

imminent strife between Crown and Parliament. His personal defects

alone could not have sufficed to discredit so remarkable a contri­

bution to political science. Indeed, his views were shared even by

cautious Hobart, who later succeeded in winning the respect of

republicans as well as royalists. The weakness lay in the theory

itself, first, because its mediaeval basis was always open to disp­

ute, and so it was possible to support the vague feeling that it

was a novelty by showing that its roots in the past were not as deep

as its partisans alleged. The extent to which the theory was a

1. (1938) The Law Quarterly Review, 543 at 552

 394

novelty may be judged from the fact that both its supporters and

its opponents did not realize the implications of treating the common

law as fundamental; but surely, if the common law had always been

fundamental, then the prerogative lawyers would have obtained the

judgement in Godden v Hales long before 1686. Coke deserves our

respect for the originality of his contribution to the political

problem of his day, but it proved too strange and too uncertain to
serve his purpose"]"

The learned author further says that, "The rise of popular

government therefore, naturally brought with it the sovereignty of

Parliament. Nevertheless, Coke's teaching was not altogether invain.

His learning and prestige had made enough disciples on the bench to

familiarize lawyers with the outlines of his thought, and eventually

the strangeness wore off until it became evident that the new thought

could be grafted on to the common law. The Revolution came only just

in time to prevent the conversion, and to make it finally clear that

there was no place for it in English constitutional law. But the

common law was not confined within the four seas. In the American

colonies the Revolution meant something different. Parliament was

not their hero but a distant and unsympathetic body in whose deli­

berations they had no part. When it aroused their resentment, there­

fore, it was natural to remember the teaching of the great Chief

Justice, which had not been faced with the problem of the Revolution

1. Bonhams Case and Judicial Review, vol.40, Havard Law Review,1926,

p.30 at 68.
 395

settlement in American minds. The soverignty■of Parliament was by

no means so obvious an implication of the Revolution to people who

had not lived in London during the critical years from 1685 to 1688.

It is a cardinal fact that to the eighteenth century American the

doctrine of a fundamental common law was familiar, and regarded as

quite consistent with the common law scheme of things. Finally

there came the reception of Vattel's theoretical discussions which

coincided so nearly with the less elegant but equally fruitful dicta

from the English judge. It was due not only to that doctrine,but

also to the firm faith that “what my Lord Coke says in Bonham's

Case is far from any extravagancy" that we owe the bold experiment

of making a written constitution which should have judges and a

court for its guardians".

It is clear, therefore, that Sir Edward Coke set the standards

for the judicial behaviour in making it compulsory for the judges to

2
observe the maxim. "Aliquis non debet esse judex in propria causa".

John P. Frank writes that, "The common law of disqualification,

unlike the civil law, was clear and simple; a judge was disqualified

for direct pecuniary interest and for nothing elese. Although Bract-

on tried unsuccessfully to incorporate into English Law the view

that mere suspicion by a party was a basis for disqualification, it

was Coke, with reference to cases in which the judge's pocket book

was involved, set the standards for his time in his induction that,

"No man shall be a judge in his own cause".Blackstone rejected

1. 40, H.L.R. at pp. 69-70.

2. Co. litt. 141a.
 396

absolutely the possibility that a judge might be disqualified for

bias as distinguished from interest".

The fundamental rule in the administration of justice remains

that a man cannot be a judge in a cause where he is interested. This

rule is rigorously enforced. If a judge has any interest in the

subject matter of litigation before him, all proceedings will be

stayed or set aside unless the parties, "With full knowledge of the

facts have waived the objection. If the proceeding be in an inferior

court a writ of prohibition will issue on proof that the court or

any member of it is interested. If one justice has the least pecu­

niary interest in the matter before the bench at the time an order
2
is made, that order will be quashed".

Chief Justice Coke laid down the dictum that no man should be

a judge in a cause in which he is interested and the cases that came

after Dr. Bonham's case, practiced this dictum without any reservat-
3
ion. Thus in 1613 in the case of Earl of Derby , the litigation was

between Sir John Egerton and the Earl of Derby. The Earl of Derby

was the Chamberlain of Chester and it was resolved that, "The Chamb­

erlain of Chester, being sole judge of equity,cannot decree anything

wherein himself is party, for he cannot be judge in propria causa,

but in such case where he is party, the suit shall be heard in the
4
Chancery Coram domino rege". It may be mentioned here that Egerton

was the son of the Lord Chancellor and had married the daughter of

1. Disqualification of Judges, 56, The Yale Law Journal,1947,

605 at 610.
2. Encyclopaedia of the Law of England,[Link], p. 175-76.
3. 12,Co. Rep.114.
4. Ibid.
 397

Earl of Derby. It may also be noted that his wife's mother was his

father's third wife. The Chancellor himself had been formerly Chamb­

erlain of Chester and his son had been one of the barons of the ex­

chequer there. Thus there was a complete family picture and substa­

ntial interest. In 1614 Chief Justice Hobart observed that, "Even

an act of Parliament made against natural equity, as to make a

man judge in his own cause, is void in itself, for Jura naturae,

sunt immutabilia and they are legeslegum".

The learned Chief Justice further observed that, "Where a grant

is of a cognisance of pleas to be holden before the Steward of the

grantee, licet the grantee fuerit pars.... There the Steward is judge

himself, and not the grantee, as the king's judges are between him

and the parties, but here the recorder is but their mouth to speak

for them, as they command him.... If any act of Parliament gives to

any to hold, or to have conusans of all manner of pleas arising

before him in his manor.... Yet he shall have no plea, to which he

himself is party; for as hath been said, iniquum est aliquem suae
2
rei esse judicem".

3
In the case of the Earl of Derby the judges quoted the case
4
of the Lord of the Marches of Wales , inwhich it was laid down that

it is the reason of the common law that no man be a judge in his own

cause. It was held that, although an action will lie in Wales, yet

because he which hath cause of action cannot have justice there, he

1. (1614) Hobart,p.85 at 87 (Day v Savadge).

2. Ibid.
3. 12 Co. Report 114, 77 E.R. 1390.
4. (1409) Y.B. 11 Hen.4,27.
 398

shall sue here in the King's bench for when the particular courts

can not do justice to the parties they shall sue in the King's

general courts at West Minster".

In 1669 in Interbrooks v The Earl of Rivers The Chamberlain

of Chester and the judge, the Earl of Derby had a close relation

with the Earl of Rivers as he had married the Earl of Derby's sister.

In this case the said Earl of Rivers was plaintiff against Interbroo­

ks, and the dispute was concerning the title to some salt pits. It

was prayed by the defendant that since both the plaintiff and the

judge had interest there, it would be against the reason of the

common law that matter should be heard before the judge who had

interest in the cause. It was held that, "Where a judge has an inte­

rest neither he nor his deputy can determine a case or sit in court
3
and if he does a prohibition lies". However, on theexamination, it

was found that the Chamberlain had no interest there, the prohibit­

ion was not granted on the ground that, "For favour shall not be
4 5
presumed in a judge". In 1693 in Bridgman v Holt a writ of assize

was brought in the court of King's Bengh, to try the right to the

office of the Chief Clerk of the King's bench against [Link]

Holt, the brother of Chief Justice Lord Holt. Rowland Holt was in

possession under an appointment of his brother, the Lord Chief

Justice. Since the Chief Justice was an interested party, he did not

sit in the bench and sat near the counsel of his brother upon a

chair uncovered,the case was tried by the three puisne judges.

1. Ibid. 77 E.R. 1390.

2O (1669) Hardres 503, 145,R.R. 569.
3. Ibid.
4. Ibid.
5. Showers Parliamentary Case,111, 1 E.R.76 (77 E.R.1390).
 399

Sir William Holdswortli^pf the view that judges cannot be

judges in their own cause. After referring to the case of Bridgman

v Holt , he comments that, "So that it is clear the the judges would

not have thought it right to adjudicate upon a claim in which they

themselves were personally interested"? In 1701, in City of London

□
v Wood Chief Justice Holt observed that, "It is against all laws

that the same person should be party and judge in the same cause,

for it is manifest contradiction; for the party is he that is to

complain to the judge and the judge is to hear the party; the party

endeavours to have his will, the judge determines againt the will

of the party and has authority to enforce him to obey his sentence;
4
and can any man act against his will or enforce himself to obey?"

In 1702, in bright v Crump'’ the King's Bench granted an attachment

against Rolfe, an attorney and Steward of a Court in Norfolk for

having Misdemeaned himself in a trial before him between these

parties. The court observed that, "It is misconduct to sit as judge

in a cause in which he is party".

7
Chief Justice Holt, upon this motion cited 'Anonymous' in

which mayor in effect was a judge in his own cause and he was commi-
g
tted for these proceedings. In 1706 in the case of Foxhamtithing,

Chief Justice Lord Holt quashed the order of Sessions because a

justice of peace was surveyor of the high way, and a matter which

concerned his office coming in question at sessions, he joined in

1. Shower P.C. Ill, 1 E.R. 76.

2. (1932) 48 L.Q.R. 25 at 30.
6. Ibid at 766.
3. (1701) 12 Mod. 669.
7. 1 Salked 396 (91 E.R.343)
4. Ibid at 687.
8. 2 Salked 607 (91 E.R. 514)
5, (1702) 2 Lord Raym 766.
 400

making the order and his name was put in the Captain. The Learned

Chief Justice observed that, “It ought not to be, as if an action

be brought by the Chief Justice of the Common Pleas in the Court

of common pleas, the placita must be coram edro, Nevill Mil and

Sociis suis, and not Loramthoma Trevor, and C'.11 In 1790 in the

King v The Inhabitants of Yarpole, two justices removed a Pauper

from leominster to Yarpole. He appealed to the Session at which

15 Magistrates were present, eight of them were for confirming the

order, seven were for guashing. Three of those eight were rated to

the relief of the poor at Leominster. Since they were interested

party, their presence was objected to. The Chief Justice Lord Kenyon

made it clear that interested justice cannot vote. He sent the case

back to the session and directed them to enter a continuance to the

next sessions, in order that they may quash it. The other important

cases of the period, in which the rule against bias was rigoursly

applied are.... In between the Parishes of great Charte and Kenning-

3 4
ton^ the King v the Justices of Leicestershire , R v The Justices
5 6 7
of tssex , R v Hoseason , The King v Gudridge and others , King v
8 9
The Justices of Monmouth Shire , King v the Inhabitants of Rishtoxi.

In these cases it has been stressed that not to be a judge in one's

own cause is so fundamental a rule of justice that it cannot be over

turned by any practice or other formalities. Lord Chief Justice

Denman observed in R. v Cheltenham Commissioners10 that these

1. Ibid at 607.
2. 4 T.R. 71 (100 E.R.900)
3» 2 Strange. 1173 (93 E.R.1107) 1792.
4. 1 M.& S. 442 (14 R.R. 494) 1813. 8* 8 C.137(32 R.R.356)
5. 5 M.& S. 513 (105 E.R.1139)1816. J®2®* ™ «
6. 14 E.A.S.T. 605 (104 E.R.139)7811 55 R.R.327,1813.
7. 5 B.&C.459 (29 R.R.288) 1826. 7 0.^.467(55 R.R.324)1841.
10* 12
6
5
*4
 401

magistrates who were interested took part in the decision. It is

enought to show that this decision was followed by an order# and I

will not enquire what the particular question was# nor how the majo­

rity was made up# nor what the result would have been if# the magist­

rates# who were interested,had retired. The court was improperly

constituted and that rendered the decision invalid11 • Again in R. v

The Justices of Hert Ford Shire, the same learned Chief Justice

observed that, "A decision is vitiated by any interested person taking

3
part it it'.' He did not agree with the view that since the interested

judge did not take part in the decision making and the majority of

the bench confirmed the order without the vote of the interested

judge, the decision was not vitiated. His Lordship’s attention was

also drawn to the observation of Mr. Justice Patterson in R. v Chelt-

4
enham Commissioner that, "I must Guard myself, however, by stating

that I am not at present prepared to say that in a case, where one

magistrate is interested, and 50 others are not, the proceeding will

necessarily be invalide'.' Rejecting the argument the Chief Justice

observed that, "We cannot enter into analysis of the different moti­

ves which may have produced the decision, it is [Link] say that a

single interested person has formed part of the court. Thus the

general rule stands that vote of any interested judge must necessar­

ily vitiate the proceedings. It is not a good argument to say, that

because so many decision makers are present, one interested party

1. Ibid at 474.
2. 6 Q.B. 753 (66 R.R.556) 1845.
3
* Ibid at 756 (at 558 of R.R.)
4. 1 Q.B.467 at 478(55 R.R.321 at 326) 1841.
5. Ibid
6. 6 Q.B.753 at 756,1845.
 402

cannot influence the decision. Williams J. has pointed out that,

"A Court is badly constituted of which an interested party is a part,

whatever may be the number of the disinterested members"^ It may be

that interested party may dissent from other judges. Even then it

will be invalid. In fact, Patterson J. himself felt that his stand

in that case (Cheltenham Commissioners) was unsound and he observed

that, "It is very dangerous to allow an interested person to join,

whether the majority turns on his vote or not. The magistrates dis­

cuss the questions among themselves and it is impossible to say what

2
effect that discussion may have on the decision". Thus, the judges

have clearly laid down that any person, who has got any interest in

the subject matter of litigation, cannot be present in the adjudicat­

ing process. The important cases of the period are.... R. v Aberdare

3 4
Canal Co. , In the matter of an arbitra-
R. v Recorder of Cambridge,.
5
tion between J.M. Cooombs and [Link] Field, Worsley v the South
6 7
Devon Railway Co., R. v the Inhabitants of Upton St. Leonards , R. v
g
Millede and others justices of Wey Mouth, R. v Meyer and others,
9 10 11
justices of Middle Sex, R. v Lee , in Re Oilerton , William Ranger
12 13
v Great Western Railway Co. In R.v The Justices of London , the

1. 1 Q.B. 467 at 479 (55 R.R. 321 at 327)

2. 6 Q.B. 753 at 758 (66 R.R. 556 at 559)
3. 14 Q.B. 854 (117 E.R.328) 1850.
4. 8 E.& B. 637.
5. 4 E.X.839 (154 E.R. 145)1850.
6. 16 Q.B.. 539 (117 E.R. 986)1851.
7. 10 Q.B. 825 (116 R.R. 313)1847.
8. 4 Q.B.D.332, 1879.
9. 1 Q.B.D. 173, 1875.
10. 9 Q.B.D. 39 , 1882.
11. 15 C.B. 798 (139 E.R.639) 1855.
12. 5 H.L.C. 72, 1854.
13. 18 Q.B. 422, 1852.
 403

Chief Justice Lord Campbell remarked that,"The great respect should

be paid to the maxim which forbids any man to be judge in his own

cause. There is no doubt that a person who is interested in the

cause ought not to appear on the bench as a judge"?-

In 1853 in Exparte Mediwin an Hurst17 The Chief Justice Lord

23
6
5
4

Campbell observed that, "The law is wisely jealous on this head and

the slightest real interest in the issue of a suit incapacitates

any one from acting as judge in it...."^ Thus, in the Company of

Proprietors of the Rochdale v Radcliffe^, Mr. Justice Crompton did

not take part in the hearing because he had been previously counsel
5
in this case. In 1846 in Duke v Walford, Lord Campbell was Chancellor

of the Duchy of Lan Caster and he withdrew from the Judicial Commi­

ttee of the Privy Council during the hearing of the case in which

interests of the Duchy were concerned. Again the same learned judge

observed in Gorham v The Bishop of Exter , his famous Dicta that,

"Having myself sat as a member of a Judicial Committee when the

appeal referred to was heard, I should abstain from giving any opini­

on upon the propriety of granting this motion, if the application

7
were connected with any point then argued and decided'.' Again in 1846
8
when Dimes v Grand Junction Canal Company case came on to be argued

in error in the Exchequer Chamber, Alderson B. who was one of the

judges of that court, stated that he was a share holder in the comp­

any and for that reason he withdrew from the court. In the matter

1. Ibid at 425 (118 E.R.61) 1852. 8. 9 Q.8.469(115 E.R.1353)

2. 1 E.& B. 609 (118 E.R.566)1853.
3. Ibid at 614 (at 567 of 118 E.R.)
4. 18 Q.B. 287 at 297 (118 E.R.108 at 112)1852.
5. 5 Moore's P.C.,434 (13 E.R.557)
6. 15 Q.B. 52(117 E.R.377) 1850.
7. Ibid at p.64 (at p.382 of 117 E.R.)
 404

, Wightman J. stated that he was also a share holder

of William Dimes12
4
3

like the Lord Chancellor, in the Grand Junction Canal Co. and he

thought it better, "to take no pact in it"?

In Dimes v Grand Junction Canal Company^ the House of Lords

set aside a decree afirmed by Lord Chancellor Cottenham because he

had a pecuniary interest as share holder of the company to the ext­

ent of several thousand pounds. Though it was not shown that the

decision of the Lord Chancellor was in any way affected by his

interests as a share holder, and it was found that it was clearly

not affected at all, yet Lord Campbell observed that, “No one can

suppose that Lord Cottenham could be, in the remotest degree, influ­

enced by the interest that he had in this concern; but, my Lords,it

is of the last importance that the maxim, that no man is to be a

judge in his own cause should be held sacred... and it will have a

most salutary influence on (inferior) tribunals when it is known

that this high Court of last resort, in a case in which the Lord

Chancellor of England had an interest, considered that his decree

was on that account a decree not according to law, and was set aside.

This will be a lesson to all inferior tribunals to take care not

only that in their decrees they are not influenced by their personal

interest, but to avoid the appearance of labouring under such an

. .,4
influence".

1. 14 Q.B. 554 (117 E.R. 214)

2. Ibid at 558 (at 216 of 117 E.R.)
3. (1852) 3 H.L.C. 759
4. 3 H.L.C. at 793.
 405

Commenting upon this case, H.H. Marshall says that, "The autho­

rity that in modern times is regarded as the leading case on this

principle is Dimes v Grand Junction Canal decided in 1852. It is a

case of the highest possible authority because it was a decision of

the House of Lords, presi-ded over by the Lord Chancellor of the day

(Lord St. Leonards), as to the effect of the conduct of a previous

Lord Chancellor (Lord Cottenham)111The other important cases in which

2 3
this rule has been emphasized are; R. v Farrant , R. v Huggins , R. v
^aisford^, Serjeant and others v Dale\ Leeson v General Council of

Medical Education and Registration , R. v The London Country Council

7 8
exparte Akkersdyk, exparte Fermenia , R. v Aberdare Canal Company ,
9 10 11
R. v Rand , Lancaster and Carlisle Railway Co. v Heaton , Rechandler
12
Allinson v General Council of Medical Education and Registration ,
R. v Allan"'’^, R. v Hoseason^. It was laid down in R. v Suffolk JJ.

that, "It is very important that no magistrate, who is interested in

the case before the court, should interfere, while it is being heard,

in any way that may create a suspicion that the decision is influenced
16 17
by his presence or interference". R. v JJ. of Surrey is the other

1. Natural Justice, 1959,p.25.

2. 20 Q.B.D. 58, 1887.
3. 1 Q.B.D. 563,1895 (11 T.L.R.205)
4. 1 Q.B.D. 381,1892.
5. 2 Q.B.558,1877.
6. 43 C.H.D. 366,1889.
7. 1 Q.B. 190,1892.
8. 14 Q.B. 854.
9. (1866) L.R. 1 Q.B. 230. 16. 18 Q.B. 416 at 421.
10. 8 E. and B. 952. 17. (1852) 21 L.J.M.C. 195.
11. 1 C.B. N.S.323.
12. (1894) 1 Q.B. 750.
13. 4 B. and S. 915.
14. 14 East, 605.
15. 18 Q.B. 416 (1852, 21 L.J.M.C.169)
 406

important case in which the rule was strictly applied. Eckersley v

Mersey Docks and Harbour Board\ R. v Sussex Justices^, forme United

7 4
Breweries Company v Bath Justices 9 R. v Camborne Justices 9 Cottle
5 6
v Cottle 9 R. v Hendon Rural District Council ex-p
* Ghorley 9 Barrs

v British Wool Marketing Board'?, Cooper v Wilson^, R« v Leicester­

shire Fire Authority ex-p. Thompson^, Metropolitan Properties (F• G#

10 11
[Link]. v Lannon , Murdoch v New Zealand Milk Board , R. v Kent
Police Autho: ity ex-p. Godden^^, Ellis v Ministry of Uefence^, R.

Sunderland JJ. are (-^e other cases on this point.

It has been decided in these cases that an interested person

should not be a judge and he is incapicitated to be a judge in all

respects. It is, no doubt, a settled rule of the common law that the

least pecuniary interest in the subject matter of the litigation will

disqualify any person from acting as a judge and it does not matter

how small |his interest may be. However, the interest must be speci­

fic and it must be such, as will reasonably bias or influence the

minds of the persons who adjudicate. It must be remembered that over

insistence on the rule against bias may bring a disrepute to the

1. (1894) 2 Q.B. 667.

2. (1924) 1 K.B. 256.
3. (1926) A.C.586.
4. (1955) 1 K;B. 41.
5. (1939) 2 All E.R’ 535
6. (1933) 2 K.B. 696.
7. (1957) S.L.T. 153.
8. (1937) 2 K.B. 309.
9. (1978) 77 L.G.R. 373.
10. (1969) 1 Q.B. 577.
11. (1982) 2 N.J.L.R. 108
12. (1971) 2 Q.B. 662.
13. (1985) I.C.R. 257
14. (1901) 2 K.B. 357.
 407

rule itself. It is true that the legislature can, and no doubt in a

proper case would, depart from the general rule, as was asserted by

Blackburn J. in Merseydocks trustees v Gibbs1 that if an intention

to do so being clearly expressed, the courts give effect to their

enactment. The other cases holding the same views are: Ex-parte
Workington Overseers2, R. v Bolingbroke3, R.Henley45
. However, Bennett

J. has rightly observed that, "Parliament, of course, may have made

a party to a dispute judges in their own cause, but it seems to me

that one would need very plain language before one could conclude

that,that was the intention of Parliament, and in my judgment, that

interpretation ought not to be put upon the language unless

5
that is the only possible interpretation".

However, there may be such situations as will authorise the

same persons to take part in the adjudicating process, who may be

tended to act on suspicion. For example in 1981 in R. v The Secre­

tary of State for Trade Ex-parte, Perestrello,6 it was alleged that

the same company inspectors, who have previously investigated a

similar company under the same management, would not be unbiased

and their investigation will be influenced by their previous invol­

vement in the investigating proceeding. The court rejected this cont­

ention and held that the company inspectors investigating a company

have a policing function and they cannot realistically be expected

to be unbiased, since they are bound to be acting on suspicion. In

1. 1 H.L. 93 at p.102.
2. (1894) 1 Q.B. 416.
3. (1893) 2 Q.B. 347.
4. (1892) 1 Q.B. 504.
5. Wingrove v Morgan (1934) 1 C.H. 423 at 430.
6. (1981) Q.B. 19.
 408

, when a prisoner
1986 in R. v Frankland Visitors ex-parte Lewis12
4
3

was charged with a disciplinary offence, a prison visitor, who had

previously taken part in considering the same prisoner's applicat­

ion for parole, acted as chairman and it was argued that he could

not chair the proceedings because he was totally biased because of

his previous role, it was held that prison visitors had both admin­

istrative and judicial functions. They were having the duty to

supervise the administration of the prison and the treatment of the

prisoners, therefore, they were not disqualjfied on this very

ground. The Australian High Court has taken the same view in Murphy
2
v Lush , Kanedy J. held the same view in R. v R.B. Council ex-parte
3
Ouielynn Ltd. The rules against bias remains to be the fundamental

law of the common law and the judges give importance to this rule

to the maximum possible extent. It is true, that this rule has to

give way to the human aspect of the law, yet on the whole this rule

remains the guiding factors in the administration of justice. In

1988 in University College of Swansea, Cornelius^ it was held that

the situation should have been made known at the start of the hear­

ing so that a different member could have been appointed and the

appearance of the bias avoided.

We have already shown in our previous chapters the importance

given by U.S.A, and India to this Eternal Rule of Justice. A brief

survey of some of more foreign countries will serve the purpose

1. (1986) 1 W.L.R. 130.

2. (1986) 60 A.L.J.R. 523.
3. The Times, Oct. 7,1986.
4. The Times, July 13,1988.
 409

of investigation of the rule against bias.

The Brazilian Law gives much importance to the notion of

judicial impartiality. It has dealt with the problem of insulating

its judiciary from influences which tend to detract from its impar­

tiality. In order to protect judicial integrity, there are two

constitutional precepts. The first is that which provides judges

with special safeguard designed to preserve their independence from

their government. The second precept imposes restriction designed

to prevent personal interest from illegitimately influencing judi­

cial determination. Thus, article 123 of the federative Republic

of Brazil gives life tennure and irreducible salaries. On the other

hand upon penality of losing their positions, judges are forbidden

to exercise any other function except teaching, or to receive, under

any pretence or pretext what so ever any percentages in cases on

which they decide. The first of these prohibition seeks to remove

the judge from the subordination to the executive, the second seeks

to eliminate the possibility of a judge having a pecuniary interest

in his decision. The judges are also immunized from the passions

and interests of politics.

Whenever, there is a suspicion in the minds of the litigant

that a particular judge is unable to decide impartially, a judge is

incapacitated to adjudicate and either he recuses himself from the

bench, or the statutory provisions are applied to assure judicial

impartiality. Thus, Article 185 of the Code of the civil procedure

 410

talks of the disqualification arising out of relation, marriage and

other friendly activity. The code of criminal procedure clearly

lays down in Articles 252 (I t' III) and 25 (II to VI) that in the

following circumstances a judge will be rendered disqualified on the

ground of suspicion:

a) where a judge or his relative is charged with an analogous

offence;

b) where one of the party has to adjudicate in case in which

the judge or his relative are litigants;

c) where a judge has counseled any of the party;

d) where a judge is creditor, debtor, tutor or guardian of

any of the party;

e) where the judge is a partner, share-holder or administrator,

of a corporation or company interested in the case.

In such circumstances,the judge must spontaneously recuse

himself, if he fails to do so, a party may file an "exception of

suspicion", a motion which serves equally well to challenge the

impartiality of a judge for an impediment or a suspicion.

Professor Tacito and Barbosa Moreira, conclude that, "One can

affirm that Brazilian law considers only immediate personal interests

which can be objectively characterized as sufficient basis for presu­

ming that a judge is barred from deciding a particular case. A gene­

ral or remote interest is not considered sufficient cause for dis­

qualification. The law recognizes that when a man enters the judici­
 411

ary, he does not cease to be a member of the society and of his family

unit. While it Seeks to minimize possible opportunities for conflict,

the law does not prohibit him from possessing income producing capital

and goods, nor from teaching and publishing books and articles which

set out doctrinal positions about legal problems. Thus, Brazil has

tried to carve out a middle position in which a judge is disqualified.

only in. special circumstances in which the law presumes that the

intensity or specificity of his personal or family interest is so

strong that the indispensable impartiality of the judge is likely to

be compromised"1

In the French Judicial System the rules against bias is given

prominence. The law provides there the possibility for the litigant

to request that a judge be disqualified in particular cases. Thus

code [Link]. articles 378-396 and 378-379 deals with the procedure

of disqualification. A judge is disqualified by law by the mere fact

that he is related to the Attorney of one of the parties by blood or

by marriage. The procedure of disqualification is a special one,

called recusation. It enables a litigant to ask for Ithe disqualifica­

tion of one of the several members of the court with regard to a

particular case. Articles 378-379 have restricted the grounds on

which a party can ask for recusation. They are:

a) existence of family relationship,

b) personal interest,

c) Personal friendship,

1. Judicial Conflicts in Brazil,1970, The American Journal of

Comparative Law, vol. 18, 689. at 696.
2. Deeret,58—1281 of Dec.22,1958, Article 14.
 412

d) hostility etc. The recusation cannot be obtained on other

grounds than those enumerated in articles 378-379. The judgement on

recusation is given by the court of which the challenged judge is a

party. He cannot participate in the decision. He is replaced by any

other judge.

However, if, instead of suspecting a single judge, a party has

some reasons for suspecting all the members of the court on the grou­

nd of family relationship, for example a party may be related to

several members of the bench on account of his family relation. The

law in that case provides by article 368 the procedure of renvoi.

According to article 368 of the [Link]. renvoi can be obtained

firstly on the ground of family relationship, secondly on the ground

of 'suspicion legitime! This 'suspicion legitime' occurs when there

are serious reasons to suspect that all the judges of the courts

have a common interest in the issue or have common feeling in favour

or against one of the parties. In fact the independence and imparti­

ality of a judge is seen to be a matter of character and morality

than a matter of law in the French Judicial System. The complex

system of the modern world makes it essential to safeguard the pers­

onality of judges as well as the interest of the litigant. The French

System deals with the problem in two ways. In the first place, there

is a guarantee of impartiality in the judges by virtue of the very

office that they possess and that is why general requirements are

prescribed and are to be satisfied by the persons who are going to

hold the high office of the judge. Secondly the law provides speci -
 413

fic regulations to assure that interested and biased judges do not

take part in the proceeding. The procedure of 'recusation1 and

renvoi have been prescribed to achieve the goal. However, the

French Judicial System, does not have the problem of interest and

bias of the judges in the same proportion as is found in Anglo-

American System. Thus, Mr. Jean Pierre Plantard, Member of the French

National Judiciary wrote that, "It is remarkable that, despite these

numerous and precise provisions of the law, there are very few cases

in which problems of conflict of interest are raised. Clearly this

question does not give rise in France as such deep controversies

as, in the United States. The main reason seems to be in the differe­

nce in the organisation of the judiciary, particularly in the fact

that, due to the system of selection, usually the judges in France

have no other professional background than that of the judiciary. The

possibility left to a judge to abstain voluntarily from membership

of the Court in a particular case in which he may appear or may feel

to have any kind of personal interest is another way of avoiding

conflicts. This is widely used in practice"]’

1. Judicial Conflicts of Interest in France,1970, 18, The American

Journal of Comparative Law, 710 at 715.
 414

AGAINST bias in FEDERAL REPUBLIC OF GERMzaNY

The Federal Codes of Civil Procedure and Criminal Procedure

govern the judicial onflict of interest in the country. The civil

code, is known as ZPO (Zivilprozessordung). Codes 41—47 provide two

kinds of judicial disqualifications, the first is known as automatic

disqualification. There are six grounds for this automatice disquali­

fication. These are:

(1) If he is a party to the proceeding, or a co-interested

party or a co-debtor,

(2) In cases involving his spouse, even if the marriage has

been dissolved,

(3) If he is related to a party by blood or marriage within a

specified degree,

(4) In cases in which he has been counsel or guardian for a

patty,

(5) In cases in which he has been called as a material or

expert witness,

(6) In appellate court cases in which he has taken part in

the lower court.

The second is recusation on behalf of the party. Thus, a party

may recuse a judge, if the party reasonably fears that the judge is

biased. A judge may be recused by any party for the same reasons

which constitute the automatic disqualification. In addition to that,

if a party suspects that the judge is biased, he can apply for the
 415

recusation of the same judge before the trial begins. That party

has to make a sufficient affidavit showing that he has reason to

fear that the judge is biased. The judge has to answer the recusation.

The judSes are not allowed there to withdraw from a case at their

own discretion.

The criminal procedure is known there as StPO (Strafprozessord-

nung). The criminal procedure code provides the following grounds of

the disqualification of the judges in whom bias can be suspected.

These are:

(1) If he himself was a victim of the criminal act,

(2) If he is or has been the spouse or the guardian of the

defendant or of the victim,

(3) If he stands in some family relationship to thedefendant

or to the victim,

(4) If he has taken part in the case as police officer,procecu-

tor or as counsel for,the defendant or for the victim,

(5) If (in an appellate case) he has taken part in the decision

of the lower court, or (in a new trial ) if he has sat in the frist

trial.

However, the majority of the cases dealing with the questions

of judicial conflict of interest have come to the courts by means of

a recusation of the judge by a party. The German Codes make it clear

that it is not necessary to prove that the judge is actually biased,

it will suffice that the party may reasonably fear being prejudiced
 416

in his claim for impartial justice. Therefore, even if a recusation

is sustained, this decision by itself never casts any doubt on the

character and good standing of the judge.

However, Professor Hans [Link] points out that, "A consider­

able number of judges in Germany-in the lower as well as in the

higher courts-engage in legal writing or in occasional lecturing on

legal topics. They comment on decisions of other courts, and some­

times even on those of their own court, and express their views

rather freely. In the great majority of cases the fact that a judge

had earlier expressed in a legal periodical or in a lecture his

views on a point of law upon which the decision in the case at bar

hinges will not be accepted as sufficient reason for his rejection

for bias. The same holds true if the judge has given an opinion in

a previous case which one of the parties in the case at bar consid-

ers detrimental to his success"."Generally the concept of distance

has become an important outlook In a complex situation of inte­

rests of the parties administration must guard itself against being

pre-occupied by any one side and thereby losing the supervision and
2
crddioility".

disqualification of judges in japan

In Japan, there is a constitutional guarantee of the trial

by impartial judges. Article 37 Section 1 of the Constitution of

Japan guarantees the Public Trial by an impartial tribunal. In order

1. Judicial Conflicts Of Interest in the Federal Republic of Germany,

18,American Journal of Comparative Law, 716-720.
2. Basic Principles of German Administrative Law, Eberhard
P^oTatC?lT«tiVe onal naw, 1989, XXZ
 417

to guarantee impartiality of judges# the codes of civil and criminal

procedure of Japan Provide for the systems of:

(a) exclusion (Joseki), (b) Challenge (Kihi), (c) withdrawal (Kaihi),

of a judge from the exercise of his function in certain cases with

which he would oterwise deal persuant to the normal assignment of

cases.

EXCLUSION

Article 35 of the code of Civil Procedure details the grounds

for exclusion. A judge is excluded from the exercise of his funct­

ions if one of the following grounds is present therein:

(1) If the judge himself or his spouse or his former spouse is a

party to the case, or is related to a party as a co-creditor, co­

debtor or a person liable to recourse; in a criminal case, if the

judge himself is the victim of the accused crime.

(2) If the judge is or has been a blood relation within fourth

degree, or a relation by affinity within the third degree, of the

party, or a relative with whom a party resides; in a criminal case,

if he is or has been relative of the accused or the victim.

(3) If the judge is the guardian, the supervisor of the guardian,

or the curator, of a party; in a criminal case, the same.

(4) If the judge has ever acted as a witness or an expert witness

in a easel in a criminal case, the same

 418

(5) If the judge is or has been an attorney or legal representative

for, an assistant (hosanin) to, a party in the case; in a criminal

case,

(6) If the judge has participated in an arbitration award in relat­

ion with the subject matter of the case or if he has participated

in the hearing and decision of the case in lower court.

Article 37(1) of the constitution clearly lays down that if a

judge exercises his function despite the existence of the ground for

his exclusion that will be an unconstitutional act. Articles 389 and

395(1) of the C [Link], make it obligatory that if a judge exercir

ses his function in such circumstances, he will be exercising an

illegal .Eunction and if the ground is discovered in the course of

the procedure, another judge will replace and the procedure will

start from the very beginning.

CHALLENGE

"The system of challenge is thus designed to bar a judge from

exercising his function in a particular case by a court decision upon

a party's motion. Accordingly exclusion is a system of barring a judge

from the exercise of his function by operation of law, where as chall-

enge may be termed as a system of barring by decision". If the

party feels that there exists such circumstances as are calculated

to prejudice the imparatiality of decision and if there is apprehe­

nsion that he may give a partial judgement the party may move to the

1. Chuchi Suzuki,Problems of Disqualification of Judges in Japan,

18,The American Journal of Comparative Law, 727 at 730.
 419

court for exclusion of that very judge from the decision making

process. However, showing a real prejudice is not necessary, on the

other hand, it is not enough that a party fancifully entertains

suspicion of the partiality or unfairness of the judge. The circum­

stances must be such as to arouse doubt of the judge’s fairness in

a party of average detachment..

WITHDRAWAL

Section 43 of the [Link], allows a judge to withdraw from

exercising his,function, if a judge is of the opinion, that there

are grounds for exclusion or challenge against him in a particular

case. Section 13 of the code of civil procedure empowers the super­

visory court over judicial administration to permit the withdrawal

of the judge concerned. "Withdrawal is a method by which a judge

forestalls on judication on exclusion or challenge, and voluntarily

abandons his assigned task. It must not be used for other purposes.

It is, therefore, neither a system for rescuing a weak judge who

feels the limit of his competency for a particular case, hot one to

be used by a judge in order to neglect his duty because of his beli­

ef that to adjudicate the case under a specific law would be against

his conscience".

The Japan's adjudicating process gives much importance to the

impartiality of the judges. The constitution, and civil and criminal

courts very much assure that disqualified judges are not appointed.

1. Ibid at 737.
 420

The most essential element of judicial administration is the confi­

dence of. the people in it and in order to maintain that confidence,

able, experienced, unbiased and impartial judges must be appointed.

faking into account these elements of the impartial administration

of justice, the qualifications of the judges and the grounds for

imcompetency are provided in the Japanese Counstitutional System.

DISQUALIFICATION IN SOCIALIST STATES

Through the Marxian Administrative Systems in the World do not

follow the concept of impartial administration of justice in the

sense in which Ancient Indian Concept of impartiality is dealt with

or the Western Judicial System adhere to it, yet some notions of

impartiality of the committed judiciary of the Soviet Socialist

Republic are found in the 1923 code of civil procedure. It required

that a judge who was interested in the outcome or who had special

relationship with the contestant should be removed from the case,

either at the request of the party or at his own request. Article 47

of the code of criminal procedure laid down that the decision on the

removal of a judge at the request of a defendant in a criminal case

was to be made by the two unchallenged judges, and if they voted

for that, the removal was to be ordered. The code provided that in­

order to make an allegation against a judge to the effect that he is

interested, the interest must be substantial and material in chara­

cter. Mere moral obligation on the part of the judge would not con­

stitute material interest:. Thus, it was provided there that if a

1. Article 45 and 47.

 421

judge happened to be a member of a cooperative association or of

the executive council of an enterprise which was suing the acused,

this might constitute a material interest in the judge. "A reflect­

ion of the thinking of the period of restrained capitalism that was

being inaugurated at that time was evident in a cautionary remark

added to the effect that one can hardly avoid doubt as to the impart­

iality of a judge when a participant in the case is part of his house­

hold, such as his business manager, a tenant, or a servant, and the

right to remove a judge because of suspicion of his lack of imparti­

ality was declared to be one of the most treasured rights of the

accused". In 1960 the procedural codes were revised and it was made

clear by Article 23 of the code of criminal procedure that no person

can be a judge, if he is personally either directly or indirectly

interested in the case. Article 23 of the Russian Republics code of

civil procedure prevents a judge from sitting in the bench, if there

are other circumstances causing doubt as to his impartiality.

Item 296 of the civil procedure code of 1964 of Poland provi­

des that a judge shall be excluded Ipsojure. If he is one of the

party or if he remains in such a legal relationship with one of the

parties that the outcome of the suit affects his rights or obligat­

ions. A judge can beexcluded on the motion of a party, the polish

adjudicating process uses the word 'judex suspectus' in that case.

When the personal relationship is found between a judge and one of

1. John N. Hazard Al Ekasander W. Rudzinski, Judiciaj Conflicts of

Interest in Marxian Socialist Society, 18 A.J.C.C. 762 at 766.
 422

the parties, on his legal representative or there is animosity or

close friendship, the exclusion takes place "In summary, conflict

of interest problems are notably different in Marxian socialist legal

systems from those arising in states where private enterprise flour­

ishes in traditional or near tra-ditional form. Abolition of private

ownership of significant productive wealth eliminates the possibili­

ty of most conflicts based upon. The major problem in light of the

exclusion of most property ownership situations is raised by person­

al relationships of a nonproperty character. When these appear, the

courts have the duty in the U.S.S.R. of purging the bench of any

suspected judge, and this they are doing.

The Polish higher courts seem to be less quick to sense the

danger. The circumstances under which the sentence of judgement is

void are fewer, and in the discretionary situations, the higher

court rarely questions the wisdom of the lower court's decision on

the conflict situation as the Soviet Courts do". It is, thus, clear

that even the Marxian states give importance to the principle of

Nemo Judex Sua. Philosophically speaking they do not believe in the

existence of law and state but they were compelled to retain the

identity of both these institutions on the pretex that though they

are necessary evils, yet the withering away of the state and its

institution is halted till the Socialists states are surrounded by

the Capitalist?.-. Law, according to them, is an instrument to serve

1. 18 A.J.C.L. at 773.
 423

the ruling class. That is why much importance was not given in the

beginning to the law and the adjudicating process. However, the

nacked reality of the administrative process, the emergence of Commu­

nist Ruling Class and the inner conflict in socialist society, compe­

lled them to adhere to the principle of law and justice recognised

by the civilised nations. The recent upheaval in the socialist states

has also underlined the importance of the impartial and unbiased

adjudicating process. The Communist states have begun to disintegrate

and the true democracy is likely to lusherin. This may open a new

chapter in the history of impartial and unbiased adjudicating process.

The Swedish Administrative Procedure also gives importance to

the rule against bias. The judgesand administrative officials are

expected to be impartial and unbiased. It has been emphasized there

that a good procedure is very important for the protection of the

interest of private persons. Where no particular procedure is prescr­

ibed for adjudicating process "Certain general principles are resp­

ected as are the principles of natural justice in England. These

principles have been drawn from the general rules of procedure appli­

ed in the ordinary courts. In modern times the Court of Covernmen-t

has done much to fix the principles of a good procedure"]’ The judges

and officials are incapable of acting, if they are interested in the

matter. If a decision is given by such person,

that will be quashed.
substantially
It is not necessary there that interest of a party has not been^pre-

judiced, it is enough that interest is located.

1. Nils Herlitz, Swedish Administrative Law, 2 International and

Comparative Law Quarterly, 1963, 231. >
 424

Certainly it may be said that the impartiality of an authority

is often impaired by the fact that it has also to take care of public

interests. In some fields, for instance taxation, steps have been

taken to differentiate the particular officers with an authority,

one of them having to function as a sort of prosecutor (IX.5) but

thisarrangement is rare. It should be emphasized that even in admi—

niatrative courts and in authorities comparable to English "administ­

rative tribunals" it is only exceptional that the State is represent­

ed by someone who plays the role of a party in opposition to the

private party. This necessarily makes the procedure more inquisitori-

al than in the ordinary courts".

The European Convention on Human Rights adheres to the princi­

ple of Nemo Judex Sua. Article 6(1) of ithe convention says that,"In

the determination of his civil rights and obligations or of any

criminal charge against him is entitled to a fair and public

hearing within a reasonable time by an independent and impartial

tribunal established by law.

The above survey of the application of the rule against bias

provesthat the judicial and administrative adjudicating process is

even today held in high esteem all over the world. The most import­

ant reason of this is the pious confidence of the people that is

resposed in it. Not only the domestic adjudicating process but the

International adjudicating process and several human rights conven­

tions adhere to this rule. Every where it is felt that the society

1. Ibid at 231
 425

as a whole will begin to disintegrate from the moment the confidence

of the people in the judicial system begins to erode because of the

partiality and biased conduct of the judges and administrative offi­

cials. In every country special qualifications of the judges have

been laid down. They are expected to be impartial/ unbiased and free

from hot temper and greed. They must not act under the labour of

close friendship or actute hostility. Their conduct must be such

as will not engender suspicion in the minds of the litigant. The

judges may not be partial but some one may suspect them to be so and

the whole world's judicial procedure follows the rule against bias

simply to assure the disappointed party and he feels that he has

lost the case on merit and not for the private interest of the judge.

KINDS OF BIAS

There are five kinds of bias recognised by the judicial deci­

sions of the various countries. They are:

1) Pecuniary Bias: Pecuniary interest is inferred from the fact

that the adjudicating authority has some monetary interest in the

subject matter of litigation. It has been a known principle of the

common law that the pecuniary interest/ however small, shall disqua­

lify a person from acting as a judge in the matter. Thus Black Burn

J. observed in R. v Hammond that, "The interest to each share holder

2
may be less than l/4d, but it is still an interest".

17 (1863) 9 L.T. (N.S.423)

2. Ibid.
 426

The leading case on this point is Dimes v Proprietors of

Grand Junction Canal Co. In that case the House of Lords emphasized

that the least pecuniary interest in the subject matter will disqual­

ify a judge and the courts in England had time and again set aside ,.

proceedings of the courts and tribunals in which an individual who

had a pecuniary interest had participated. The other important cases

are; R. v Rand , Serjeant v Dale5, R. v Farranb, Leeson v General

5
Council of Medical Education and Registration , R. v Recorder of
6 7
Cambridge , and R. v Storks7.

Q
In R.C. Cooper v Union of India , commonly known as Bank Natio­

nalization case, some of Ithe judges observed during the hearing that

since they were share holders of some of the Banks, it would not be

proper for them to sit in the Bench because of the pecuniary intere­

st. However, the Government of India, the main respondent in the

case, submitted through the Attorney General of India, that Govern­

ment had no objection to hearing of the case by those Honourable

judges who were share holders. The other parties also give a similar

submission and the Bench started the proceeding thereafter. However,

the Supreme Court did not set a good precedent in that case. The

judges, who were share holders, must have withdrawn from the Bench

Suo Moto. They should have followed the example of Chief Justice P.
9
B.^ajendra Gadkar who in Jeejeebhoi v ^ssiatant Collector, Thana .

1. (1852) 3 [Link] 759.

2. (1866) L.R. 1 Q.B. 230.
3. (1877) 2 Q.B.D. 558.
4. (1887) 20 Q.B.D. 58.
5. (1889) 43 C.H.D. 366.
8. (1970) 1 S.C.C. 248
6. (1857) 8 E.& B.637. 9. A.I.R. 1965, S.C.1096.
7. (1857) 5 W.R. 563.
 427

did not take part in the proceeding of that case because he was the

Member of the Cooperative Society for which the land in dispute had

been acquired.

The Supreme Court has already stressed in NaQeshwar Rao v State

of Andhra Pradesh that, "Any direct pecuniary interest, however

small, in the subject matter of enquiry, will disqualify a judge,and

any interest, though not pecuniary will have the same effect, if it

be substantial to create a reasonable suspicion of bias. The said

principles are equally applicable or judicial tribunals, who have to

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

2
are empowered to discharge quasi-judicial functions".

It is clear, therefore, that the rule against bias is not conf­

ined to the p. cuniary interest. "The rule against bias is not confin­

ed to the pecuniary interest which is only direct. The disqualificat­

ion extends to any interest, though not pecuniary, which creates the

reasonable suspicion and a likelihood of bias. The disqualification

may also include those cases in which although the judge does not

pose himself as a direct party, yet he may be personally interested

either in one of the parties or in one of the aspects of the subject

matter in dispute. No exhaustive enumeration of the circumstances,

and no categorical definition of the cases, can be possibly given

in which a person acting as judge can be said to be personally

3
interested"

1. A.I.R. 1959, S.C.1376.

2. Ibid at 1378.
3. Dr. [Link], Law and Procedure of Departmental Enquiries
and Disciplinary Actions, 1985, p.1006.
 428

The Supreme Court reiterated the same principle in A.P.S.R.T.

Corporation v Satya Narayan Transport] The Gujarat High Court had

2
observed earlier the same in J.J. Mody v State of Bombay.

The courts have been reiterating the principle that in pecuni­

ary interest the quantum of interest is not material, it may be of

very small nature, but if it is direct, it will disqualify the

judges. The important point to note in this context is the integrity

and impartiality of the jidicial administration in this country. The

3
Recent News Paper Reports about the Graft Charges and Pecuniary

Interest Against Mr. Justice [Link] of the Bombay High Court and

transfer of the learned judge from Bombay High Court to Kerala. High

Court and his subsequent resignation has focussed the attention of

the biased atmosphere in which our judges are working. It all arose

when Mr. Justice M.P. Kenia stepped down from a division bench

which he shared with Mr. Justice Desai and undertook a fast to

protest against threats held out to him in a property matter which

was before them. The action of Mr. Justice Kenia not only brought

into focus the individual issue concerning Mr. Justice Desai but

also the general deterioration in standards in the higher judiciary

which was leading to a serious loss of confidence in the general

public. Commenting upon this editorially, the Time of India, says,

"The matter has now reached serious proportions with the Advocate

General's letter and demands by the various associations that the

judge be impeached, or prosecuted, if it can be established that

1. A.I.R. 1965, S.C. 1303.

2. A.I.R. 1962, Gujrat,197.
3. The Times of India, June 9, 1990, p.I and IV.
 429

(ft

his actions constituted a violation of the law. Mr. Justice Desai

has responded by asking the Chief Justice of India to conduct an

inquiry and stated that he would abide by the decision of the inqui­

ry committee. Such an inquiry is overdue and should have been initi­

ated immediately after Mr. Justic Kenia's fast, and Mr. Bobde's first

letter on the matter, over a month ago. The delay has meant a most

unsavoury trading of unsubstantiated charges which is bound to damage

further the credibility of the judiciary in the eyes of the public.

The issue is not just the moral depredations of a particular judge,

but the very foundations on which the higher judiciary functions,

that is integrity and impartiality. It is evident that urgent steps

need to be taken to check such a drastic decline in standards at a

time when the country needs to be reassured about the stability of

institutions, especially the judiciary. The Chief Justice of India

should speedily conduct an inquiry into .both the controversies that

have arisen involving a judge of the Supreme Court and the Bombay

High Court. The public needs to be reassured that the same law appli­
es to members of the judiciary as to the citizenry"]"

Mr. Justice S.K. Desai of the Bombay High Court was in the

Bench which was considering the matter concerning some propert­

ies. After the withdrawal from the Bench of Mr. Justice [Link]

on the alleged threat to his life if he did not favour or agree with

Mr. Desai, it came to be known that Mr. Justice Desai had taken Rs.

seven lacks in that case, and he had a pecuniary and personal inter­

est in that case through his friend Miss '^heimamenezes. The advocate

1. The Times of India, June 8, 1990, p.8

 430

General of Maharashtra Mr. Bobde wrote a letter to Governor in which

he lebelled serious charges against Mr. Justice [Link]. It was

alleged in the letter that he has taken bribe, that he has pecuniary

interest through his friend Miss Thelmamenezes that he was personally

interested in a litigation of Miss Menezes before the Bombay Civil

City Court filed a few years ago. The judge did the same when the

Women's case came to the High Court. That lady used to come to the

Court regularly to meet the judge and was operating in his name with

regards to the Court matters. That the mention of the woman by Mr.

Justice Kenia in open court on April 23,1990, brought to mind the

game behind the episode. The learned Advocate General had castigated

Mr. Justice S.K. Desai for having leaked out a letter written by him

to the Chief Justice in the [Link] the judge was transferred,

he resigned from the Bench and said that the charges that he was corr­

upt and that he was intimate with a woman who interfered with the

functioning of the court were baseless. He expressed surprise over

the animus shown towards him by some person. He was particularly

pained by the letters written by the Advocate General, Mr. Arvind

Bobde, to the Governor Mr. [Link], over Mr. Justice [Link]'s

fast. The judge also accused a section of the press for his present

predicament. He reiterated his demand for an inquiry either by the

Chief Justice of Bombay or the Attorney General of India. Commenting

on the loss of confidence resolution sought to be passed against

2
him, the judge said they were totally unfair.

1. The Times of India, June 8, 1990,p.4.

2. Ibid, June 9, 1990, p.4.
 431

The lack of confidence in the judges is a serious threat to

the existence of the society governed by democratic procedures and

rule of law. Recently the advocates of Jthe Bombay High Court passed

a resolution of complete lack of confidence, in four judges of the

courts, namely Mr. Justice [Link], Mr. Justice Shared Manohar,

Mr. Justice [Link] and Mr. Justice [Link]. The allegation

levelled against them was that they had decided judicial matter on

extraneous considerations. This is the first time in the post-indep­

endence history of Indian Judiciary and also the first t:'.me in the

over 125 year history of the Bombay High Court that such resolutions
have been passed.^ Justice [Link] was transferred to Allahabad

High Court on January 27,1991 in persuant of that resolution.

The conduct of the judges must be such as may create a sense

of confidence in them. If they decide the matter being influenced

by their pecuniary or other interests, the impartiality of judicial

administration will be in jeopardy. We are not passing any judgment

on the correctness of the allegations based on news paper reports. It

is enough to say that judges must avoid to create such circumstances

as may produce a reasonable apprehension in the minds of the people

that judges are biased. They are to decide the cases judicially and

impartially. The course of justice must be pure and undefiled, and

all judges and adjudicating officer, like Caesar's wife must be t

above suspicion in the exercise of their judicial functions. “The

pecuniary and other interest of that very particular kind must not

1. The Times of India, June 21,1990,p.4.

 432

come in the course of judicial decision making. In our country the

judges take oath to perform the duties of their office, "Without

fear or favour, affection or illwill"! Mr. Justice Desai should

have tried to clear the doubts about his pecuniary and other inter­

est and the various allegations levelled against him. Time and again

we are making it clear that we have nothing to say about the correct­

ness of the allegations based on news paper reports. Nevertheless,

we do stress that justice must satisfy the appearance of justice. In

a similar situation in U.S.A., justice Rehnquist participated in

2
Laird v Tatum. In that case Justice Rehnquist had already acted as

a witness and was holding a very strong view about the subject. Before

the appointment to the Supreme Court as a judge he was involved in

the Laird Case. When he participated there it was commented that,

"It is difficult to evaluate the propriety of a justice's participat­

ion in a case with which he has had contact prior to his appointment

to the Supreme Court. Objective rules of disqualification may be

formulated for situations in which a justice has a pecuniary interest

in the outcome of a case or a familial connection with a party or

his counsel. When as in the Laird case a justice's pre-judicial invo­

lvement with a case is at issue, standards of disqualifications are

difficult to formulate and apply, since a justice's contact with a

matter prior to his appointment to the bench will vary in nature

and degree from case to case. Nevertheless, certain observations may

be made concerning justice Rehnquist's decision to participate in

1. Constitution of India,1950, III Schedule, VIII, form of Oath

or Affirmation to be Made by the Judges of a High Court.
2. 408 U.S. 1 (1972).
 433

Laird v Tatum. Justice Rehnquist did not violate the specific provi­

sions of section 455, the only statutory standard of recusal to

which he was bound. His participation was not, however, consistent

with the goal of an impartial judiciary, as embodied in the Code of

Judicial Conduct, Section 144, Section 7 of the Administrative Proce­

dure Act and Supreme Court pronouncements. Having made widely publi­

cized statements in the factual and legal issues involved in Laird

v Tatum, Justice Rehnquist failed to take adequate cognizance of the

need to maintain the “appearance of justice" when he chose to parti­

cipate in the Laird decision. Although his judgement might have been

impartial, his participation in Laird lacked the appearance of impart-

iality necessary to maintain public confidence in the Supreme Court".

In this context the important point to be noted is that lawyers

themselves are interested paries and they try to involve judges in

the cases to gain their favour. Thus, because of them it becomes

impossible, to Jhave unbiased and impartial judges. The Bar Council

of India must think over this and must take initiatives to create a

healthy atmosphere in the judicial administration so that the purity

of the system is maintained and that the people's confidence in the

judicial process is not lost. The Supreme Court Bar Association has

passed a resolution calling for the resignation of Mr. Justice

Ramaswami for his alleged financial irregularities. A decision to

boycott his court till he resigns has also been taken by the Associ­

ation.

1. Note, Justice Rehnquist's Decision to Participate in Laird v

Tatum. 73, Columbia Law Review, 106 at 124.
 434

It is emphasized here that passing public resolutions and boy­

cotting courts does not create a conducive atmosphere where Justice

can be dispensed with impartially and without favour of fear. The

judges are not be referee to be removed at the wishes of the conte­

nding parties and their advocates. Such resolutions may also open

the flood gates for vested interests to push uncomfortable judges

into a corner. Such steps should be avoided in the interest of the

unbiased justice.

The pecuniary bias is not without limitation. As has been

pointed out the pecuniary interest must be direct, specific and not

remote. Thus in Favourite v Superior Court the judge's wife was

stock holder in the defendant corporation. It was argued that becau­

se of his wife’s pecuniary interest in that corporation, the judge

was disqualified on the ground of pecuniary bias. The court however,

ruled that stock holder was not a party within the meaning of code

of civil procedure of California, Section 170 and that the judge was

not disqualified, because his interest was very remote and continge­

nt expectancy in the stock on the wife's death would not be a disqu­

alifying interest within the general conception of that term. The

American courts have insisted that the circumstances disclosed by

the affidavit must infer the pecuniary interest in a specific and

reasonable manner, it mustnot be speculative. The important cases

2 3
are; City of Detroit v Detroit City Rly., Estate of Friedman , Day

V Day4, Hall v Thayer , State v Polley , Virginia Electric and Power

1. Cal.1919,184, pac.15.
2. (1893) 54 F.E.D. 1,19.
3. (1915) 171,Cal. 431, 153,Pac.918.
4. (1906) 12 I.G.A.H.0.556,568,86 Pac.531
5. (1870) 105 Mass.219.
6. 34 S.C. 565, 138,N.W. 300.
 435

Company v Sunship Building and Dry Dock CoJ

Prof, de Smith sums up of the position with regard to the pecu­

niary interest in the following words, "At common law no man is quali­

fied to adjudicate in any judicial proceedings in the outcome of

which he has a direct pecuniary interest. The rule applies no matter

how exalted the tribunal a decree made by a Lord Chancellor with

respect to a company in which he was a shareholder was held to -be

voidable or how trivial the interest. Nor is it material that the

judge could not reasonably be suspected of having allowed himself to

be influenced by his pecuniary interest. The rule applies to members

of magistrate's courts.

Disqualification will not attract if the connection between the

pecuniary interests of the adjudicators and the issue before them is

very tenous, or if their pecuniary interest will arise only lupon the

occurrence of an improbable sequence of events. It may be assumed,

however, that in marginal cases the courts will take a strict view

of the effect of pecuniary interest.

Where members of a tribunal are disqualified for pecuniary

interest but the invalidating effect of that interest upon their

decisions is removed by statute, the nature and effect of their pecu­

niary interest may still have to be examined in order to determine

whether it gives rise to a real likelihood of bias on their part.

1. 407 F. Supp. 324, 327

 436

In Australian cases it has been held that the pecuniary inter­

est of judge's spouse in an issue does not disqualify the judge from

adjudicating, though it will be a different matter if the circumstan­

ces give rise to a real likelihood of bias.

Pecuniary interest is not, of course, the only form of personal

interest that disqualifies. It is equally improper for the one person

to act both as adjudicator and as prosecutor, plaintiff or defendant

in proceedings in which he has no financial stake. Whether it is

strictly necessary to prove likelihood of bias in these extreme cases

is an academic point. More typical are those situations where procee­

dings are attacked because of an adjudicator's association with,or

previous conduct or declared attitudes in relation to, the parties

or the issues before him. Here it is accepted that a likelihood of

bias must be established for the challenge ot succeed."

2) Personnel Bias: The personnel bias is the most demonstrable bias.

It can arise from diverse sources. Its positive side consists of a

soft corner in the mind of the judge for one of the parties and may

arise from personal alliances or from kinship or from sentimental

affinities or from emotional inclination or from close associations

between the judge and a party. The negative side consists of hatred ,

malice, enemity or ill-will in the mind of ithe judge for either party.
The most obvious in this line is the existence of £>lood or marriage

relationship between any member of the tribunal and any one or more

1. Of. cit., 258-60.

 437

of the parties. The court has to be very careful to fix the quantum

of suspicions sufficient to disentitle a persons from being in the

tribunal, for example, a tribunal whose members are against cow­

slaughter should not be allowed to try a butcher or that a teetotaller

should not be permitted to judge a drunkard. Prof, de Smith says that

personal hostility, personal firendship, family relationship, profess­

ional, vocational relationship, employer and employee relation, are

also the facets of personal bias J-

Griffith and Street say that, "The third type of bias is perso­

nal bias. A judge may be a relative, friend or business associate of

a party, or he may be personally hostile as a result of events happen-

2
ing either before or during the course of a trial1.'

The personal attitudes and relationship play an important role

in making a biased judgement. Thus, the personal bias is an attitude

of mind and is psychological. It is related with the appearance

aspect of justice and if it is felt by one of the parties that because

of the personal friendship or personal hostility, the judge may not

be impartial and unbiased, the said judge will be disqualified to

adjudicate. Prof, de Smith says that, "There can be no doubt that in

the ordinary courts strong personal animosity towards a party disqua­

lifies a judge from adjusicating, it gives rise to a real likelihood

of bias. Thus, a conviction by an Irish Magistrate was quashed when

it was shown, .'by an uncontradicted affidavit, that very bad feeling

(orginating in a trespass by a fowl) existed between him and the

1. [Link]., 264 to 270.

3. Principles of Administrative Law, p. 156.
 438

defendant s family, and that shortly after the conviction he had

used words indicative of enemity towards the defendant. In Canada

magistrate was held to be disqualified from hearing a charge against

a person with whom he had recently come to blows. But evidence must

be compelling, the courts are reluctant to conclude that any judicial

officer's judgment is likely to be warped by personal feeling. General

expressions of hostility towards a group to which a party belongs

(e.g. poachers or motorists) do not disqualify"]-

Thus, personal bias is the attitude of the personal mind of a

person. When a person is personally prejudiced against a person, the

court very carefully lift the curtain and pierce into the matter

and point out whether in the name of departmental proceeding, the

element of personal bias plays its role or not. If the courts find

that the initiative, on the part of the official concerned, Iwho is

hostile to Jthe delinquent, is deep rooted with the view to secure a

conclusion against the person involved, the personal bias arises and

that disqualifies adjudicator. The courts have applied this process

and have set aside the decisions based on personal bias. I’he import-
2 3
ant cases are, Ramjag Singh v Bihar , Amolak Chand v S.D.O. , Meen-
4 5
glass Tea Estate v Workmen , A.K. Kraipak v Union of India , S.P.
Kapoor v Himachal Pradesh^, D.K. Khanna v Union of India, State

n 8
Road Transport Corporation v Satya Narayan Rao.

1. de Smith [Link]., p. 265.

2. A.I.R. 1958, Pat.7.
3. A.I.R. 1962, Ass.80.
4. A.I.R. 1963, S.C.1719.
5. A.I.R. 1970, S.C. 150.
6. A.I.R. 1981, SjC . 2181.
7* A.I.R. 1970, H.P. 30.
8.A.I.R. 1965, S.C. 1303.
 439

In Mineral Development Ltd. v Bihar1, the Supreme Court found

that the then Revenue Minister of Bihar had cancelled the petition­

er s licence for the lease of certain land because of his political

rivalry between him and the petitioner and the court set aside the

decision of the Minister on ground of personal bias. Again in Andhra

Scientific Co. Ltd. v [Link] Rao?', the Supreme Court quashed

the decision on the ground of personal interest of the general

manager. The court had already set aside the decision of the Super-
3
intendent of Police in U.P. v Mohamad Nooh , on the very ground that

the same person was prosecutor and witness. Sri Kant Upadhyaya v
. 4 5
Union of India , Shiodutt v State of Punjab , Bal Kishen v Collector
6 7
of Customs , Girish Chandra Ghosh v The Queen Empress , Subba Rao v
8 9
State of Andhra Pradesh , Darbari Ram v State of U.P. , Harsh Narain
v Inspector General of Police1? Gurdeo Narayan v State of Bihar1?

12 13
[Link] v State of U.P. , Rengarajan v [Link] are other

cases in which decisions have been quashed on ground of personal

bias.

1. A.I.R. 1960, S.C. 468.

2. A.I.R. 1967, S.C. 408.
3. A.I.R. 1958, S.C. 86.
4. A.I.R. 1963, Pat.38.
5. A.I.R. 1962, Punj.335.
6. A.I.R. 1962, Cal. 460.
7. I..L.R. 20 Cal. 857.
8. A.I.R. 1967, A.P. 414.
9. A.I.R. 1966, All. 578.
10. A.I.R. 1954, U.P. 50.
11. A.I.R. 1950, Pat. 131.
12. A.I4R. 1961, All. 45.
13. A.I.R. 1963, Mad. 76.
 440

An important case on personal bias and abuse of administrative

power is [Link] Singh v The State of Punjab12

, In that case the

appellant was a Civil Surgeon in the employment of the State of

Punjab, he had been suspended by State Government and the order

granting him leave preparatory to retirement had been revoked. A

departmental inquiry was instituted against him under Section (7) of

Punjab Civil Services Rules,1952. He challenged the legality of the

orders of suspension revocation of leave, retention in service after

the date of superannuation and institution of the departmental

inquiry, on the grounds inter alia (1) that the rules governing his

service did not empower the governor to pass the impugned orders

and (2) that the impugned orders were passed malafide by or at the

instance of the Chief Minister, who was Incharge of Health and who

was personally hostile to him by reason of certain incidence, and

that the orders were promoted by the desire on the part of the Chief

Minister to Wreak personally his vengeance on the appellant. I'he

Supreme Court set aside these orders on the ground that the dominant

motives which induced the government to take action against the

appellant was not to take disciplinary proceedings against him for

misconduct but to wreak vengeance on him for incurring the wrath of

the Chief Minister and for the discredit that he had brought on him

by making allegations against him in an article in the Blitz dated

2
15.1.1961. In [Link] v State of Andhra Pradesh' certain routes

were nationalised and private buses were prohibited to run on such

1. A.I.R. 1964, S.C. 72.

2. A.I.R. 1964, S.C. 962.
 441

roads. In fact, the then Chief Minister of that state was personally

hostile to the Private Bus Operators because they were his political

opponents, and in order to deprive them of the opportunity of running

buses on those routes, the routes were nationalised. The Supreme

Court struck down the scheme as having been engineered by malafides

on the part of the Chief Minister. Earlier in State of Bombay v

1
[Link] the Supreme Court had set aside the order under Section

12(5) of the Industrial dispute Acts, 1947 because the order was based

on extraneous considerations not Germane to the point.

The Bar Council of India under its rule 6 has enshrined the

rule against personal bias. The rule prohibits an advocate form

practicing in any way before a court, whose sole or any member is

related to him as, "Father, Grandfather, son, grandson, uncle, broth­

er, nephew, first cousin, husband, wife, mother, daughter, sister,

aunt, niece,father-in-law, mother-in-law, son-in-law, brother-in-

2
law, daughter-in-law or sister-in-law". In fact Mr. Justice Bapanna

passed an order dated June 17,1983, prohibiting Mrs. Nesargi to

practice in the Karnataka High Court as she was the wife of the

sitting judge of that High Court, Mr. Justice Nesargi. The order

was inconsonance with rule 6 of the Bar Council of India Act. He had

observed that Mrs. Nesargi belonged to the small but exclusive frat­

ernity of judges and their spouses whose social life and social

intercourse are governed by certain exacting convention and standard.

He further said that, "Because of her belonging to the exclusive

1. A.I.R. 1960, S.C. 1223.

2. The Times of India, July ,1983 p.13.
 442

fraternity of judges and their spouses, there may be a sub-conscious

influence of feelings on the mind of lth.e judge who hears the learned

counsel, which reason may not control and these may affect the purity

of administration of justice"]- This order was challenged by Mrs.

Nesargi in the Supreme Court on the ground that a literal meaning

could not be given to rule 6 of the Bar Council of India Act. The

Supreme Court has not yet given its verdict on this case. The fact

remains that the close family relationship creates a reasonable

apprehension of personal bias and it has to be seen by the judicial

administration and the Bar Council of India that High standard of

impartiality is maintained and the personal relatives of Xhe judges

are not allowed to practice in the courts in which they are presid­

ing judges. We must give due respect to the advice given by an Ex­

Chief Justice of India, Mr. Justice [Link] on the eve of

his retirement. He gave a very pathetic state of affairs in the

2
Indian Judicial System. According to him "There are atleast 5 or

6 judges in every High Court who take part in the evening feasts of

wine and there they compromise their judicial standards with the

personal relation established during these feasts. They must refrain

themselves from participating in these parties and from coming into

contact with politicians. The relatives of the justices must not be

allowed to practice in such courts as are having their relatives as;

judges. The learned Chief Justice further said that the relatives

of the judges are practicing atleast in 22 High Courts and the month­

ly income of huch relatives of the judges is more than Rupees ten

1. The Times of India, July,1983,p.13.

2. Hanik Jagaran, J->ec.l7, 1989, p.7.
 443

thousand. When the relatives are practicing in the same High Court,

the personal bias comes to play and they should avoid it. It must

be remembered that Mr. Justice Venkataramiah has been an ardent

advocate of the integrity, impartiality and unbiased attitude of the

judges, when it was alleged that the judges hearing the Bhopal Gas

Case had given a compromise order and it was reported in the press
1
that, "Something else had been going on behind the curtains", he

threatened to resign from the bench hearing the Union Carbide Case.

Thus, where the personal integrity is attacked and personal bias

comes on surface, the judges must withdraw. In 1984 In [Link]

and Co. v State of Orrisa the Supreme Court set aside a decision of

the Committee which recommended a book written by one of the members

of the Selection Committee. It is true, said the court, that the

author of the said book did not participate in the proceeding, but

it could not be said that the remaining members could keep themselves

away from the influence of a person who was their colleague in the

same committee.

Recently the Gujrat High Court also set aside a decision of

the Committee constituted by the Gujarat Government to select the

books fbr the government departments in Kurn Kum Prakashan v State of

Gujrat? on the ground that in that Committee the daughter-in-law of

one of the authors was the member of the Selection Committee. The

court was of the view that there was a reasonable apprehension in

the minds of other persons that an element of personal .bias was

1. The Times of India, Mar..4, 1989,p.3.

2. (1984) 4 S.C.C. 103.
3. A.I.R. 1990, Guj. 12 at 11
*
 444

present and that the decision of the committee was influenced by

that very element.

It is, thus, clear that the courts have continuously held

that personal bias of both kinds, positive and negative, should not

play a role in the decision making process. The courts represent the

community sense of decency and fairness, it is the bedrock of the

judicial system in the whole world. Any conduct of the adjudicating

personality showing a personal inclination in favour of some one who

is interested in the outcome of the matter in dispute must be conde­

mned. Thus in 1977 the then Chief Justice Beg had informed the judges
. 1
considering with him the case of State of Rajasthan, v Union of India

that the Acting President Mr. [Link] had met him and during the

conversation the pending matter of the case was also discussed

between the two. The political atmosphere at that time showed that

the Acting President was interested in the judgement which would

favour the party that was not in power at centre. This personal inc­

lination of the Acting President was very much clear and he should

not have a meeting with the Chief Justice at the time when the

important case concerning the federal character of our constitution

was being considered. Narating this incident, Mr. Justice Coswami

said that, "I part with the records with a cold shudder. The Chief

Justice was good enough to tell us that the acting President saw

him during the time we were considering the judgement after having

already announced the order and there was mention of this pending

1. (1977) 3 S.C.C.592; A.I.R. 1977, S.C. 1361

 445

matter during the conversation• I have given the matter the most

anxious thought and even the strongest judicial restraint which a

Judge would prefer to exercise, leaves me no option but to place this

on record hoping that the majesty of the High Office of the President,

who should be beyond the high-watermark of any controversy, suffers

not in future"! The Chief Justice had to issue a Press Statement

clarifying that the acting President had met him only to invite him

to a wedding reception of his son and that a single word was not

uttered about the constitutional case. It would have been better,if

the meeting could have been avoided.

Judges are the guardians of the constitution and they are also

watchman. It will be very difficult to appoint authorities to watch

the watchman themselves. Thus Professor Glanville Williams wrote,

2
"The Lords an impossible attempts, or Quis Custodiet Ipsos Custodes".

It simply meant that who will watch the watchman themselves. It. is

true that no judge likes to be made to look ludicrous, or to have

his impartiality put in question, in the course of exchanges between

the bench and the Bar. The judges must remember the famous sentence

of Justice Bhagwati that, "I think it was Mr. Justice Jackson who

said that judges are bribed by their ambition and loyality rather

than by money". And personal bias leads to that goal, it must be

borne in mind that the judges are there to administer justice imparti­

ally and if they take this opportunity to develop the law according

to their individual philosophy or personal inclinations, the imparti­

al and unbiased character of judiciary goes away. The judges are to

1. Ibid at 671.
2. (1986) Gafnbridge Law Journal, p. 33.
3. Union of India v Sankalchand, A.I.R. (1977),B.C. 2328 at2356.
 446

be impartial watchmen themselves. It is pertinent to [Link]

in this context. He says that, "In this context it will be recalled

that in referring to legislative and executive power, supreme Court

Judges are never tired of repeating Lord Action's famous saying "All

power corrupts, and absolute power corrupts absolutely". But judici­

al power is power; and the judicial power of the Supreme Court is

almost absolute. If the Supreme Court is to be free from the corrod­

ing touch of absolute power, its judges must be specially on their

guard against that corroding touch". The same learned author very

brilliantly explains the nature and scope of Jthe judicial function

in the following words. "Guardians of fundamental rights who do not

guard, judgements which do not judge, guidelines which cannot guide,

well intentioned innovations which unwittingly blight the academic

careers of thousands of students, and destroy the job opportunities

of hundreds of thousands of citizens raise in an acute form the true

nature of the judicial function. It is a sound maxim "Not by their

roots, but by their fruits ye shall judge them'.' If decisions rooted

in "well intentioned innovations',' or rooted in "the nagging doubts

of jurists, sociologists and administrators", or rooted in the philo­

sophies of Karl Marx, Tawney and Rawl, result, in effect, in a refu­

sal to decide the fundamental rights of thousands of citizens under

Art.15(1) and (4), and Art. 16(l),(2)and (4), for years on end, it

is time to ask whether there is not something wrong with the soil

which yields such bitter fruits. And this raises the question of the

true nature of the judicial function. Let us start with the judge's

1. Constitutional Law of India, Supplement, 1988,p.294

 447

oath. The relevant part reads: "I will duly and faithfully and to

the best of my ability, knowledge and judgement perform the duties

of my office without fear or favour, affection or ill will and that

I will uphold the Constitution and the laws'.' The words "to the best

of my ability, knowledge and judgement" leave the degree of ability,

the extent of knowledge and the soundess of ljudgement undefined. But

we know from the speech of Jawaharlal Nehru in the Constituent Asse­

mbly that he expected that we would get first class judges recruited

principally from the Bar. But the ability, knowledge and judgement

possessed by a judge had to be his 'best', that is, at its highest

pitch. It cannot be at its highest pitch, if he lets his ability rust,

his knowledge get out of date and his judgement, lose its balance.

For, by definition, "judgement" means "the faculty of being able to

make critical distinctions and achieve a balanced viewpoint". It will

be recalled that statutes of justice show her holding a pair of scales

in perfect balance. But ability, knowledge and judgement are not

enough, if fear or favour, affection or ill will tilts the balance

of justice on one side or the other. Or to put it differently, fear

and favour, affection and ill will are the worst enemies of justice.

An unjust judge is not only false to his oath; he is an object of

contempt where men, who know his work, gather together. But ability,

knowledge and judgement exercised without fear or favour are to be

directed to the supremely important task of "upholding the Constitu­

tion and the laws". A glance at our Constitution shows, to use Patan­

jali Sastri C.J.'s memorable words, that the Constitution was not
 448

made only for men of the Judge's mode of thinking, but for all. dt

follows that a judge who reads his pet theories into the Constitution

is not upholding the Constitution but only his own dubious theories.

there has been, and there is, a dispute whether a judge should exer­

cise selfrestraint or should be an "activist". But-on one point there

is no dispute, a judge must be impartial. In what does impartiality

consist? In Prof. Jaffe's happy phrase, it consists in "the disinte­

rested application of the law". For, if a judge has a personal inte­

rest in a matter, he cannot be impartial, but is biased, and the

disqualifying effect of judicial bias has long been a part of the

law of England and the law of India, No doubt, the interest in a

matter may be subtle; a judge who angles for a judgeship of the Inter­

national Court of Justice, or a judge who wants to be appointed a

Chief Justice over the head of a brother judge senior to him, may

tailor his judgements to secure his ends. Equally, he may tailor his

judgement in the opposite direction, if the ends have eluded him. But

this kind of bias is difficult to prove. So the disqualifying catego­

ries of bias, though large, are limited by the difficulty of proof,

but they decisively emphasize that a judge must be impartial. A judge

who has the slightest pecuniary interest in a matter is disqualified

from hearing that matter. Secondly, no man can be a judge in his own

cause, and a judge who is a party to a matter before the Court cannot

hear that matter. Finally, close personal relationship or proved and

bitter personal animosity towards one of the parties disqualify a

judge from hearing a matter. Finally, there is a class of cases in

 449

which although a judge may not in fact be biased, he would still

be disqualified if there is a reasonable likelihood of bias. Thus

our law requires a judge to be impartial and disinterested in the

matters he has to decide"?

In United States of America a very careful application of the

Rule against personal bias is made. It has been observed in United

States v 16000 Acres of land, More or less in LA. Bette County, Kan
2
et al. that, "By personal prejudice is meant an attitude against a

party to a proceeding derived otherwise than through judicial procee­

dings. No opinion based upon evidence or the proceedings before a

judge can form the basis of a personal prejudice against a party,

3
as such term is used in the statute."

It has been made clear in that case that reasons or comments

of the judge in making judicial ruling do not constitute personal

prejudice. Neither irritation upon the part of judge nor comments

upon the judicial tactics of a party or his counsel are sufficient

to show personal prejudice, whether such comments be discreet or in­

discreet? it Ijas been held in price v Johns ton’3 that, " Impersonnal

prejudice resulting from a judge's background or experience or pre­

judice against a particular type of litigation is not prejudice

within the meaning of 'statutein National Labour Relations Board

7
v Baldwin Locomotive Works, Mr. Justice Clark observed that, "To

begin with, respondents counsel displays a complete misconceptions

1. [Link], [Link]., p. 292-93.

2. 49, Federal Supp. 645.
3. Ibid at 649.
4. Ibid at 650.
5. 125 F. 2d.806.
6. Ibid.
7. 128 F. 2d. 39.
 450

of the meaning of a partial mind. Such a mind is one that is closed

to justice because some factorsdehore the record and prevents it

from functioning. If it does operate, the fact that counsel doesnot

agree with the operation.... may indicate such matters as lack of

education, legal or otherwise, lack of I.Q., lack of judicial temer-

ament etc. but it does not spell lack of fairness. So the courts

forbid any deduction of bias and prejudice from adverse ruling'.' In

2
Craven v United States , it was observed that, "Personal is incent­

res t with judicial; it characterises an attitude of extra judicial

origin, derived non coram judice. Personal characterises clearly

3
the prejudgement guarded against".

Bias and prejudice, in order to be personal in the meaning of

the statute, is not subject to division. It cannot be subdivided. It

is entire, it must be personal against one of the parties to the law

suit or personal in favour of the other party. It cannot be said to

be personal, if it applies only to a class of cases, for in that

event the prejudice instead of being personal would relate to ithe

nature of the proceeding itself. This court would be derelict in

its duty if, knowing the allegations to ±>e utterly unfounded, it

sustained the affidavits in question. Under such circumstances he

4
decline to desert his post of duty".

The judicial codes of United States declare that "Whenever a

party to any action or proceeding, civil or criminal, shall make and

1. Ibid at p. 57.
2. 22 F. ed. 605.
3. Ibid at 607.
4. United States v 16000 Acres of Land etc. 49 [Link].645 at
650-51.
 451

file an affidavit that the judge before whom the action or proceed­

ing is to be tried or heard has a personal bias or prejudice either

against him or, In favour of any opposite party to the suit/such

judge shall proceed no further therein but another judge shall be

designated to hear such matter. Every such affidavit shall state the

facts and reasons for the belief that such bias or prejudice exists

“ it has been observed in Berger v United States that,"It is

a precaution against abuse, removes the averments and belief from

the irresponsibility of unsupported opinion,and adds to the certifi­

cate of counsel the supplementary aid of the penalties attached to

perjury. Nor do we think that this view gives room for frivolous

affidavits. Of course, the reasons and facts for the belief the

litigant entertains are an essential part of the affidavit,and must

give fair support to the charge of a bent of mind t;h--t may prevent or
3
impede impartiality of judgement". The same line of argument has been
4 5
given in Henry v Speer,Wilkes v United States, Sacramento Suburdan
g
Fruitlands Co.v Tatham; it has been insisted upon that the bias must

be personal and any judicial ruling cannot be a basis for personal

bias because it can be corrected in appeal. It means an attitude

against party to the proceeding derived otherwise than through judi­

cial proceeding, and no opinion based on evidence or proceeding

before a judge can form the basis of personal [Link]

prejudice resulting from judge's background or experience or preju­

dice against a particular type of litigation is not personal preju-

1. 28 U.S.C.A.
2. 255 U.S.22.
3. Ibid at 31-34.
4. 5,Cir.2Ol F.869 at 871-72.
5. 9,Cir.8O F.2d,285 at 288-89.
6. 9,Cir.4O F.2d, 894.
 452

dice according to judicial code No.21 of the United States.

John P. Frank is of the view that the word bias denotes a pro­

pensity or preposition and it is the final ground for disqualificat­

ion. "Supreme Court Justices are strong minded men, and on the

general subject matters which come before them, they do have propen­

sities; the course of decision cannot be accounted for in any other

way. Nor can bias be based upon rulings in the particular case, the

general federal view is that the bias must be of extra judicial

origin. Bias in this sense means that bias which arises from the

judge's association with either an attorney, a party, or the govern­

ment"} The learned author concludes that, "In short, Supreme Court

Justices disqualify when they have a dollar interest; when they are

related to a party and, more recently, when they are related to

counsel; and when the particular matter was in one of their former

law offices during their association; or, when in the government,

they dealt with the precise matter and particularly with the precise
2
case; otherwise, generally no,.".

THE DOCTRINE OF PEREMPTORY CHALLENGE

The American Bar Association appointed a Committee headed by

Retired Chief Justice Boger Traynor of California to review genera­

lly the matter of standards of judicial conduct. In June 1970,the

Committee gave its interim report. It provided that a judge should

I. Disqualification of Judges: In Support of the Bayh Bill. Law

and Contemporary Problems, vol.35,1970,p.43 at 48O
2. Ibid at p.50.
 453

disqualify himself in any proceeding in his court in which he knows

or should know that he, individually or as a fiduciary, or any member

of his family residing in his household, has an interest in the matt­

er in controversy or the affairs of a party to the proceeding. An

'interest' for the purpose of this standard includes any legal or

equitable interest, no matter how small, in a party or in the res

or issue in litigation or any directorial, advisory, or other active

participation in any enterprise involved in the litigation. It incl­

udes ownership of shares in a mutual fund or other entity holding a

substantial interest in a party to the litigation. rhe proposal

further provides that disqualification should be by full disclosure

of record as to the nature and extent of the judge's interest. When

such disclosure indicates that a judge's interest is insubstantial,

he may, upon written request by all parties to the proceeding, with-

draw his disqualification and participate in the proceeding".

In order to do away the effect of personal bias, Senator 'Bayh'

introduced the judicial disqualification Act of 1970 in which he

wrote that, "Whenever a party to any proceeding in a district court

makes and files a timely affidavit that the judge before whom the

matter is pending has a personal bias or prejudice either against

him or in favour of any adverse party, such judge shall proceed no

further therein, but another judge shall be assigned to hear such

proceeding. The affidavit shall be timely, if file (a) twenty or

more days before the time frist set for trial or (b) within ten days

1. Interim Report,June 1970

 454

after the filing party is first given notice of identity of the

judge or (c) when good cause is shown for failure to file

affidavit within such times. A party may file only one such affida­

vit in any case, and only one affidavit may be filed on a side, A

party waives his right to file an affidavit by participating in a

hearing or submission of any motion or other matter requiring the

judge to exercise discretion as to any aspect of the case or by

beginning trial proceedings before the judge"

For the successful Working of the judicial system the proposal

put forward by senator Bayh should be accepted. However, it must be

remembered that personal and emotional resistance should not be the

yard stic to judge the judges. A judge is not expected to work sati­

sfactorily if the surroundings are strained and he feels humiliated.

In United States of America the peremptory challenge to the trial

judge has become one of the integral parts of the judicial system.

In 1980 in the House of Representative again aproposal was introdu­

ced by H.R. 7473 and H.R. 7765 that the litigant should be allowed

in federal courts to challenge peremptorily the trial judge assigned

to their cases. The proposal was again made in the first session of

the 97th Congress in 1981 by H.R.1649,

There are two views with regard to the doctrine of peremptorily

challenge. Those, who support these proposals, are of the view that,
since this system has worked satisfactorily in many states, it will

enhance public confidence in the judiciary. Those, who do not support

these proposals; are of the view that this suggestion is, "The worst

1. Section 3, Section 144 of Title 28, United States Code,was

proposed to be amended as given above, by SI. 1886.
 455

proposed legislation that has been introduced"? Slonim is of the

view that, "This challenge will lead to judge shopping and dilatory
. 2
tactices by counsel".

Personal knowledge, judges as party or witness, prior judicial

involvement, prior relationship, family ties, professional ties,

financial interest, personal bias or prejudice, bias with regard to

class of which party is a member, bias with respect to attorney,bias

with respect to subject matter, are held [Link] the causes of partia­

lity among judges.

[Link] says, "The peremptory challenge system has got its

own merit. It is simple, it discards all of the substantive incon­

sistencies in the present federal system by establishing system of

one automatic challenge per side per case. It thus, follows the

modern trend of making disqualification easier. However, the risk of

offending a judge and the uncertainty of the identity of the replace­

ment of judge will cause counsel to refrain from exercising the

peremptory challenge. In addition, the self restraining potential

of peremptory challenge is sharply reduced in large counties, where

an attorney may practice in frequently before the same judge"? The

same learned author is of the view that the peremptory challenge

system creates the following problems; (1) encouragement of judge

shopping, (2) judicial waste, (3) personal afront to the challenged

judge, (4) the appearance of justice,

1. Observations of [Link] Judge Robert Chapman quoted by

Slonimin Bench Bar Clash Looms over Challenges to Judge,66,ABAJ,
1503.
2. Ibid.
3. Meeting the challenge: Rethinking Judicial [Link]
[Link].69,California Law Review,1981,p.1445 at 1470.
 456

However, the peremptory challegne may encourage the judge to

decide whether he is conscious of a feeling or a leaning which would

make it unfair to his ideals and to the litigants for him to sit.

This challenge may arouse a sense of self consciousness in judges

and they may refrain from leaning towards any one of the parties. It

must be remembered that dissatisfaction with the ruling of a parti­

cular judge should not be a ground for peremptory disqualification.

The other kinds of bias are offical bias, mental bias, legal

bias. Really speaking these kinds are the branches of the personal

bias and some times it becomes very difficult to distinguish from

the person, the office which he occupies. Professor Wade has rightly

pointed out that, "The law must allow for the departmental bias

which he is expected and indeed required to have. The relevant quest­

ion is whether the minister, when he comes to make his decision,

genuinely addresses himself to the question with a mind which is

open to persuation" ]■

Some times an attempt has been made to distinguish the official

bias from the personal bias on the ground that while personal bias

may be of any person who decides a dispute, the official bias is

confined to domestic tribunal only, such domestic tribunal as are

empowered by statute or their official position to work both admini-

2 3
stratively and quasi judicially. However, after the Ridge v Baldwin
4
and A.K. Kraipak v Union of India the difference between the funct-

1. Administrative Law, 6th £d. 1988,p.492.

I' Bhan V State Of RaJasthan, A. I.R. 1961, Raj. 168
3. (1964) A.C.40. J •
4. A.I.R. (1970) S.C.150.
 457

ion have obliterated. On the eve of his retirement the then Chief

Justice of India, Mr. Justice [Link] said in a [Link]

that, "The more a judge says that he is not a committed judge, the

more he is committed. Every judge has got his own vision. This is

the old habit and it seldom dies! Apart from these there are certain

concealed and highly idiosyncratic biases of which no one can be

aware. They become the behaviour patterns of judges. If we take

into account these concealed biases, no one can be a standard judge.

What is necessary is that the apparent biases coupled with the hidd­

en one must not be permitted to play an important role in decision

making process.

EXCEPTION TO THE RULE

The rules against bias are not wild rules. It has got its

own exception. If the rules of natural justice are applied in most

unnatural and artificial way, it will not only bring disrepute to

the rule but it will take the natural justice, “On the misleading

road of sentimental potentialities". Thus it cannot be said that

rule against bias can be applied, without taking into consideration

the circumstances and exception.

The most important exception to the rule against bias is the

doctrine of necessity. Every body knows that necessity knows no law.

Marshall has rightly pointed out that, "A judge who would otherwise

be disqualified may act in a case of necessity where no other judge

1. Krishna Lal v Collector, Land Customs, A.I.R. (1967) Calcutta

1987.
 458

has jurisdiction. That the "necessity" rule is part of the common

law is undoubted"1

. 2
It was observed in The Parishes of Great Charte and Kennington

that "as to the case Of corporations they said, that if it appeared

there were no other justices it might be allowed to prevent a fail-

3 4
ure of justice". Parke B. said in Dimes v Grand Junction Canal Co.

that, "This is a case of necessity and where that occurs the object-
5
ion of interest cannot prevail".

It has been stressed time and again that the doctrine of nece­

ssity will override a disqualification regardless of the cause of

that disqualification. Thus Martin J.A. made it clear that,"The rule

against bias does not apply where the court acts exnecessitate e.g.

where an action is brought against all the judges of the court in

g
a matter over which the court has exclusive jurisdiction". InHals-

bury's laws of England it has been said that, "if all members of

the only tribunal competent to determine a matter are subject to

disqualification, they may be authorised and obliged to hear and

determine that matter by virtue of theoperation of the common law

7
doctrine of necessity".

1. Natural Justice (1959) p.38.

2. (1742) 2 Strande 1173, 93 E.R. 1107.
3. Ibid at 1108 of 93 E.R.
4. (1852) 3 H.L.C. 759.
5O Ibid at 787.
6. In Re the Constitutional Question Acts (1936) 4 D.L. R.134 at 137.
7. Fourth Edition, vol.l , p.89, para 73.
 459

Adjudicators/ who are subject to a common law disqualification/

may ^e authorised by the statute to officiate• There is no doubt that

Parliament can make a man judge in his own cause. Willis J. opined

in Lee v Bude and Torrington Junction Bailway Companythat/ 11 if an

act of parliament has been obtained improperly/ it is for the legis­

lature to correct it by repealing it/ but so long as it exists as

law, the courts are bound to obey it. The proceedings here are judi­

cial not autocratic/ which they would be/ if we could make laws
2
instead of administering it". Asquith L.J. observed the same in

Wilkinson v Barking Corporation that, "this is one of the increas­

ing numbers of acts in which an interested party first the local

authority, then on appeal the minister, is made judge in his own

cause. It is none the less the duty of the court to construe and

administer its provisions, and I feel little doubt as to its true

4
construction" .

Thus Section 5 of the justices of the peace Act 1949 Section

193(6) of the Licensing Act 1964, Section 61 of the Salmon Fisheries

Act, 1865, they all provide for making the judges in their own cause

of the necessities.

Necessity is aboveall the rules of proceedings. It was recog—

„ $ who acted on as Corporat-
nised in the King v the Justices of Essex
ion Justices and the few in number, it was held that where they

consisted of more than four, an appeal lay to them at sessions

1. (1871) L.R. 6, C.P. 576.

2. Ibid at 582.
3. (1948) 1 K.B. 721.
4. Ibid at 727.
5. (5 Maule and S. 513)
 460

against a poor rate, although there might be less than four who were

devoid of interest in question. The same line of rulings have been

. [Link] and [Link] v

given in Markwick v the City of London12
5
4
3

Mole , Serject v Dale . In judges V.A.G. for Saskatchewan

* the matter

to be determined was whether the salaries of the judges were liable

to income tax or not. The court decided against the judges, and the

Privy Council confirmed that the court was right to decide it, as

a matter of [Link] Sideney Rowlatt of the Privy Council, in

delivering the judgementsaid that, "the reference in question placed

the court in an embarrassing position, all its members being from

the nature of the cause personally interested in the point in contro­

versy. They took the view (quite rightly in their Lordships' opinion)

that they were bound to act exnecessitate. In the result they came

unanimously to a conclusion adverse to the contention put before

them on behalf of their order.... Neither the independence nor any

other attribute of the judiciary could be affected by a general

income tax which charged their official incomes on the same footing

as the incomes of other citizens. They found no reason for exempting

judicial emoluments from income tax. Their lordships were of the

same opinion"^

It is clear, therefore, that natural justice has to give way

to necessity, if it does not happen, there will be a failure of

justice. Prof. Wade is of the view that, In all the cases so far

T. (2 Bro P.c. 409)

2. (1911) 1 K.B. 836.
3. (1877) 2 Q.B.D. 558 at 566.
4. (1937) 2 D.L.R. 209.
5. The Weekly Notes (1937 Part II, p.109-110)
 461

mentioned the disqualificatied adjudicator could be dispensed with

or replaced by someone to whom the objection did not apply• But there

are many cases where to substitution is possible, since no one else

is empowered to act
* Natural justice then has to give way to necess­

ity for otherwise there is no means of deciding and the machinery

of justice or administration will breakdown"]'

The important cases in which the rule of necessity has been

2
applied are R. v Boleng Broke , Ex-parte the Overseers of Work-
3 4
ington , R. v Handsley , In Jeffs v New Zealand Dairy Production
and Marketing Board5, the Privy Council held that "It is clear from

the provisions of the Act of 1961 that it was the intention of the

New Zealand legislature to make an exception from the general rule.

It was intended that board should decide zoning questions even though
its pecuniary interests might be affected"5

The court applied the doctrine of necessity in R. v Licencing

Justices of Farnham' and R. v Tempest and others. The Master of Rolls

9
Collins observed in Licencing Justices of Farnham that "The standard

to be applied in considering the question of bias must be one which

admits the right of the parties to be one and the same time objector

and judges in sense in which they are judges in such matter, and

there fore, the standard laid down in such cases as Leeson s case

1. Administrative Law, 1988, p.478-79.

2. (1893) 4 Q.B.D. 536 at 537.
3. (1894) 1 Q.B.D. 416 at 418.
4. (1881) 8 Q.B.D. 383 at 387.
5. (1967) 1 A.C. 551.
6O Ibid at 565.
7. 18 L.T.R. 614.
8. 18 L.T.R. 435.
9. 18 L.T.R. 614 at 695.
10. 43 C.H.D. 366.
 462

and Allinson’s case is not applicable to them. They fall outside

their principles for two reasons — first they are empowered by law

to fill the two capacities, and secondly that, rightly understood,

the two capacities are not incompatible inthe sense in which in

those cases they were assumed to be incompatible. The other import-

9 3
ant cases of the period are; Boulter v Kent Justices? R. v Bownes ,
d 5
R. v The Justices of Glamorgan Shire\ Baxter v Leche and others ,
Whiffen and another v The Licencing Justices of Mailing6, Daykin v
7 R Q
Parker , Susannsharp v Lakefield , R. v Justices of London , R. v
Taylor and others, Justices and Laidler ex-parte Vogwill^^ R.A.S.G.

11 12
Society Ltd. v Parkinson , R. v South Ampton Justices , R. v Wood­
house^, Attood v Chapman^, r. v The Licencing Justices of Cheshire^"^

In this case Darling J. observed that," The general rule that persons

who had once decided a question should not take part in reviewing

their own decisions was not without ecxeption. Judges of the Queens'

Bench, common pleas and exchequer, when those old courts existed

often sat with other judges of the same court on appeals from their

own decisions, and there is still the case of the ’Court for the

consideration of crown cases reserved’, in which the judge, who has

reserved a point for the consideration of the court, often sits

1. (1894) 1 Q.B. 750.

2. 13 L.T.R. 538.
3. 3 T.R. 560.
4. (1892) 1 Q.B. 621.
5. 14 L.T.R. 352.
6. (1892) 1 Q.B. 362.
7. (1894) 2 Q.B. 556.
8. (1891) A.C. 173. 13. (1906) 2 K.B. 501.
9. 13 L.T.R. p.2. <4 Cl914) 3 K.B. 275.
10. 14 L.T.R. p. 185. 5 ^906) 1 K.B. 362.
11. (1892) 1 Q.B. 431.
12. (1906) 1 K.B. 505.
 463

without any objection and takes part in the decision of the point

reserved. Legislation was necessary to take away the power formerly

possessed by the judges of old courts. Legislation leaves untouched

what occurs in the court for the consideration of crown cases reser­

ved It is contended that such a man is biased. Well, it may be

or it may not be that he is, but the legislatures have, as it seems

to me, deliberately provided that such a justice may take part in

the consideration of the report. I think, this legislation makes an

absolute action to the ordinary rule governing judicial proceedings.

There are no words to limit the class of justices who may be appoin­

ted by the [Link]. The whole object of the act would seem

to be that the justice should be a justice who was conversant witth

the matter"

The House of Lords applied this doctrine in Leeds Corporation

v Ryder and others• In this case Lord Loreburn, the Lord Chancellor

opined that the judges were entitled to hear the case because of the

necessity and, “they must act, of course honestly and endeavour to

carry out the spirit and the purpose of the statute...• They exerc­

ising a discretion which may depend upon considerations of policy

and practical good sense and they must of course act honestly. This
□
is the total of the their duty" Lord Esher Mr. R. observed that,

"under these circumstances, it seems to me impossible that any reas­

onable person should think that he was biased, or in substance or

in fact he could be liable to be even suspected of bias, i’here is

. . „4
nothing upon which to found a suspicion •

1. Ibid at 370-72.
2. 23 T.L.R. 721.
* Allinson7v1
4 2General Council of Medical Education and Registration
(1894) 1 Q.B. 750 at 760.
 464

The doctrine of necessity as also applied in R. v Leicester

Justices. Lx—parte allbrightom^ and it was held that since the justi­

ces made their decision in a manner contemplated and sanctioned by

Parliament, that would not be set aside. In R. v Nailsworth licenc-

2
ing Justices ex-parte Bird Lord Goddard, C.J. observed that, "Licens

ing matters are left by Parliament to local justices for very

best reasons, that is to say, because justices have local knowledge

and it is impossible to suppose that any justice coming on to the

bench at a licencing meeting when he knows that there is an applica­

tion for licence or that there is opposition to the renewal of a

licence, has not formed his own private views as to whether the lice­

nce ought to be granted or refused as the case may be.... In all

3
these cases, it must be a question of degree".

In Phillips v Eyere^ Willes J. observed that, "It is manifest,

however, that there may be occasions in which the necessity of the

case demands prompt and speedy action for the maintenance of law and

order at whatever risk, and where the Governor may be compelled to

exercise defacto powers which the legislature would assuredly have

confined to him if the emergency could have been foreseen, trusting

that whatever he has honestly done for the safety of the state will

be rectified by an act of indemnity and obliviom.... It seems to be

plainly within the competence of the legislature to enact that they

5
shall be made and declared lawful and confirmed'.' The House of Lords

1. (1927) 1 K.B. 557,

2. (1953) 1 W.L.R. 1046.
3. Ibid at 1048.
4. (1870) L.R. 6 Q.B. p.l.
5. Ibid at p.16.
 465

again emphasised the rule of necessity in Ranger v the Great Western

Railway Company]-

Thus, we see that the situation with regard to licencing just­

ices is a different situation. Marshall points out that this differ­

ence, *
is in kind rather than in degree from the other exceptions

In the case of such exceptions the justices are judges sitting in a

court, who, forgood and sufficient reasons, have been exempted from
9
the principle that no man shall be judge in his own cause.

Marshall, however, does not agree with the view that this exe­

mption constitutes a statutory extension of the necessity rule. He

says that, "They are not a court or a judicial body but act admini­

stratively and so the rule that a man shall not be judge in his own
3
cause does not prima facie apply to them".

A careful perusal of the decisions of the courts reveals that

the judges have emphasized that the licencing justices must act

honestly, fearlessly, impartially and without being biased. We can­

not say authoritatively that since they act administratively, they

are exempted from the rule. Every body knows that licencing justices

are local people, they have local knowledge and it is impossible to

think that they may not form their own private views on the matter,

referred to them. What is required from them is to fulfil their

tasks without being predisposed to renewal or nonrenewal. The degree

of supicion must be sufficient to liold that there is an element of

bias in a particular judge.

1. (101) R.R. 46.

2. Natural Justice (1959) p.38.
3. Ibid p.48.
 466

There are many cases in administrative affairs where the acts

of these justices have been held to be judicial. It has been held

in the parishes of Great Charte and Kennigton12

* that practice could
7
6
5
4
3

not over turn so fundamental a rule of justice as that a party inte­

rested could not be a judge. The fact remains that irrespective of

their functions they have to act honestly. There is a Catena of

decisions, prior to Ridge v Baldwin which go to show that even in

administrative capacity, judges are to act impartially and without

being biased. This element has been emphasized in the Queen v Ihe
3
London Count: Council where Mr. Justice Wright observed that, “This

was a case of an administrative body exercising really administrative

4
functions, though involving something of judicial character". The

same line of argument was given in Remanchester (Ringway Air Court)

5
compulsory purchase order ; Phillip Rice v Commissioner of Stamp

Duty, Hamlet v General and Municipal Boil Makers and Allied Trade
Unions? Kildull v Wilson? R. v Amber Valley district Council ex-parte

Jackson9, R. v St. Admundsbury Borough Council, ex-parte Investors

10
in Industry Commercial property Ltd.

The doctrine of Necessity does not minimise the importance of

rules against bias, it simply says that the rule against bias has

to give way to the necessity, a very great necessity to prevent a

failure of justice. It was observed in State of Alabama v Mayor W.

Aldrige^^ that, “It may be gathered from all the authorities that

1. (93) E.R. 1107 at 1108.

2. (1964) 1 A.C. 40.
3. 11 T.L.R. 24.
4. Ibid at 26. 9. (1985) 1 W.L.R. 298.
5. (1935) All E.R. 510. 10. (1985) 1 W.L.R. 1168.
6. (1954) A.C. 216. 11. 39 A.L.R. 1470
7. C.H.D. Feb.27,1986.
8o (1939) 1 All E.R. 429.
 467

the courts very generally agreed that, of course, the rule of dis-

qualification is the paramount policy, and is only to yield when the

necessity is so great and overwhelming, that there may not ba an

entire failure of justice. The courts have treated the question as

presenting a comparisonof wrongs, or a choice of two evils. The oppo­

sition to the doctrine of necessity insists that it were better the

question be delayed until the omission be remedied by legislative

enactment. It may be doubtful that in every such case that suggest­

ion would be practicable, as, for instance, the situation presented

to the South Dakota Court in State ex rel. Null v Polley. The quest-
2
ion is one of much delicacy and difficulty of determination.

It must be remembered that the doctrine of necessity is to be

invoked in the case of extreme necessity. If it is invoked simply

for' the sake of necessity, the court will certainly not tolerate
3
such practice. Thus, in people ex rel. Pound v Trusties, it was held

that "As its name implies, the 'doctrine of necessity' is properly

invokable only when there is necessity. For example, where a tribu­

nal consisted of thirteen members of whom seven constituted a quorum.

It was error to act when only seven members of this body were present

and one of these seven was biased; the biased member could have

abstained from participation and his place could have been taken by
4
another without affecting the tribunal's power to proceed". Prof.

Davis is of the view that, "The easy and seemingly automatic appli—

ation of the rule of necessity is more dangerous than is recognised

1. 34 S.Q. 565.
2. Supra ..Note 9.
3. 4 Appe. Div. 399.
4. Ibid. 2 •
 468

in typical judicial opinions, for grave injustice may result from

allowing disqualified officers to adjudicate cases"}

The learned Professor advises that a great scrutiny is necess­

ary where the rule of necessity is invoked, 11 Whatever the principles

governing area and scope of review for ordinary cases, the extra­

ordinary cases which impel courts to resort to the rule of necessity

may obtain deserve extra ordinary scrutiny by reviewing court. If

the administrative process fails to correct a disqualifying bias,

the reviewing court should supply the correction". Professor Gelhorn

is of the view that, "Of course the 'doctrine of necessity' does not

give a tribunal carte blanche to be unfair. It simply permits it to

proceed with a case, despite circumstances which would warrant it

in transfering the case to another tribunal if one were available.

Disqualification of judges - and of administrators does not come to

pass because one knows that the hearing will be unfair, but because

it might be unfair and it is much better to avoid the risk if one

can. When the risk cannot be avoided, however, it is perhaps not

wholly unreasonable that the case should be permitted to go to hear­

ing"^ Professor de Smith also underlines that, "But the rule of

necessity ought not to be mechanically applied, if its enforcement

would Jbe an affront to jastice (e.g. where all members of the only

statutory body empowered to revoke a licence are subject to disquali­

fications), and it may be right for a court to scrutinise the actual

conduct of the proceedings closely, if the rule cannot be wholly

1. Administrative Law Treaties, vol.2, Ch.12. p.164.

2. Ibid at 166.
3. Administrative Law, Chapter 7, p.659.
 469

circumvented. If it is possible to constitute a different tribunal

unaffected by interest or bias, no diffculty arises. When in 1925 a

case came before the Supreme court of Texas involving an organisation

called the Woodman of the World, of which all the jud es of the court

were members, the Governor neatly solved the problem by appointing

an ad hoc court of three women".The reference here is to the case

2
of Johnson v Daun. Professor Davis has cited the case of Smith v
3
Department of Registration where the rule of necessity was held in­

applicable because the director could have appointed a committee of

4
qualified doctors.

The important point to be noted is that the doctrine of necess­

ity should not be invoked in a lighter vein. It has been observed

that, "The rule of disqualification is the paramount policy, and is

only to yield when the necessity is so great and overwhelming, that

5
there may not be an entire failure of justice". This doctrine may

some times engender in the minds of the judges that makes them help­

less to cure the injustice they may detect in the administrative

determination. Thus there is a great need for the reviewing courts

to escape the rule of necessity. Professor K.C. Davis suggests that,

"One escape route is by recognising that in some circumstances the

so-called 'necessity' may be something less than absolute. Courts

are not always helpless to correct injustice, merely because the

1. [Link]., p.277.
2. 144 Tex. 516.
3. 106, N.E. 2d. 722.
4. Administrative Law Treatise, vol.2,p. 164.
5. State [Link] v Aldridge, 212 la. 660 at 663.
 470

only tribunal which can adjudicate a case is disqualified# Courts

can hold that a system calling for adjudication by officers who are

disqualified is a denial of due process of law. Another escape route,

in many circumstances a more desirable one, is for the reviewing

court to reveiw both more broadly and more intensively when the rule

of necessity is invoked than when no bias gives rise to use of the

1
rule of necessity”. It must be noted that the doctrine of necessity

is an exception, an exception should not t>e invoked in such a way as

will engulf the rule itself. Exceptions prove the rule, they do not

disprove it. Therefore, the rules against bias rests on sound public

policy and theexception can be justified only by strict and imperlP^/J

2
necessity. It was observed in ReRyers that, ”I think, the, that upon

the facts of this case, as already stated, we may formulate a rule

thus: 1'hat where a judicial officer has not so direct an interest in

the cause or matter as that the result must necessarily affect him

to his personal or pecuniary loss or gain, or where his personal or

pecuniary interest is minute, and he has so exclusive jurisdiction

of the causes or matter, Jby constitution or by statute, as that his

refusal to act will prevent any proceeding in it, then he may act so

far as that there may not be a failure of remedy, or, as it is some—

u3
times expressed, a failure of justice .

The court have been insisting upon the fact that as far as poss­

ible, the rule against bias must be applied and the doctrine of

necessity should be applied in the cases of strict necessity. The

*1 Administrative Law Treatises, Chapter 12, p.165.

2. (1878) N.Y. 1, 28 ^[Link].88.
*
3 Ibid.
 471

important American cases on this point are; Bliss vCairle Brothers

2
Co.12
, Moses v Julian , Paddock v Wells3, Converse v McArthur4, It

has been laid down in the following cases that if there is some one

else who can act in the place of the disqualified person, the doctr—

ine of necessity does not apply. Metsker v Whitsell5, Wilcox v Supre­

me Council6, State ex rel. Bar Nard v Board of Education79

.8 In these
10
11

cases it has been emphasized that exception is not recognised, exce­

pt in cases of imperious necessity, and, in determining such necess­

ity, the greatest care must be exercised. It was observed in Moses

Q
v Julian that, "In some books the rule is laid down that, where the

duties of ajudge can be legally performed by no other person, he is

from the necessity of the case, competent to act, but we are unable
9
to assent to this general propositionThus, the court is in habit
of limiting the cases of necessity. The court laid down in Miller's1^

case that, 'If necessity ever justifies an in competent quasi judici­

al officer in acting, the necessity must be imperious', and held that

no such necessity exists where the members of the State Board of

Accountancy are disqualified by prejudice against one whose licence

as a certified accountant is sought to be revoked, though there is

11
no way in which the places of disqualified members can be filled'.'

1. (1907) 149 M.I.C.H. 601.

2. (1863) 45 N.H.52,84.
3. (1847) 2 [Link].(N.Y.)331.
4. (1854) 17, B.A.R.B.(N.Y.) 411.
5. (1914) 181 Ind. 126.
6. R.A. (1910) 66 Misc. 253
7. (1898) 19, Wash.8.
8. (1863) 45 N.H. 52.
9. Ibid
10. 222 Ala.660 at 663.
11. Ibid.
 472

No doubt, the doctrine of necessity should be confined to the

extreme cases of necessity, and the paramount constitutional rights

of the citizen, to Jbe heard and adjudicated upon by an impartial

and unbiased tribunal, should not be sacrificed, yet we must not

forget that the doctrine of necessity is an essential element of

judicial administration in which the interest of the litigant has

to be sacrificed, "Without sale, denial, or delay"} Sir Fredric.k

Pollock says that, "The settled rule of law is that, although a

judge had better not, if it can be avoided, take part in the deci­

sion of a case in which he has any personal interest, yet he not

2
only may, but must do so, if the case cannot be heard otherwise".-
Professor de Smith opines that, "An adjudicator who is sjubject to

disqualification at common law may be required to sit, if there is

no other competent tribunal or if a quorum cannot be formed without

him. Here the doctrine of necessity is applied to prevent a failure

of justice. So, if proceedings were brought against all the superior

judges, they would have to sit as judges in their own cause. Similar­

ly, a judge may be obliged to hear a case in which he has a pecuniary

interest. The judges of Sasketchewan were held to be required ex-

necessiate to pass upon the constitutionally of legislation render­

ing them liable to pay income tax on their salaries. Again, if a

member of a professional body, or other organisation has so conduct­

ed himself that no disciplinary tribunal can address itself imparti­

ally towards his case, he will hot inevitably be able to establish

1. Jeffersonian [Link]. v Hilliard; 105 Ala. 576.

2. The First Book of Jurisprudence, 6th Ed.1929,p.270.
 473

immunity form disciplinary proceedings on that ground"^

It is therefore, asserted that the rule against bias must

yield to the demands of necessity. Necessity constitutes an except­

ion to the general rule that a judge can act in his own cause. The

important American cases on the point are: In Releffe1

23, State ExRel
5
4
3d 5
Wickham v Nygaard , McCoy v Handl in , Galey v Montgomery County ,
Stafford v County Court6, Price v Fitzpatrick7, McNeil v McGillivary8
9
Com v Emery, It was observed in Federal Construction Company v
Curd'1’0 that, "Conceding it to be true, as a rule of ethics, that

no person or body of persons should sit in judgment in cases and

proceedings in which they are interested parties, and conceding,also

that it has been frequently and properly held that the attempted

violation of this ethical kule by persons presiding over causes

triable inthe ordinary courts of justice amounts to a denial of due

process of law to those who are injuriously affected by such denial,

yet, to this there are a certain exceptions, which are said to spring

from the necessity of the situation. The statement in general terms

of the principle underlying these exceptions is to be found thus

stated in 23 Cye.,581: Where disqualification, if permitted to pre­

vail, destroys the only tribunal in which relief may be sought,and

thus effectually bars the door of justice, the disqualified judge

is bound to hear and decide the cause.

1. [Link]; p. 276-77.
2. (1846) 2 [Link].(N.Y.)39.
3. (1915) 159,Wis. 396.
4. (1915) 35 S.©. 487. 3. (1907) 42 N.S.133.
5. (1910) 174 Ind.181. 9. (1853) 11 Cush.(Mass.)406.
6. (1905) 58 [Link].88. 10. Cal.177, Pac. 469.
7. (1919) 85 [Link].76.
 414

In U.S.A, the doctrine of necessity is termed as the "Stern

rule of necessity the American position has been very aptly summed

up by Prof. Davis. He concludes that, "Perhaps the aspect of the law

about bias that is most in need of critical reexamination is the

application of the rule of necessity. The Courts often hold that

judges or officers who are disqualified must nevertheless be allowed

to make decisions when no provision has been made for a substitute

tribunal. The use of the rule of necessity may often be desirable,

but the courts in some cases may be too readily yielding to apparent

"necessity", with the result that decisions made by seriously disqua­

lified officers [Link] stand. In revoking the rule of necessity,

the courts should always determine whetherin the circumstances the

system of allowing decisions to be made by disqualified officers

should be held to deny due process. And when the rule of necessity

is applied, reviewing courts may well consider that the disqualifi­

cation of the officers makes appropriate an intensification of

judicial review"

It is true that the court must be very serious in invoking the

rule of necessity, it is also important to note that the path of

justice should not be barred and law should not be nullified, because

of prejudice or disqualification of a member of a court or an

2
administrative tribunal."

Prof. Tracey lists the following grounds on which the doctrine

of necessity will operate.

1. Administrative Law Treatis, Vol.2,pp. 169-70.

2. Brinkley v Hassig 83F. 2b, 351 at 357.
 475

1) Where disqualified persons participation is authorised by statute,

2) Where no other adjudicator is available and action is an admini­

strative formality.

3) Where no other adjudicator is available and the conflict of

interest is created by different statutes,

4) Where all available adjudicators are disqualified as a result of

acts which were beyond their control.12
3

He further enumerates the exceptions to the rule of necessity.

They are:

1) Where another qualified adjudicator is available,

2) Whether no other adjudicator is available but the disqualifying

act is voluntary.

It is pertinent here to note that doctrine of necessity is

not applied in wild way. The nature of proceeding, the interest of

the parties, the public welfare and above all the people's confiden­

ce in the judicial administration are necessary perspectives in which

the evaluation of the rule of necessity must be made.

G.A. Flick concludes that, "The rule of necessity is perhaps

the greatest single common law exception to the general rule that an

adjudicator who appears to be biased or prejudicedmust disqualify

ii 3
himself from participating in a proceeding".

1. Disqualified Adjudicators. The Doctrine of Necessity in Public

Law, Public Law, 1982, 628 at 629-632.
2. Ibid at 632-638.
3. Natural Justice, p.139.
 416

The denial of justice is most important object in invoking

this rule. Lord Brougham observed in 1'hllusson v Rendlesham1,"That

it would not be assumed that the having been counsel in a cause

operated a disqualification to prevent thesame person, when raised

to the bench, from taking part in thedecision of that cause, for,

if that was the rule, it might, under certain circumstances, produce

terrible delay and expense to the suitor, and even an absolute

denial of justice, specially applied to a judge of the court of

2
Chancery". In this case, before becoming Lord Chancellor Lord St.
3
Leonards was counsel in the Tatham v Wright. That case came before

him in Chancery, on a matter which involved the exercise of judge's

discretion. Had he refused to hear, a great expense and delay could

have occurd and that would have brought a real denial of justice. To

satisfy his own mind he obtained the assistance of two learned judges

and then he took part in pronouncing the decision.

In Indian law the rule of necessity is clearly recognised. The

Andhra Pradesh High Court has very nicely observed in [Link] v

Cantonment Board, Secundrabad4, that "The rule as to bias has certain

exceptions. One is necessity as where an action is brought against

all the judges of a court in a matter where the judge commits a party

to contempt of court. In such cases, the principle of no man be a

5
judge in his own cause may have no application. Earlier, in 1954

in Sukhdeo Singh v Honourable C.J.S. Teja Singh and the Honourable

judges of Pepsu High Court6, the court observed that, "We do not lay

1. (1859) 7 H.L.C. p.429.

2. (1859) 7 H.L. Cases 429.
3. (39) E.R. 295. 6* &«C«186.
4. A.I.R. 1961, A.P. 37.
5. Ibid at 42.
 477

down any general rule because there may be cases where that is impo

ssible as for instance in a court where there only one judge or two

and both are attacked

* Other cases may also arise where it is more

convenient and proper for the judge to deal with the matter himself”•

In Shivdutt v State of Punjab, the rule of necessity was recog­

nised by Punjab High Court. In J. Mahapatra and Co. v State of Orissa

the Supreme Court laid down the rule that, "In the case of the PSC,

the doctrine of necessity is applicable which is an exception to

the rule of nemo judex in causa sua. An adjudicator who is subject

to disqualification on the ground of bias or interest in the matter

which he has to decide, may be required to adjudicate, if there is

no other person competent or authorised to adjudicate or if quorum

cannot be formed without him or if no other competent tbribunal can

be constituted. In such cases the principle of natural jutice would

have to give way to necessity for otherwise there would be no means

for deciding the matter and the machinery of justice or administra-

4
tion would break down.

5
In Braj Kishore v State of Orissa the Chief Justice Narsingham

observed that there exists an anonalomus position in the constitution

under Article 235. Article 235 makes High Court the sole authority in

all disciplinary matter in its administrative side. Thus all the

papers relating to the disciplinary matters are handled by the judges

of High Court. When juddcial officer is punished by the administrat—

1. Ibid at 190.
2. A.I.r. 1962, Punj.355.
3. (1984) 4 S.C.C. 103.
4. Ibid at 112.
5. A.I..JU 1966, Orissa, 183.
 478

ive action of the High Court, he comes before the same High Court

under Article 226 of the Constitution. The same High Court is requ­

ired to decide the case judicially. The result is that the same

authority which administratively recommended the imposition of a

punishment on a judicial officer under its control, is also requi­

red judicially to decide about the legality of the punishment when

the matter comes up before it under Article 226. The learned Chief

Justice admitted that under existing provisions of the constitution

this anomaly could not be avoided specially in a small High Court

like Orissa. He went on to say that, "Perhaps in a big High Court

with several judges all administrative matters relating to judicial

officers (including those involving disciplinary proceedings against

such officers) may be dealt with for the sake of convenience, by a

small Committee of Judges, so that when the final order of punishment

is subsequently challenged before that High Court in the shape of a

writ petition, that petition may be pleaded before other judges who

had nothing to do administratively with the proceedings earlier.

But this is not possible in a small High Court where, under the

rules, all matters involving the passing of major punishments on

officers of the Judicial Service are required to be placed before

the Full Court of all the judges. We had therefore, no other alter—
1
native but to hear this writ application and dispose of it on merit'.'

1. Ibid at 188
 479

The Allahabad High Court reiterated the principle that the

general rule, however, has an exception, namely, that a judge who

would otherwise be disqualified may act in a cause of necessity

where no other judge has jurisdiction. The court laid down in Laxmi
Chand Agrawal v The State of U.P.1 that, "The proceedings under

S.69-A of the U.P. Municipal Act can be started only by the President

of Municipal Board who alone can frame the charges and suspend the

Executive Officer of the said Board and who alone can make recommend­

ations to the State Government and submit the record. Though S.69-A

is not happily worded, yet the intention of the legislature indicates

that the enquiry must be conducted by the President alone, even tho­

ugh it is assumed that he has some bias against the said Executive

Officer. Assuming that the principles of natural justice applied not

only to trials but also to enquires wherein the enquriry officer has

no jurisdiction to pass ultimate orders but only to make recommendat­

ions to another authority, yet as S.69-A requires the President and

none else to conduct the enquiry, the doctrine of bias cannot be

stretched to theextent of rendering a statutory provision ineffect-

ive"?

Our Supreme Court has already laid down the same principle in
Hari v Dy. Commissioner, Bombay3. The Madhya Pradesh High Court held
4
the same in State of M.P. v [Link] . In 1965, the Madras High
5
Court held the same in the matter of Hayles . The other important

cases on the point are: Badri Prasad Rastogi v President,District

1. A.I.R.1962, Allahabad,117.
2. Ibid at 120.
3. A.I.R. 1956, S.C. 559, para 9.
4. A.I.R. 1957, M.P. 135.
5. A.I.R. 1955, Mad. 1.
 480

P
Board/ Mirzapur , Jagannath Prasad v State of u
* 3

lhe participation of judges on the administrative side does

not disqualify them from hearing the matter on the judicial side>

The dicta laid down in Brij Kishore's case3 was followed by the

Kerala High Court in Mary Teresa Dias v Acting Chief Justice4 and

[Link] Court in Harihar Lal v M.P. Public Service Commission,

5
Indore. In all these cases it has been clearly laid down that the

principle of natural justice is not infringed in the cases in which

the power to conduct inquiry is recommendatory only. The State Gover­

nment is not bound to accept the recommendations of enquiry officer

so the enquiry officer does not become the judge in his own cause.

The Consensual Jurisdiction:

The principle of natural justice, that no man shall be a judge

in his own cause will not apply to a contract. This rule Jhas been

laid down in Ranger v The Great Western Railway Co. and in Ellis v

Hopper , Ives and Barker v Willans 9 Jackson v Barry Railway Co.

Our Supreme Court has observed in Thawar Oas Iharulal v Union of

India10 that, "If, with that in view, Government expressly stipul­

ated and the Contractor expressly agreed that Government was not

1. A.I.R. 1952, Alld. 681.

2. A.I.R. 1954, Alld. 629. 8. (1894) 2 Ch. 478.
3. A.I.R. 1955, Orissa,183 9. (1893) 1 Ch. 238.
4. A.I.R. 1985, Kerala, 245. 10. A.I.R. 1955, S.C. 468.
5. (1986) Lab. I.C. 958.
6. (1854) 5 Hl.72.
7. (1858) 3 Hand N.766.
 481

to be liable for any loss occasioned by a consequence' as remote as

this, then that is an express term of the contract and the contra­

ctor must be tied down to it. If he cose to contract in absolute

terms that was his affairs". Lord Goddard was of the view that,

"That is simply a reference to an arbitrator, and I have never heard

of certain prohibition going to an arbitrator. Arbitration is a very

old remedy in English Law, but in all centuries that have passed

since the decisions of English Courts first began there is no trace

of an arbitrator being controlled by this court by writ of either

2
prohibition or certiorari". The Kerala High Court followed this
3
dicta in [Link] v Divisional Inspector of Schools, Coimbatore.

Mutthuswami Iyer J. remarked in Secretary of State for India in

4
Council v Augustius John Arathoon , that, "My judgement proceeds on

the ground that there was no implied condition that being interested

should take away the power to act. The result is that where there is

no contract, it is the intention of the parties that governs, and

that there is no general proposition of law that one of the contra­

cting parties should not refer a matter to the judgement of the

5
other by the reason of the other being interested". The Sindh High

Court followed this in Burma Oil Co. v Naryan Das Dayal SinghThe
7
Kerala High Court observed in State of Kerala v M.C. Joseph that,

"A clause in a contract whereby one of the parties agreed to make

good the loss sustained by the other parties immediately on receipt

1. Ibid at 472. , T . ,,
2. R. v Disputes Committee of the National Joint ouncil for the
Crafts of Dental Technicians (1958) 1 All E.R.327.
3. (1957) Ker. Lt.739.
4. (1882) T.L.R. 5, Madras 173.
5. Ibid at 180. A.I.R. 1975,Ker.189.
6. A.I.r. 1927, Sind 253.
 482

of written notice as to the amount of loss is not invalid. on the

ground that it violates principle of natural justice. No writ lies

for quashing the order calling upon the party to pay the amount of

loss, because the order is one passed in exercise of consensual

jurisdiction". The [Link] Court held the same in Parshotam Lal v

2
State.

The rule of necessity, therefore, is applied in all such

cases and when the agreements are made with the consent of the

parties, the insistence upon the observance of rule against bias

will destroy the contracting process in the society. Hence the courts

have refused to apply this rule in such cases.

The Contempt of Court Cases:

The doctrine of necessity is also applied in the contempt

cases where the judges are made the judges in their own cause. Arti­

cle 129 of the constitution of India empowers the Supreme Court to

punish the person for the contempt caused to it. Field J. observed

in the Queen v Bishop of St. Albars that, "The principle is of the

highest importance. But there is no doubt also that for public con­

venience and for the end of justice at large, there are some cases

where a man may be judge in his own cause; as in case of necessity,

for example a judge commits to prison for contempt of his court.

4
The law deems this necessary for the administration of justice",

1. Ibid at 192.
2. A.I.R. 1990, J.K. 47 at 48.
3. (1882) 9 Q.B.D. 455.
4. Ibid at 457.
 483

Article 129 of our Constitution says that, "The Supreme Court

shall be a court of record and shall have all the powers of such a
court including the power to punish for contempt of itself"J

Article 215 of the Constitution of India says that, "Every High

Court shall be a court of record and shall have all the powdrs of

such a courts including the power to punish for the contempt of

2
itslelf". Likewise, the Parliament and state legislature become the

judge in their own cause when they punish a person for the contempt

of the House. Sometimes, it so happens, that the rule of necessity

has to be revoked in court proceeings. For example when the judges

of the superior court appear as witness to a suboridinate court.

In 1968 the then Chief Justice of India Mr. Justice [Link]

and Mr. Justice [Link] of the Supreme Court gave evidence before

Shri [Link], ASstt. Session’s judge, Delhi in the case against

Manmohan Das, accused of Assulting Mr. Justice Grover with a knife

on March 13,1968 when Mr. Justice Grover was sittingwith the ^hipf

Justice on the Supreme Court Bench. The Asstt. Session Judge tfas

there to pronounce upon the weight of evidence of the Chief Justice

of India and of a judge of the Supreme Court. This should not have

been done because there was every possibility of being swayed away

by status of these high dignatories but of the necessity they had

to appear before session's judge because he had the exclusive juri­

sdiction to try the case.

1. Constitution of India, 1988, pub.p.34.

2. Ibid at 55.
 484

Statutory Authority:

There are number of statutes which authorise judges to be

judge in their own cause. The justices jurisdiction Act 1742, the

poor relief Act 1962, the Public Health Act 1875, the Salman Fish­

eries Act 1865, the Licencing Acts and other Acts empower the judges

otherwise interested to be judges in such cases. Marshall concludes

that, "It is considered that the rule to be extracted from the

above cases relating to statutory authority is this, that although

a statute may enable justices to adjudicate in a case arising under

such a statute even if they are members of a body interested in the

result of such a case, yet the overriding principle of natural just­

ice will not allow justices to adjudicate if

(a) one or more of them have personally such a substantial interest

in the result of the hearing as to make it likely that they had a

real bias in the matter; or

(b) one or more of them have been personally parties to institut­

ing the proceedings in question"^

'Jain and Jain' are of the view that, "Finally, it may be

stressed that the courts interpret statutory provisions in such a

way to exclude, as far as possible, the operation of bias from the

adjudicatory proceedings. Rules of bias certainly can be excluded

in a specific situation by law. If the law e visages that a person

or body will make a determination in spite of the presence of the

interest of such a person or authority giving rise to bias, the

1. Marshall, Of. cit., at pp.49-50.

 485

decision may bot be invalidated on that ground. However, the intent­

ion of the law should be clear to this effect. In the absence of a

clear indication, the court’s usual inference would be to regard

this as a disqualification. Even in the face of a statutory scheme

requiring a person to make the determination whatever escape routes

are available to dilute the effect of a disqualification of the

authority, they should be taken recourse to, except where this cannot

be done without paralysing the administration in other words, only

in the case of necessity the statutory scheme may have to be strictly

i
followed".

It is, clear, therefore, that the legislature can undoubdtedly

provide that a man can be judge in his own cause. The statute can

condon the disqualification. The court observed in Hari v Dy. ^ommi-

2
ssioner of Police that the legislature can make the procecutor and

judge the same person, yet in instant case, "the legislature has

provided certain safeguards aganinst tyrannical or wholly unfounded

3
order being passed by the ranks of police or the Magistrates".

The Andhra Pradesh High Court recognised the statutory provi­

sion for the excemption of the rule against bias. Mr. Justice Sesha-
4
chalapati remarked in [Link] v Cantonment Board, Secundrabad

that, "The second exemption in where the statute itself provides

that notwithstanding the presence of pecuniary or other interest the

members of a tribunal are not disqualified from participating in the

. . .1.5
*
proceeding as in several licencing acts .

1» Principles of Administrative Law, 1986,p.238.

2. A.I.R. 1956, S.C. 559.
Ibid at para 9.
4. A.I.R. 1961, Andhra Pradesh,37.
5. Ibid at 42.
 486

Die important point to be noted here is, that the statutory

exception is confined to legal bias only. In the Indian context

where constitution is the Supreme Law of the Land the statutory

provisions cannot transgress the constitutional provisions. Ofcourse

in England where Supremacy of Parliament is one of the dominant char­

acteristics of the British Constitution, the statutory provisions

disregarding the rule against bias may be valid, if intention of

the legislature is made clear by express words or necessary inferen­

ce to exclude such rules. In our ocountry, the statutory provisions

permitting a judge to be a judge in his own cause is to be constitu­

tionally construed. The reasonableness of the procedure is to be

examined from the point of view of the requirements of the fundament­

al rights under Article 14,16 and 21 of the Constitution of India.

The principles of the natural justice will have the final say, if

statute is inconsistent with them. The court has held that the stat­

utory provisions must conform to the fundamental rights, and princi­

ple of natural justice and reasonableness are the touch stone on

which the statutory provisions are to be tested. Nageswar Rao v

State of Andhra Pradesh1, H.C. Naryanappa v State of Mysore23
, Rame-
3
shwar Singh v Union of India are some of the important cases which

have held that, though statutory provision can make a man judge in

his own cause, yet that has to be conformed to the known constitu­

tional principles.

1. A.I.R. 1969, S.C. 1373.

2. A.I.R. I960, S.C. 1073.
3. A.I.R. 1962, fl.P. 372.
 487

Waiver:

Waiver is one of the oldest common law principles. According

to this, a party may waive his objections to adjudication by biased

person. Objection to the participation of a biased judge is deemed

to be waived if the party knew of disqualification arising out of

bias in the adjudicator and “acquiesced in the proceeding by fail­

ing to take objections at the earliest opportunity"? Lord Denman

C.J. observed in R. v Commissioners of Cheltenham2 that, "But it

is very advisable that no interested person should ever take part

in a decision without stating the fact of his being interested, and

enquiring whether an objection be made. A case occured in last term

respecting a rate, in which I stated that I had an interest; and I

was then requested to keep my place on the bench. We are not to be

3
understood as interfering with such a practice as that". Sir John
4
Romilly, M.R. observed in Vyvyan v Vyvyan that, "Waiver of ecqui-

escence, like election pre-supposes that the person to be bound is

fully cognizant of his rights and that being so, he neglects to

enforce them, or chooses one benefit instead of another, either,but

not both, of which he might claim"? Cockburn C.J. said in Wakefield

Local Board of Health v Westriding and Crimsby Railway Co? that,

"Although Colonel Smyth may have been interested so as to incapaci­

tate him from acting, yet as the parties were aware of the object-
7
ion and waived it, he had jurisdiction to make the order".

1. de Smith, Judicial Review of Administrative Action,1980,p.275.

2. (1841) 1 Q.B. 467.
3. Ibid at 476.
7. Ibid at 86.
4. (1861) 30 Beav. 65.
5. Ibid at 74.
6. (1865) L.R. 1 Q.B. 84.
 488

Marshall concludes that waiver may be employed if a party

who knows of an interest fails to take the necessary objection bef—

ore the merits are gone into, and if no objection is taken, lack of

knowledge of interest and absence of acquiescence be distinctly

shown to avoid presumption of waiver. The doctrine of waiver, accor­

ding to Marshall, operates only as to the interest actually jpiown

or disclosed and not to a further interest not known or disclosed.

Prof. Wade is of the view that, "The right to object to a

disqualified adjudicator may be waived, and this may be so even

where the disqualification is statutory. The court normally insists

that the objection shall be taken as soon as the party prejudiced

knows the facts which entitle him to object. If, after he or his

advisers know of the disqualification, they let the proceedings cont­

inue without protest, they are held to have waived their objection

and the determination cannot be challenged. In the past this rule

has strictly applied, so much so that the practice was to refuse

certiorari to quash the decision unless it was specifically shown

in the affidavits that the applicant had no knowledge of the disquali

fying facts at the time of the proceedings. But in one case, wherg

the litigant had appeared in person before the justices, certiorari

was granted even though he knew the facts at the trial, since he

did not know that he was entitled to raise his objection then, and

there can be no waiver of rights of which the person entitled is

unaware"? The case referred to is R. Essex Justice ex-parte Perkins?

1. Marshall, [Link].,pp. 50-52.

2. Administrative Law, 1986, pp. 482-83.
3. (1927) 2 K.B. 475.
 489

Prof-de Smith is also of the view that a party may waive his

objections to adjudication by persons subject to these disqualifica­

tions. In what circumstances, a new statutory disqualification is

capable of being waived is not entirely clear, but even if the deci­

sion is to be regarded as void/ the court may be entitled in its

discretion to take account of thedelay, acquiescence or misconduct

*
of the partyimpuigning the decision The learned author remarks that

“If a man is ’prevented by surprise fromtaking the objection at the

appropriate time/ or if he was unrepresented by counsel and did not

know of his right to object at the time' 9 the waiver may not be

inferred". Some situations may arise where an individual may not be

in a position to object on account of "fear of antagonising his

2
superiors or ignorance of full facts". Here also waiver may not be
3
presumed. The privy council held in Marsh v Marsh that/ "If a liti­

gant has himself induced/ acquiesced in or waived the irregularity

4
he cannot afterwards complain of it". Prof. M.B. Akehurst is of the

view that/ "Consequently/ the fact that rules of natural justice can

be waived does not automatically prove that breach of those rules

does not go to jurisdiction. Express statements in waiver cases

about the question whether violation of natural justice renders a

decision void or voidable/ are few and contradictory but this does

not matter/ it is clear that the rules of natural justice can be

waived/ and it is submitted that the question of waiver and the

question of nullity are mutually irrelevant

* . The decision is neither

1. de Smith/ [Link]./ p.275.

2. P.^reeramulU/V.A.P.# *
A.I#R 1970/ • 114
3. (1945) A.C. 271.
4. Ibid at 285.
 490

void nor voidable, it is unimpeccable"?

D«M. Gordon holds the .view that, "More ever it has always been
held that objection of a tribunal's interest may be waived"? However,

in another Article, the learned author cautiones the misue of langu­

age. He does not agree with the view that only a total want of juri­

sdiction cannot be waived. He is of the view that jurisdiction must

be an absolute conception. It must exist in all perfection, or not

at all and concludes that, "Waiver cannot supply a constituent that

is missing; for waiver is merely an election not to object at the

right time for objecting to what can be cured, i.e. to what makes

proceeding voidable, waiver supplies nothing; it is merely the lett

3
ing slip of an opportunity". Akehurst concludes that,"The courts

make an imprecise distinction between a total want of jurisdiction

which cannot be waived, an contingent defects of jurisdiction,which

can, but it is certainly applicable to the rule nemo judex in causa

sua"f

Professor Wade opines that, "The operation of those rules is

always subject to any effective waiver, and the principle of waiver

ought surely to be implied as a part and parcel Jof the rules". The

important point to be noted here is that the waiver doctrine does

not empower the litigants to get their cases tried by the tribunal

which has no jurisdiction, in such cases the act becomes void. Thus,

1. Void or Voidable Natural Justice and Unnatural Meanings,1968,

31, The Modern Law Review, 138 at 149-50.
2. 42 L.Q.R. p. 523.
3. L.Q.R. 193, 557 at 575.
4. (1968) 31, M.L.R. 138 at 145-46.
5. Unlawful Administrative Action.- Void or Voldable,84 L.Q.R.95 at 1
 491

Lord Reid observed that, '... it is a fundamental principle that no

consent can confer on a court or tribunal with limited statutory

jurisdiction any power to act beyond that jurisdiction, or can stop

the consenting party from subsequently maintaining that such court

or tribunal has acted without jurisdiction"^

Professor Wade concludes that, "If the complainant waives

objection to a disqualifying interest in a member of a tribunal,it

seems wrong to say that there has been a breach of natural justice

at all. The whole question is what is the condition to be implied in

the statutes. There is surely no reason for implying an absolute

condition such as, 'no disqualified person shall adjudicate'. It would

be more reasonable to imply qualified condition, such as no disquali­

fied person shall adjudicate unless this is acceptable to the person

*
concerned Waiver, therefore, precludes a person from raising the

objection about the person who participates in the adjudicating

process of his being biased as a later stage, if he fails to do so as

the first opportunity. It does not validate the action which is prima

facie invalid.1

Indian Position;

Our Supreme Court followed the common law principle of waiver

in Manak Lal v Dr. Premchand? T he court observed there that, "The

alleged bias in a member of the tribunal does not render the proceed­

ings invalid, if it is shown that the objection against the presence

1. Essex Incorporated C.C. Union v Essex C.C. (1963) A.C. 808 at
820-21.
2. 84 L.Q.R. 109.
3. A.I.R. 1957, S.C. 425.
 492

of the member in question had not been taken by the party even

though the party knew about the circumstances giving rise to the

allegations about the alleged bias and was aware of his right to

challenge the presence of the member in the tribunal. It is true

that waiver cannot always and in every case be inferred merely from

the failure of the party to take the objection. Waiver can be infer­

red only, if and after it is shown that the party knew about the

relevant facts and was aware of his right to take the objection in
1
question".

The question of waiver was raised and recognised in second

2
Gullapalli case. In [Link] case Supreme Court disallowed the argument

of bias on the part of the Chief Minister being raised in as much as

the appellant had not raised it in the first G' llapalli? Various

High Courts have recognised the rule of waiver. Following are some

of the important cases. Shreekant Upadhyaya v Union of India^ Bal-

5
kishen Chaturvdi v The Chief Secretary , Wameshwar Singh v Union of
6 7
India , C.K. Gowda v Mysore Revenue Appellate tribunal , Manarghat
8 9
Union Motor Services v R.T.O. , [Link] v Bombay State , Sayyad
Hasan Ali v State of Mysore"1"?

11
In 1969 when the Bank nationalisation case was going on,

Smt. Subhadra Joshi, M.P. filed an application on 24.9.1969 seeking

appropriate orders of the court on whether judges having shares in

1. Ibid at para 8.
2. Gullapalli Nageshwar Rao v State of Andhra Pradesh,A.I.R.1959,
S.C. 1376.
3. A.I.R. 1959, S.C. 308.
4. A.I.R. 1963, Pat. 38. 8 A.I.R. 1953, Mad. 59.
5. A.I.R. 1963, M.P. 216. 9 A.I.R. 1954, Bom. 202.
6. A.I.R. 1962, M.P. 372. 10 A.I.R. 1965, Mys. 283.
7 . A.I.R. 1965, Mys. 41. 11 R.C .Cooper v Union of India(1970)
1 S.C.C. 248
 493

the nationalised bank could hear the writ petition of [Link].

Earlier, during the hearing of preliminary arguments on the writ

petition, some of the honourable judges had observed that they were

holding shares in some of the nationalised banks and enquired wheth­

er the parties had any objection to the constitution of the bench.

The then Attorn-ey General, Niren be, submitted that the Government

had no objection to hearing of thewrit petition by those judges.

Counsel for the other parties also assured the court that they too

had no objection to the constitution of the bench. The waiver on

the part of Union Government and the other parties enabled the

judges of the bench to hear the case even though they had a pecuniary

interest.

However, the judges should have dissociated themselves from

the Bench. Their non-participation could not .have resulted into the

failure of justice because under article 128 of the constitution the

Chief Justice has been empowered to take the services of the retired

judges of the High and Supreme Court on an ad hoc basis for quorum,

of course, with the previous consent of the President. This could

have also saved them from being in an embarrassing position. When

the proceedings of the Shah Commission were going on, the late Prime

Minister Mrs. Indira Gandhi, pointed it out that Mr. Shah had a

pecuniary interest in the bank nationalisation case and still he

chose to participate. This situation should have not come at all.

The judicial ethic must be maintained at all cost; lest judicial

administration loses, its potentiality.

 494

Waiver in U.S.A*

The rule of waiver is stated in U.S.A, in the following terms;

"Under statutes which specify the causes of disqualification, but do

not forbid a disqualified judge to act, the disqualification of a

judge is not generally regarded as jurisdictional, and it may be

waived either expressly or impliedly by the parties"1 The import-

ant cases that have stated this rule are: Coltrane v Templeton ,
Re Eatonton Electric Co.\ ReEquitable Trust Co/, Pettigrew v Wash-

5 6 *7
ington County , Nicholls v Barrick , Stevens v Hall , Smythe v
q 9 10 11
Scott , Pace v Reed , White v Jouett1 , Nimocks v Mcgehee , Warren
v Glynn12, Jeffers v Jeffers13, Bolan v Church14.

It has been laid down there that in the absence of peremptory-

provisions in a statute, the question of interest or bias of judge

is regarded as a private matter, of concern only to the party to

the action, who may give a disqualified [Link] by consent

or by waiver express are implied. They may do so by failing to raise

the objection at the trial when the opposite party has full knowle­

dge of the existence of the disqualification.

1. 5 ALR Annotation, 1588 at 1589.

2. 106, FED 370 (1901).
3. (1903) 120 FED, 1010.
4. (1916) 232, FED, 836.
5. (1884) 43, ARK, 33.
6. (1900) 27, COLO,432.
7. (1902) 8 IDAHO 549.
8. (1886) 106, IND 245.
13. (1911) 89, SC, 244.
9. (1910) 138, KEY, 605.
14. (1875) 1, WYO, 187.
10. (1912) 147, KEY, 197.
11. (1910) 97, MISS. 321.
12. (1853) 37, NH, 340.
 495

However, the important point to be noted is that if the

participation of the interested judges so affects the jurisdiction

of the court as to make its judgement void, the invalidity cannot

be cured even by consent by the party. The failure to make reason­

able objection at trial stage waives mere irregularity. It was

observed in NAT Bank v Mcguire12
4 that,
3 "If not taken before the

decision is rendered, it will avail in the appellate court, and

the suit may be dismissed on that ground. The judge acting in such

case is not simply acting irregularily, but he is acting without

jurisdiction". Again in State v Ham it was laid down that, "It is

against the policy of the law to permit a judge with interest or

within forbidden degree of relationship to sit in the trial of the

cause, although the party may consent thereto"^ The Forest Coal
5
Co. v Doolittle declared that the disqualification of a judge can­

not be waived by implication, and when final judgement is entered,

it will be reversed on appeal, if the objection be raised. The

court observed that, "There is no reason for any distinction betw­

een the cases in which a statute declares that an interested judge

shall not sit and those inwhich he is inhibited by the common law

from sitting. A statute is of no higher dignity, nor any more effi­

cacious, than the common law, and no stature had more empathetically

an unequivocally negatived the power of a judge to sit in his own

cause than does the maxim of -the common law, nemo debet esse judex

in propria causa"
1. (1889) 12 [Link] 226. ~
2. Ibid at 226. 5 (1903) 54 [Link]. 210.
3. (1910) 24 S.D. 639. 6< Ibid at 210.
4. Ibid at 639.
 496

This must be made clear that the rule of waiver cannot be

allowed to be misused. It must be applied at proper time indicated

by the statute. If a party to the suit waits till the result comes

and then files an objection finding that the judgement is against

him, he clearly misuses the right to invoke the rule of waiver.

Thus, in U.S.A, the disqualification of the judges may waived

either implidely or expressly. It was observed in Bryant v State ,

"Our court has construed those provisions of the constitution in

several cases, holding that the disqualification of the justice of

the peace or judge could be waived, either expressly or by failure

of the complaining party in due time to object to such disqualifica­

tion. A failure to make such objection within that time is tantamount

to waiver of the disqualification of the judge or justice of the

ii . 2
peace"

The Effect of the Breach of the Rule:

The effect of the breach of the rule against bias is that it

renders the decision void. Lord Esher laid down this dicta in Allins—
on3, case that participation of disqualified person certainly rendered

the decision wholly void. The important cases that have laid down

that the nonobservance of the rule against bias makes the decision
4 i. 5
void are; R. v Cheltenham Commissioner’s , Cooper v ilson t R
* v
•j

Haddington6, Vassiliades v Vassiliades , Ladies of Leered Heart of

1. (1927) 146 MISS, 533.

2. Ibid at 533.
3. (1894) 1 Q.B., 750.
4. (1841) 1 Q.B. 467.
5. (1937) 2 K.B. 309.
6. (1947) All E.R.148.
7. (1945) A.I.R. 38.
 497

Jesus v Armstrong s Point Association^", Oscroft v Benabo^, Anisminic

Ltd. v Foreign Compensation Commission3.

Professor Wade is of the view that the nonobservance of the

rule against bias makes the decision void. He enumerates five grounds

for that;

1) If the court declares that the decision is void and a

nullity then that declaration is effective as far as the nature of

the remedies is concerned.

2) If the decision is termed void, it may be ignored and the

case is again sent to the authorities to consider it a fresh.

3) I'he court will quash for bias even where there is a statu­

tory 'No Certiorari' clause, but such a clause can be ignored only

where the decision is ultra-vires and void.

4) It is well established corollary of the principle of ultra-

vires that evidence out side the record can be received only to show

want of [Link] bias will ofcourse not appear on the

record, it can be proved only on the hypothesis that it destroys

jurisdiction altogether.

5) Failure to give a fair hearing undoubtedly goes to juris­

diction, and it would be anamolous, if the same were not true of

4
bias.

1. (1961) 29, DLR (2nd) 373.

2. (1967) 1 W.L.R. 1087.
3. (1969) 2 A.C. 147.
4. Administrative Law, 1988, p. 494.
 498

Professor Wade further remarks that, "The logic of the situ­

ation is in no way weakened by the fact that the right to object on

the ground of bias can be waived® This has sometime been supposed

to show that bias must render the decision voidable® But this foll­

ows only if ’void1 is given the absolute meaning and not relative

meaning which it ought to bear. Waiver is only one of many factors

which may induce the court to refuse relief, it may do so in its

discretion for many reasons® However, void the decision in question,

and than the decision must be accepted as valid". It was observed

by Channel J. in R. v Williams Exp. Phillips that the right to

object on the ground of bias could be lost by waiver no matter wheth-

3
er the proceedings are void or voidable." Prof. Wade concludes that

this question is merely irrelevant and writes that, "There is no

reason why the rule of law which says that biased decision is void

should not itself contain the qualification that it operates only if

4
the right to object is not waived".

Diplock L.J. was of the view, while analysing the Anisminik

case that "Bias is a defect which goes to jurisdiction and there­

fore, impeachable despite a 'no-certiorari' clause"^ In R. v Natbell

Liquors Ltd., Lord Summner & Lord Wright were of the view that bias

meant that, "The proceeding were without jurisdiction or coramnonju-

dice, so that the decision was anullity"^ Previously [Link] Smith

1. Ibid at 495.
2. (1914) 1 K.B. 608.
3. Ibid at 608.
4. Supra Note 2 at 495.
5. (1967) 3 W.L.R. 382 at 395.
6. (1922) 2 A.C. 128 at 160.
 499

was of the view that decision by the biased tribunal renders it

voidable only?- He was influencedby the opinion of Parke B. which

he delivered in Dimes case where he said that Lord Chancellor's

decision was voidable only. Later on Prof, de Smith seems to have

changed his view because of the recent propositions made by the

courts. He writes that, "-There is some authority for the view that

adjudication by one who is disqualified at common law for interest

or likelihood of bias makes the proceeding voidable, not void these

propostions have become more difficult to sustain with the accumula­

tion of dicta to the effect that, for various purposes, decisions

contrary to natural justice are to be treated as void. Most of the

relevant cases have been concerned with the effects of non-complia­

nce with the audi alteram partem rule, but it would be incongruous

to adopt a different analysis for the rule against interest and

likelihood of Dias It is thought that the courts will not

normally allow an original decision to stand that was vitiated by

3
bias". Thus the learned Professor concludes that the administrative

decisions made in bfeachof rule against bias is void.

Those who hold that decision in the breach of rule against

bias does not render it void, but it makes only voidable, rely on

the fact that until the decision is quashed, it cannot be impeached

collaterally because an application for mandamus presupposes the

existence of voidrness, and this is a form of collateral attack.

1. Judicial Review of Administrative Action, 1st Edn.p.102.

2. (1852) 3 HLC. 759.
3. Judicial Review of Administrative Action, 4th Edn.1980,pp.273-74.
 500

Collateral proceedings may take many forms. One of the most obvious

variety is, Enforcement proceedings, where the person to whom admi­

nistrative decision is addressed, pleads its irregularity by way of

defence in proceedings where he sued or prosecuted for disregarding

the decision 1

The House of Lords in Lazard Brothers and Co.^ held that the

voidable ^judgement is insufficient to justify proceedings. The other

cases to this effect are; Fry v Morre3, Wilding v Bean4, wiseman v

Wiseman.

D.M. Gordon has pointed out that the decision of an interested

tribunal is not void but voidable only. He has quoted Dimes case ,
8 9
Wiles v Russel , R. v Galway and said that there are three degrees'

of validity which judicial proceedings may possess viz. voidness,

voidability and impeachability. The distinction between first two is

that the former represents a state of nothingness from which nonth­

ing can arise and which consequently can never acquire any different

status. The second denotes something liable to be reduced to nothing

ness but which is also capable of acquiring impeachabilitye.g. by

failure to raise the objection at the proper time by expiration o f

the time for appearing or moving to court by release of error.

1. M.B. Akehurst Void or Voidable? Natural Justice and Unnatural

Meangings, 31 Modern Law Review, 138.
2. (1933) A.C. 289 at 306-307.
3. (1889) 23 Q.B.D. 395.
4. (1891) 1 Q.B. 100.
5. (1953) C.A. 79. ,
6. Certiorari and the Revival of Brror infact (1926) 42 L.Q.R. 521.
at 523.
7. (1852) 3 H.L.C. 759. 9. (1906) 2 I.R. 499.
8. (1866) L.R. IC 722. 10. 42 L.Q.R. 526.
 501

The learned author again and again insists upon the fact that#

"Failure to observe the proper procedure has again and again been
..,,1
held Ito be only error, and to make adjudications voidable, jnot voir .

In support of his thesis he quotes the following cases; Marshalsea

case2, exparte Morgan-5, exparte Story4, AcRerley v Parkinson , John-

son v Cook , ReBaines?, Bott v Ackroyd0, ”Re v London (Mayor) 9 R- v

Sheffield Railway Co. , Smart v Wollf44, Groenvelt v Burwell ,

13
R. v Oldhall (Manorlord).

Patteson J. thus, observed in Winsor v s^nford^4 that "if they

have jurisdiction, if does not cease because they take a wrong

15
course in trying".

The controversy with regard to void and voidable should not

be given much importance. It must be accepted without any reservat­

ion that the breach of rule against bias must render the decision

void. It is expected that from the judges to, 'preserve a judicial

temper and perform the duties conscientiously with a proper feeling

of responsibility". If a tribunal offends the principles of natural

justice, it must be regarded as no decision at all. Prof. Wade does

1. Ihe Observance of Law as a Condition of Jurisdiction L.R.

386 at 395.
2. (1912) 10 Rep. 68b at 76a.
3. (1820) 2 Chit. 250.
4. (1852) 8 Lxch. 195.
5. (1815) 3 M& S, 411 at 425.
6. (1872) 17 S.J. 30. 13. (1817) 22 Lt. 786.
7. (1840) Cr.& Ph.31. 14. (1848) 12 Q.B. 603.
8. (1859) 28 L.J.M.C. 207. 15. Ibid at 608.
9. (1893) 69,L.T. 721.
16. Per Lord Moulton in Local Govern
10. (1839) 11 A.& E. 194. ment Board v Arlidge (1915)
11. (1780) 3 TR 323 at 347. A C 120 at 150.
12. (1699) 1 [Link].454 at 472
 502

not agree with the view that the decision in the breach of the rules

of natural justice should be termed as voidable and not void. The

learned Professor says that, "Now however, the courts profess to

have discovered a hybrid creature; a voidable administrative act.

This is a new animal in the legal bestiary, and its pedigree is

altogether questionable. By pursuing it on a free rein, judges have

been able to propound new doctrine which would make far-reaching

changes in the law. These changes, it will be submitted would not

only substitute new and worse rules for old and better rules on a

number of matter; they would also gravely weaken the principle of

legality which is the sheet-anchor of the citizen's right to resist

unlawful acts of government"]’ He suggests that the dicta of Parke B.
2
in dimes case holding the Chancellor's decision voidable and then

adding that in many cases where the court of Kingsbench had quashed

the order of Magistrates on account of interest, non of the orders

quashed was absolutely void, but voidable, should be, "retired to

the museum of antiquities"?

With regard to the term 'void and voidable' the learned prof­

essor says that, "The terra 'voidable' has been transplanted from

the law of contract, where it has an intelligible part to play,into

administrative law, where it has none.

The learned author concludes that, Both branches of the

principles of natural justice conform to the above analysis. The

1. Unlawful Administrative Action, Void or Voidable,

83 L.Q.R. 499.
2. (1852) HL cases, 759.
3. Supra Note 1, Part. II. 84 L.Q.R. 95 at 108.
 503

courts have always held that failure to give a fair hearing makes

the decision void, not voidable. The same is true as to decisions

vitiated by interest. Decisions about rights of appeal from the sup­

erior courts have no relevance to the law of judicial review of

statutory authorities by certiorari and declaratory judgement. Nor

is the la® as to waiver inconsistent"]- And again, "The question 'void

or viodably'? which makes sense when applied to certain kinds of

contract, does not make sense when applied to unlawful acts of public

authorites. Such acts are either lawful and valid or unlawful and

void. That is why "voidable" has never played a part in administrat-

2
ive law, and should play no part now".

In fact, the whole controversy with regard to void and voidable

rests upon the traditional rule laid down by Sir Edward Coke in 'i'he
3
Marshalsea case wherein, the learned Chief Justice observed that a

judgement is void only if made without jurisdiction, other defects

merely render the judgement voidable. However, as [Link] points

out, Care must be used in evaluating the authority. The learned

author says that, "Even in the early days, when error infact and the

principles in the Marshalsea case were well understood, it is possi­

ble to find dicta that breach of the rules of the natural justice

will render a decision void. The explanation is the word 'void' has

often been loosely used as a synonym for defective thus, including

the concept of 'voidable' terminology had become more precise in

1. 84 LQR 115.
2. 83 LQR 526.
3. (1612) 10 Co. Rep. 68b.
 504

modern cases, the judges are still sometime guilty of lapses, judi­

cial interpretation of words 'absolutely void' in the INFAnJtS RELIEF

ACTS 1874 a prime example. If words like ’void', 'voidable' and

'nullity can be used loosely, then a fortiory, no realiance can

be placed on more ambiguous words such as 'bad', 'invalid', 'defect­

ive' or 'irregular'! The learned author concludes that, "There is

no simple answer to the question void or voidable. Breach of the

nemo judex rule is perhaps less likely to go to jurisdiction than

breach of the audi alteram partem principle. But this conclusion

rests largely on Dimes v Grand Junction Canal and a few other cases

decided shortly thereafter, which have been accorded exagerated

action by subsequent commentators, and which are not always easy to

reconcile with more modern cases going the other ways.

It is necessary to look to at different contexts, a decision

may be void for some purposes but voidable for others. Some people

may object that this is attributing a very unnatural meaning to the

words void and voidable, but English courts have never allowed the

tyranny or words to stand in the way of doing justice. The very fact

that a void decision may be appealed against shows that the nullity

theory has not been pushed to its logical conclusion. Often the

courts openly manipulate the concepts of 'void and voidable' in

13
order to protect the citizen• Thus, a conviction made in violation

of the rules of natural justice will be quashed as void, notwith­

standing the .'existence of a ’no certiorari clause, but a similar

violation renders an acquittal merely viodable •

[Link]>, p. 234.
2. (1852) 3 HCL 759.
 505

At the moment, a decision vitiated by breach of natural justice

may be void for some purposes and voidable for others, but for most
of 1
purposes the distinction^_void and voidable decision is irrelevant12
3•

It can be safely concluded that breach of the rule against

bias is void and, "What is void is nothing, and it is nothing for

all the worid, if jurisdiction is absent, it is absent for everyone

a like"?

It has been laid down in Halsbury's Laws of England that,"The

effect of breach of the rule (i.e., rule of natural justice) is to

render an act or decision void is indeed supported by a number of

judicial pronouncements, and by other consequences which tend to

assimilate breach of the rule to an excess of jurisdiction.... on

the other hand, in some cases it has been held that non-compliance

with the rule is immaterial if the party claiming to be aggrieved

has not sustained any significant detriment; and it is not clear

that these cases turn merely on thefact that the relief sought was

discretionary. If these decisions are not fully representative or

correct, it would seem that a decision tainted with breach of the

rule is not void but voidable, or at least not null or void for all

purposes. On one view, such a decision is merely voidable against

third parties but void abnitio in relation to the person aggrieved

when successfully impunged by him; this view has been partly eclip—
3
sed by dicta characterising the decision as void .

1. [Link]., pp. 150-52. .

2. [Link], The Observance of Law as a Condition of Jurisdiction,
hQR 1931, 386 at 389.
3. 4th [Link].l, p.97, para 77.
 506

When we say that the breach of rule against bias is void, we

do not use the word in its absolute sense. We use here the word in

its relative sense. Thus, Megarry J. says that, decision reached

by a tribunal wholly out side its jurisdiction and in complete defi­

ance of natural justice is about as void as any thing can be; but

if nobody who is entitled to challenge or question it chooses to do

so it remains in being"

Professor de Smith is also of the view that, "^oidness is

itself a relative concept". Prof. Wade opines the same and says that,

"Voidness is relative, not absolute. The key is not absolutism but

3
relativity".

Position in India:

Professor [Link] is of the view that, "In India, by and

large, the Indian case law has been free from the void/voidable

controversy and the judicial thinking has been that a quasi judicial
4
order made without following natural justice is void and a nullity".
5
Our Supreme Court has observed in Vishwanatham v Abdul Wajid that,

"The court rendering the judgement must observe the minimum require­

ment of natural justice. It must be composed of impartial persons,

acting fairly, without bias in good faith a judgement which is

the result of bias or want of impartiality on the part of a judge

. , . 6
will be regarded as a nullity and the trial quorum non judice.
1. Hounslow LBC v Twickenfa Mgd Ltd. (1971) 1 CS 233 at 259.
2. Of. cit., 152.
3. 90 LQR 155 (1974).
4. Principles of Administrative Law, IVth bdn.1986,p.302.
5. A.I.R. 1963, S.C. 1
6. Ibid at 25.
 507

The Supreme Court has adopted the same line of reasoning in Collect­

or of Monghyr v Keshav Prasad and Orissa v Binapani Dei? The M»P•

High court has held so in Suresh v state? The Rajasthan High Court
4
in Jwala Prasad v State , The Allahabad High Court in Shila Devi v
5
Executive Engineer, The Kerala High Court in President/ The Common

Wealth Cooperative Society v Joint Registrar/ Cooperative Societies.

The Calcutta High Court has held in Jabalpur Electric Supply Co. v
7
[Link] Board that/ the violation of the rule of natural

justice renders the decision void and that act is a nullity in law.
p
The same has been held in Sirajuddin and Co. v Orissa, Laxmi Dhar v
■ 9
Orissa.

Thus Dr. Jain concludes that, "There is no need in India to

distinguish between void and voidable orders for the purposes of

locus standi to challenge the same as such a hypothesis has been

questioned in England itself"]-0 Dr. Jain is supported by the opinion

of Prof, de Smith that, "A distinction in the rules governing locus

standi to impugn void and voidable decisions is no adequately supp­

orted by the case law"]'1 Our Supreme Court has again held in M/s.
12
[Link] & [Link] v Settlement Commissioner (I.T.& W.T)

that the act in violation of natural justice is void and nullity in

law. The court observed that, "In exercise of our power of judicial

review of the decision of the settlement commission we are concerned

with the legality of procedure followed and not with validity of the

7. A.I.R. 1974, Cal. 309.

1. A.I.R. 1962, S.C. 1674.
8. A.I.R. 1974, Cal. 296.
2. A.I.R. 1967, S.C. 1269.
9. A.I.R. 1974, Ori. 127.
3. A.I.R. 1970, M.P. 154.
10. [Link]., 303.
4. A.I.R. 1973, Raj . 187.
11. [Link]., 241
5. A.I.R. 1971, All. 343.
12. [Link]. 1989, S.C.1038.
6. A.I.R. 1971, Ker. 34.
 508

order. Judicial review is concerned not with the decision but with
the decision making process"*

Thus, violation of natural Ijustice is a matter of legality of

the procedure and if legality is not maintained the action under

such illegal procedure must be void having no force of law. H.M.

Seervai is of the view that, "An order passed in violation of the

principles of the natural justice could be contrary to the act and

2
therefore, ultra vires'.' The learned author further says that, "How­

ever, the above conclusion requires further consideration. To say

that an order, passed in violation of the principles of natural

justice is void or a nullity requires clarification. If for example,

Ridge had not challenged his dismissal by an action, then, although

the order was void or a nullity, it would have had full legal effect

as if it were a valid order, secondly, in certain situations, a void

order has immediate effect on the rights of a person or on his right

to property, so that unless the order is set aside, the injury suffer­

ed cannot be remedied. A judge who convicts a person without jurisdi­

ction, passes an order which is void, but the accused who has been

sent to prison must take proceedings to set aside the order,if he

is to regain his liberty. Similarly, a race horse owner prevented

from running his horse on therace course byan order passed against

him in violation of the principles of natural justice must take nece­

ssary steps to set aside the order, if the injury caused by the order

is not to be effective. The order is voidable in the sense that if it

1. Ibid at 1042.
2. Constitutional Law of India, [Link],1984,at 1281.
 509

is not challenged it will remain as effective as a valid order. But

if the order is challenged, then it is voidable in the special sense

that the verdict of the court is awaited. If the court finds . .that

the order violates the principles of natural justice then, on that

finding being made, the order is void"^

Dr. A.T. Markose opines that, "Briefly stated in the recent

cases where, for violation of natural ^justice or for error of law

or even for wrong findings of fact, the court had to interfere beca­

use of the enormity of the defect in such case, the existence of

statutory exclusion of judicial review compelled it to categorise

the defect as one going to jurisdiction. But it is submitted that

it was not necessary to say that violation of natural justice made

a decision void or errors of interpretation of the governing statu­

te, simpliciter, made the decision a nullity. Nor is that necessary

to drop the category of voidable administrative action in order to

, 2
make cases like Ridge v Baldwin and Anisminic acceptable. As has

been discussed above, they are all clear cases of abuse of power or

discretion. Being cases of detournement de potivoin the resulting

decisions were void and statutory exclusion of judicial review could

3
not have afforded any protection".

What the learned Professor emphasises is that abuse of power

makes a decision void. The violation of rules of natural justice

should also be evaluated in the context of the abuse of power and

discretion. Bowen L.J. very rightly observed in Gardener v Jay that,

1. Constitutional Law of India, [Link],1984,p.1281.

2. (1964) AC 40, 1969, 2 WLR 163.
3. Public Law Some Aspects,1971,pp. 62-63.
4. (1885) 29, CHD 50.
 510

“Discretion like other judicial discretion must be exercised accord­

ing to common sense and according to justice and if there is a mis­

carriage in the exercise of it, it will be reviewed”Thus, unjust

exercise of discretion gives a right to the court to interfere and

it is upto the court to decide whether the defect makes the decision

void or not. Really speaking the abuse of power or abuse of discre­

tion results into breach of natural justice. That is why it has been

again and again emphasized by the court that, "An extensive power

is confided to the justices in their capacity as justices to be exer­

cised judicially, and 'discretion' means when it is said that some­

thing is to be done within the discretion of the authorities that

something is to be done according to the rules of reasons and justice,

not according to the private opinion, according to the law and not

humour. It is to be not arbitrary, vague and fanciful, but legal and

regular. And must be exercised within the limit, to which an honest

man competent to the discharge of the office ought to confine him -

self"2

3
Again it was observed in Rook's case that, "In the court of

Common Pleas, it was observed, for discretion is a science or under­

standing to discern between falsity and truth, between wrong and

right , between shadows and substance, between equity and colourable

glosses and pretence, and not to do according to their wills and

private affections, for as one saith, TALIS DISCRETIO DISCRETION EM

CONFUNDIT".4

1. Ibid at 58.
2. Susannahshrp v Wakefield (1891) A.C. 173 at 178 per Lord
Halseburry.
3. 5 Rep.100 (77 ER) 209.
4. Ibid at 2.10.
 511

Chief Justice Lord Kenyon observed in Gilson v Kastall^ case

that, it must be remembered that the discretion to be exercised

on such an occasion is not a wild but a sound discretion and to be

confined within those limits within which an honest man, competent

to discharge the duty of his office, ought to confine to himself,

and that discretion will be best exercised by not deviating from

the rules laid down by our predecessors, for the practice of the
court forms the law of the court”? Lord Selborne observed in Macbeth

v Ashley , 11 It is obvious that such discretion as they have, is not

an arbitrary discretion to define any locality they please, but

they must be such localities as they consider, in the honest and

bonafide exercise of their own judgement, to require difference to

4
be made".

5
in Keighley's case it was observed that the words m the

Act 23 H.8.C.S. (according to your wisdom and discretion) are to be

intended and interpreted according to law and justice, for ever

judge or commissioner ought to have "LUOS SALES, VIZ. SALEM SAPIENT-

ICE, NESITIN CIPIDUS AND SALEM CONSCIENTICE NESIT DIABOLUS. also

discretion as it is well described, is scireperlegem quid setjustum'.'6

Thus, we see that the discretion of the judges an-.’ adjudicating

authorities is discretion of an honest, reasonable and impartial

man. If that discretion is abused in an arbitrary and partial manner,

it naturally violates the principle of natural justice and that

1. 4 TR 757 (100 ER) 1283.

2. Ibid at 1286.
3. 2 HLC 360,
4* Ibid .
5. 10 COREP. 139 (77 ER 1136).
6. Ibid at 1138.
 512

violation makes the abuse of discretion void having no legal effect

at all. It has been rightly observed that, ’’The discretion is Faculty

of deciding or determining in accordance with circumstances and what

seems just, fair, right, equitable and reasonable in those circum­

stances. Rules of law frequently vest in a judge the power or duty

to exercise his discretion in certain circumstances, sometimes if

he finds certain requisites satisfied, and some times a discretion

within stated limits only'.

The breach of natural justice must render the decision void.

We must not allow the undesirable controversy in the field of admin­

istrative law with regard to void and voidable decision to last for

an indefinite period. The courts must not fail to condemn the words

voidable in this field otherwise there will not be an end of such

conceptual chaos. And as Prof. Wade calls it, "There will be conce-

ptual chaos to reign”. The learned Professor concludes that “The

court must therefore, stretch the doctrine of ultravires. Therefore,

bad faith, breach of natural justice, irrelevant considerations and

even now apparently 'no evidence’ must somehow be fitted into this

bed of procrustes. For unless the court can show that the order is

unauthorised by Parliament, i.e. out side jurisdiction, it has no

constitutional warrant to intervene. If the courts partcompany

with those principles they may be asked how they can justify their
. 3
intervention”.
(

1. The Oxford Companion to Law, Walker, 1980,p.363.

2. 93 L.Q.R. 8 at 11.
3. 93 L.Q.R. 8 at 11.
 513

Mr. Justice Krishna Iyer states that, "The test of ex facie

illegality or bad on its face or in Lord Radcliffe's words 'it bears

no brand, of invalidity on its forehead', is also unworkable in the

work—a-day world of law. Error of jurisdiction and error within

jurisdiction, have been suggested as a means to Gut the Gordian Knot.

Many great writers have dealt with the subject but few have offered

a fair answer to the question, is a determination a determination

at all when made without a statutory hearing and when is it void

and to what extent? Decisions are legion where the conditions for

the exercise of power have been contravened and the order treated

as void. And when there is excess or error of jurisdiction the end

product is semblance, not an actual order, although where the error

is within jurisdiction it is good, particularly when a finality

clause exists. The order becomes 'infallible in error', a peculiar

legal phenomenon like the hybrid beast of voidable, voidness for

which, according to a learned author, Lord Denning is largely resp­

onsible. The legal chaos in this branch of jurisprudence should be

avoided by evolving simpler concepts which work in practice in Indian

conditions. Legislation, rather than judicial law-making will meet

the needs more adequately. The only safe course, until simple and

sure light is shed from a legislative source, is to treat as void

and ineffectual to bind parties, from the beginning, any order made

without hearing the party affected if the injury is to a constitut­

ionally guaranteed right. In other cases, the order in violation of

natural justice is void in the limited sense of being liable to be

, x 111
avoided by Court with retroactive force •

!• Nawab Khan v State of Gujarat,1974#S»C> 1471.

 514

Thus, administrative action which infringes the rules of

natural justice is null and void. Since the decision of Sir Nicholas

Bacon s case this opinion has been reinforced by the decisions of

the courts. Thus, thedecision made in violation of the rule is void

but voidness is not used in absolute sense, it is used in relative

term. The court must not allow the linguistics to determine legal

acts. The misuse of the language should not go to the extent where

conceptual chaos is given more role to play in administrative law.

Credit goes to the efficiency of the courts for taking prag­

matic approach, rather than the conceptual one, with regard to the

breach of the natural [Link] ultimate relief to be given to

the party has taken the new forms ordinarily non-observance of the

rule of natural justice results in quashing the administrative order

and relegating the party to his original position but it is not poss­

ible always to do so. Hence, the courts have allowed adequate compen­

sation, if it is not possible to restore the affected person his

original position.

1. (1563) 2 Dyer 220b

 515

THE SECOND RULE OF NATURAL JUSTICE

Audi Alteram Partem or Audiatur Et Altera Pars;

This is the second rule of natural justice. It means that ’hear

the other side f no man shall be condemned unheard! Prof. Allen says

that, ’’The second principle audi alteram partem means that both sides

of a case must be heard before it can be decided, that they must both

be heard in the same process and under the same conditions. The

elementary principle is over looked when an individual is condemned,

or otherwise deminified, without being informed of the charges again-

st him or being given the opportunity of rebutting it.

The audi alteram partem rule is one of the twin pillars of the

concept of natural justice supporting it. ‘i’his principle of natural

justice has two aspects, no party ought to be condemned unheard and

if a person's right to be heard is to be a reality he must know in

good time the case he has to meet and if witnesses are heard against

him he must have the right 'both to cross-examine them as well as to

2
call his own witness'.

This second principle of natural justice is the more far reach­

ing of the principles of natural justice, 'since it can embrace almost

every question of fair procedure, or due process, and its implication

can be worked out in great detail. It is also broad enough to include

the rule against bias, since a fair hearing must be unbiased hearing?

1. C.K. Allen, Law and Orders, 3rd Ed., 1965, p.293.

2. [Link], [Link]., 218
*
[Link],
3. [Link]., 441, 1988 edn.
 516

The rule audi alteram partem thus, clearly states, that no

one is to be condemned, punished or deprived of his property in any

adjudicating proceeding, unless he is given an opportunity of being

heard. ”It stems from the need to include the parties in the process'

of decision making, and in large measure is meant to compensate for

the necessarily non-concensual aspect of legal adjudication. Since,

I cannot be a judge, in my own cause I should atleast be allowed to

be its advocate11. Thus, the audi alteram partem rule is exception to

the rule against bias in a sense that while in rule against bias in a

sense that while in rule against bias no one can be a judge in his

own cause, in audi alteram partem rule, a man can be advocate in his

own cause.

In the words of poet Seneca ’He who decides any thing with the

other side unheard, may have reached a just decision, but is not him­

.
self just
* Thus he says:

”Qui statuit aliquid parte inaudita altera

Asquum licet statuerit, haud aequus fuit11.^

A judge may try his best to reach the just solution of the

problem put before him, but unless the parties are given an opport­

unity of hearing and presenting case before him in the best possible

manner, the parties may not be convinced that adjudicating process

has been just for them. Thus this rule reposes confindence in the

process of decision making.

1. J.R. Lucas, On Justice, 1980,p.87.

2 . Media, 11-199-200.
 517

John M. Kelly says, “The common law, as has been said, tends

to think of audi alteram partem as essentially a rule of natural

justice, the classical world, thoughtof it in two ways, both as a

rule of justice, and as a rule of wisdom. Of course, these two notions

justice and wisdom, border on each other and indeed overlap to some

extent, both imply correct decision, but the idea of Jwisdom seems to

concentrate on the quality of mind of the person who produces the

correct decision, justice suggests rather the effect of a correct

decision seen from the point of view of those affected by it. it is

only the latter element which underlies the modern commonlaw under­

standing of audi alteram partem, one hears both sides of a case,

because if one does not, it is unfair to the party unheard. In Greek

and Roman world on the other hand, not only this notion appears, but

also the idea that one ought to hear both sides of a case, because

otherwise one may make a mistake11. Thus, this rule is the rule of

wisdom and rule of justice. “On both counts it is very largely to be

seen as a safeguard against some piece of information not being made

available or some relevant consideration not being thought of

by giving a right of audience to those who stand to lose if we decide

in one way or another, we can hope that their concern with their own
2
interest will remedy any lack on our disinterested part”. Thus, this

rule dictated that both the acuser and the defendant must be listen

to before any decision is announced. Ihis rule is rule of wisdem

because it ensures that the decisions are made on being adequately

informed is the result of a proper thinking. It does not say that

1. Audi Alteram Partem, Natural Law Forum (9) 1964,p.103.

2. Luca, [Link]., p.85.
 518

hearing should be made for the sake of hearing only. When there is

nothing to hear, we must not emphasize on the hearing. “The rule audi

alteram paitem stems from a number of different arguments9 some insi­

stent and stringent, but applying to only a few sorts of decision,

others applying to a wider range of decisions but capable of being

satisfied in a wider variety of ways. Decisions, like a finding of

guilt, which pin blame on an individual, require that he should have

a proper opportunity of disowning responsibility and exculpating him­

self, and although in theory the American practice of subsequent

expostulation might sometimes be acceptable, there are good legal

reasons for making the British practice of prior protestation a rigid

rule. Other decisions impinging on the rights and central interests

of the individual require great procedural protection, and the rule

audi alteram partem is usually, if not, invariably, the best protect­

ion available. Many other interests ought to be protected, and the

rule audi alteram partem is often best means of ensuring the proper

regard is had to them". Kelley says that, "It is certain that, in as

much as the rule audi alteram partem does in fact represent an idea

of instinctual or natural justice, it must have a place in the heart

of every human judge, independently of precedent or authority, yet

that equally strong English legal instinct, to search for precedent

and authority for every thing, led English lawyers, back to classical

and Christian antiquity. In their hands what was atleast partially

no more than a maxim of popular [Link] has been turned into a power-
■ it 2
ful support of freedom and justice .

1. Lucas, [Link]., p.94.

2. Of. cit., p.110.
 519

Really speaking this rule does not guarantee that the decision

will be just or will produce the desired result. It serves a psycho­

logical purpose. It constitutes a necessary condition of decision

making process with which a man can identify himself. When he is given

an opportunity of hearing, a party to the dispute psychologically

satisfies himself that he lost the case not because of the fact that

he was not heard properly but he lost it for other reasons beyond his

control.

Essentially, this principle of natural justice belongs to judi­

cial soil. But it has been transplanted into the teritory of admini­

strative law by the courts and the courts have succeeded in encourg-

ing this principle in that field very widely. They have applied this

principle practically in the whole field of administrative power which

affects the legal rights or status of the persons. We cannot lay down

an accepted standard of the hearing process, and as pointed out by

Professor de Smith, "There is no accepted standard of substantive

natural justice to which judgement must confQrm". Though, it was laid

2
down in R. v Dy. Industrial Injuries Commissioner, exparte Moore that

statutory tribunal must base its decision on evidence having some

probative value, many cases have laid down that the duty of fairness,

as a criterian of procedural regularity, may emerge as a fertile .

3
source of substantive standards with which decision makers must comply.

Prof. Wade is of the view that, "It does not follow that it need be

modelled strictly on court procedure; hearing need not always be oral

1. [Link]., p.156.
2. (1966) 1 Q.B. 456, at 488-89.
3. Lever Finance Ltd. v Westminister (C.T.) LBC 1971,
1 Q.B. 222, R. v Liverpool Corporation, Exparte Liverpool,Taxi
Fleet Operators Association,1972,2 Q.B.299,[Link]. v Price
Commission,1973,L.C.R. 170.
 520

hearings, nor need source of evidence always be disclosed. But in

general the notion of a fair hearing extends to the right to have

notice of the other side's case, the right to bring evidence and the
1
right to argue11.

Bhagwati J. opined in Majneka Gandhi v Union of India^ that/

11 The principle of audi alteram partem mandates that no one shall be

3
condemned unheard and it is a part of the rules of natural justice".

The Magna Carta contains that, "The body of no free man shall

be taken, nor imprisoned,nor disseised, nor outlawed, nor vanished,

nor destroyed, in any way and the king shall not go nor send against

him by force except by the judgement of his peers and by the law of
4
land". Sir Edward Coke was of the view that the Magna Carta upheld

the audi alteram partem rule. He said that, "By the statutes of Magna

Carta CA 29, 5E3, CAP9 and 28E3. CAP 5 no man ought to be condemned
5
without answer etc'.' In his institutes Sir Edward Coke regarded the

audi alteram partem rule as divine and said that, "And the poet

(Virgil, Aeneid, VI,566) in describing the inequity of Rhadamanthus,

that cruel judge of Hell, saith, 'Castigatqus, auditaque dolos

subigitque fateri. 'First he punished before he heard; and when he

had heard his denial, he compelled the party accused by torture to

confess it. But far otherwise doth Almighty God proceed, postquam

reus diffamatus est-1 vocat, 2 interogat, 3 uudicat".

1. [Link]., p.496.
2. (1978) 1 SCC 284.
3. Ibid.
4. CA 29.
5. Co Instit. IV,37.
6. 3 Inst. 35.
 521

In fact, the Magna Carta was considered to be 'fundamental of

this Common Wealth'. The first section of the Body of Liberties cont­

ained that, No mans life shall be taken away, no mans honour or good

name shall be stayned, iio mans person shall be arested, restrayned,

banished, dismembred, nor any wayes punished, no man shall be depri­

ved of his wife or children, no man goods or estaite shall be taken

away from, nor any way indammaged under coulor of law, or Countenance

of Authorities, unlesse it be by vertue or equtie of some expresse

law of the Countray warranting the same, established by a general

Court and sufficiently published or in case of the defect of a law

in any partecular case by the world of god. And in Capitall cases,

or in cases concerning dismembring or banishment, according to that

word to be judged by the Generali Court".Thus, the Magna Carta set

2
the standard which was, 'higher than the standard of the world'.

Sir Edward Coke asserted that, "Nisi per Legem terrae But by

the Law of the Land For the true sense and exposition of these words,

see the Statute 37E. 3CAP.8 where the words by the law of the Land
3
are rendered without due process of law". Thus, he was of the view

that, "Per legem terrae" and due process of law were synonymous. What

he meant by the due process of law was the due process of common law

which contained the principle that no person should be condemned

without getting a chance to answer.

1. The Influence of Magna Carta on American Constitutional Develop­

ment, H.D. Hazeltine, 17, Colombia Law Review, p.1 at 10.
2. Blisset v Daniel, 10 Hard. 536, (68E.R. 1040).
3. The Second Part of the Institutes of Laws of England, 167,Vth Edn.
p.50.
 522

He criticised the Chief Justice's statement with regard to

the Attainder of Thomas CromweJ in 1540, that an Attainder of Parlia­

ment could not be questioned in court and insisted that by the statu­

tes of Magna Carta no man ought to be condemned without answer. "He

objected to the fact that Parliament had refused to allow Cormwell to

speak in his own defence before them. This criticism by Coke was

precisely the complaint of the commons which had led to the enactment

of 28 Ed III Ch.3-that men were condemned without being brought into

personally answer the accustions made against them. A similar object­

ion could have been raised against the king’s prerogative power to

commit without cause. Although Coke does not discuss lawful imprison­

ment in this way, it is likely that arbitrary arrest was detestable

to him because he knew that one of the cornerstones of the common law

was the principle that no person ought to be condemned unless he

appeared personally before a court". Blackstone reiteriated this prin-

2
ciple in his 'Commentaries on Laws of England', and said that, "Indict­

ment cannot be tried unless the defendant personally appears, accord­

ing to the rules of equity and statute [Link] in capital cases,that

no man be put to death, without being brought to answer by due process

of law"? The due process of law has been used by Sir William Blackstone

in the same sense in which it has been used by the commons in its

petition of 1354 which led to the enactment of statute [Link] Ch.3

(1354). Thisstatute declared that, "That no man of what estate or

condition that he be, shall be put out of land or tenement, nor taken,

1. Untimely Thoughts: A Reconsideration of the Origins of Due Process

of Law. Keith Jurow,19, The American Journal of Legal History,
265 at 277.
2. (1826) Ed. vol.4, p.320.
3. Ibid.
 523

no imprisoned, nor disinherited, nor put to death, without being

brought in answer by due process of law"

* Prior to this Act in 1352

a statute had been enacted in which the right to hearing was emphasi­

zed. Ihis Act declared that, "Whereas it is contained in the Great

Charter of the Liberties of England that none shall be imprisoned,

not put out of his freehold, nor of his liberties or free customs

unless it be by the law of the land; it is accorded, assented and

established that from henceforth none shall be taken by petition or

suggestion made to our lord the king or to his council, unless it be

by indictment or presentment of good and lawful people of the same

neighbourhood, where such deeds be done in due manner or by process

made by writ original at the common law; and none shall be put out

of his franchise or his freehold, unless he be duly brought to answer

2
and forejudged of the same by 'voiede lei". Again in 1363 in the

statute, 37 [Link] Ch.18 it was emphasized that no man be taken or

imprisoned nor put out of his free hold, without process of the law.

It was clearly declared in 1368 that, "No man be put to answer with­

out presentment before justice, or matter of record, or by due proce­

ss and writ original, according to the old law of the land, and if

any thing from henceforth be done to the contrary, it shall be void

ii 3
in the law, and hdden for error .

Thus, we see that the rule audi alteram partem has been the

cornerstone of the common law from the very beginning. The whole

Anglo American jursprudence bases its virtues on this noble principle.

1. Ibid.
2. 25 [Link].5, Ch.4(1352).
3. 42 [Link],[Link], (1360).
 524

The Chief Justice 'Erie' observed that, "It is an indispensible

requirement of justice that the party who has to decide shall hear

both sides, giving each an opportunity of hearing what is urged

against him • This rule is of universal application and is founded

upon the plainest principles of justice.

It is pertinent to quote John M. Kelly in this regard. '-The

learned author says that, 11 It is a firmly established rule of common

law that a judge or anyone exercising a judicial function must hear

both sides of every case; not only the plaintiff or prosecuter, but

also ithe defendant must be heard. This rule is recognised in England

as one of fundamental, justice and a failure to observe it makes the

whole proceeding aefective and voidable; in the United States of

America the principle is part of the notion of "due process" and is

equally well protected. "A person's right to.... an opportunity to

be heard in his defence. . . . (is) basic in our system of jurisprudence','

2
said Justice Black in Inre Oliver". In England the rule is often along

to spring from the idea of ' natural Ijustice' and thus ranks along

side the rule that no one may be a judge in his own cause. English

judges, Jhowever, are slow to decide cases by reference only to philo­

sophical concepts, and much prefer to rely on precednet. One might

then, have expected [Link] able to trace the English decisions on the

rule called audi alteram partem back through a series of precednets

to une ancient, seminal case in which, exceptionally, ‘..he rule is

developed from first principles; yet the fact is that, in the two

1. In Re Brook, 160, B.N.S. 416.

2. 333, U.S. 257 at 273.
 525

oldest English cases which mention the rule, sources are cited which

belong not to abstract philosophy, but to the worlds of pagan and

Christian Latin literature, and thus ultimately to Greek and Roman

antiquity • The audi alteram partem rule, therefore, is the rule of

justice and if adjudication is carried out without this higher

standard, that is tantamount to arbitrary action. Prof. Edmond M.

Cahn rightly points out that, 11 Justice is supposed to influence the

content of the legal rule and its use in particular cases, but a rule
2
there must be". The learned Professor goes on to remark that to

apply the audi alteram partem rule is the personal responsibility

of the judge and " a judge who decides before he has heard both sides
3
and has deliberated conscientiously is guilty of a denial of justice”.

The right to hearing is implicit in the concept of welfare state.

To decide a matter without affording an opportunity of hearing is

against the declared policies of the welfare state. In the highly

organised, scientifically planned society we cannot safely entrust

our livelihoods and our rights to the “discretion of authorities,

examiners, boards of controls, character committees, regents, or

licence commissioners. We cannot permit any official or agency to

pretend to sole knowledge of the public good. We cannot put the

4
independence of any man wholly in the power of other men". Prof.

Charles Reich terms this right to hearing and other rights as ,"the

new property”• He is of the view that such rights do not merely

fulfil the aspirations of the individuals but they also give society

Audi Ateram Partem, 9. Natural Law horum, 103.

2. Authority and Responsibility, Columbia Law Review,vol.51,838 at 840
*
3. Ibid at 389. Charles Reich Edited by
4. The New Property./Society and the Legal order.^chwartz,595 at 603,
Originally published in 73, Yale Law Journal,1964,778-787.
 526

the power to change, to grow, and to regenerate, and hence to endure.

J-hese were the objects which property sought to achieve, and can no

longer achieve. The challenge of the future will be to construct, for

the society that is, institutions and laws to carry on this work. The

learned author concludes that, "The concept of right is most urgently

needed with respect to benefits like unemployment, compensation,

public assistance, and old age insurance. These benefits are based

upon a recognition that misfortune and deprivation are often caused

by forces far beyond the control of the individual, such as technolo­

gical change, variations in demand for goods, depressions, or wars.

The aim of these benefits is to preserve the self sufficiency of the

individual, to rehabilitate him where necessary, and to allow him to

be a valuable member of a family and a community; in theory they

represent part of the individual's rightful share in the commonwealth.

Only by making such benefits into rights can the welfare state achieve

its goal of providing a secure minimum basis of individual well being

and dignity in a society where each man cannot be wholly the master

of his own destiny".

Lord Diplock seems to be of the same view that opportunity of

hearing in adjudicating process has acquired a special status in the

administrative and judicial process of the nations governed by rule

of law. Since most of the rights of the persons in a welfare state

are to be fulfilled through administrative agencies, the people may

suffer on many fronts if they do not have the opportunities to state

1. The New Property, Charles Reich, society and the Legal Order,
R«[Link], 595 at 602.
 527

their position when the decisions of the said agencies are going to

affect their purse, reputation, personality, livelihood and other

rights that are essential to make them the civilized citizen of their

country. He says that, "In a society which acknowledges the rule of

law, the right of the citizen to those services with which the State

under the enacted law assumes the responsibility to provide him

cannot be left to the uncurbed discretion of the executive branch

of government. There must be rules to govern his entitlement to these

services and to define the limits of executive control over his other

dealings and’ his property. There must be means provided for securing

mutual observance of those rules by the executive as well'as by the

citizen, and means provided for resolving disputes as to whether the

rules have been observed in individual cases.... What is, however,

essential is: first, that the procedure adopted for ascertaining what

the facts are should comply with the requirements of natural justice,

it should be fair to both parties to the dispute; and secondly; that

the same substantive rules of law should be applied consistently to

all cases in which the facts are similar otherwise all that is achi­

eved is to substitute the arbitrary discretion of some other person

or tribunal for the arbitrary decision of the executive".

Thus, we find that the rule that bobody should be condemned

unheard is based on the first principle of justice. Lord Campbell C.

J. observed that, "It is one of the first principles of justice that

2
no man should be condemned without being heard • He insisted that the

1. Administrative Law: Judicial Review Reviewed. The Cambridge Law

Journal, vol.33, 1974, 233 at 236.
2. R.V. The Arch Bishop of Canterburry, 2E and E,545 at 459 — *60
 528

mode of hearing should be satisfactory and that this rule must

be observed in all cases.

The concept of welfare state has added a new dimension to the

audi alteram partem rule. Previously, it was a matter of procedure

and the party suffered by the decision had to go to the courts to

get it invoked. But as has been discussed above, the audi alteram

partem rule has come to be realised as a matter of right, so that if

it is denied, it can be had on demand. A person can approach to the

concerned authorities to demand as a matter of right the opportunity

of hearing if it has been denied to him. Mr. Justice [Link] of

the Karnataka High Court has thus laid down that, "Un a careful

consideration of the matter; it appears to me, that this case brings

forth a new situation and furnishes the basis for evolving a new

principle of natural justice, namely, 'right to hearing on demand!

The circumstances under which this principle could be invoked are

the person concerned is fully aware:

(i) that an authority is sure to take a decision in respect of any

particular matter;

(ii) that the decision might affect his interest adversely;

(iii) that there is no specific provision of law requiring the

concerned authority to issue notice of hearing to him .

Professor Wade is of the view that, "A feature of the long line

of earlier case is that they insist upon the right to be heard as a

fundamental principle of justice, implicit perhaps in the intention

1. Town Municipal Council, Chickmangalur v State of Karnataka,

A.I.R. 1988, Karnataka, 207 at 210.
 529

of any statute conferring a power, but always operative unless there

is some express provision to the contrary".12

4
3

In Institute of C.A. of India v L.K. Ratna^, our Supreme Court

has observed the same. It says, "The principles of natural justice

must be read into the unoccupied interstices of the statute unless

there is a clear mandate to the contrary"?

Lord Diplock echos the same when he says that, "The principle

has now been accepted that whenever a statute confers on an admini­

strative authority discretionary powers to take action which affects

the legal rights or the material interests of private citizens, even

where no express provision made for previous inquiry or for subsequent

appeal, parliament intended that the power should not be exercised

the rules
unless^/of natural justice had heen complied with by giving to any

person whose legal rights or material interest might be affected,

reasonable notice of what action was proposed and a fair opportunity

of expressing any reasons he might have for objecting to it".

Professor Maxwell says that, "Again in giving judicial powers

to affect prejudicially the rights of person or property a statute

is understood as silently implying, when it does not expressly provide

the condition or qualification that the power is to be exercised in

accordance with the fundamental rules of judicial procedure, such,

for instance, as that which requires that, before its exercise, the

1. The Twilight of Natural Justice, 67, The Law Quarterly Review,

1951, 103 at 109.
2. A.I.R. 1987, S.C.71.
3. Ibid at 77.
4. Of. cit., at page 243 - 244.
 530

person sought to be prejudicially affected shall have an opportunity

of defending himself’.12

It is, therefore, concluded that no one should be condemned or

deprived of his rights without being heard and he must receive a notice

that his rights could be put at stake. In fact, the rule of audi

alteram partem ensures that a person secures a fair and impartial

order from the concerned authorities and that his rights are not badly

affected because of the non-observance of this fule. Mahon J. thus,

spoke that, "The principle that a person whose interests will plainly

be affected by the determination has a right to be notified of Jthe

2
hearing and to be heard from its inception".

Bayda J. in his dissenting opinion made a very nice observation

with regard to audi alteram partem rule. He said that, "To deprive

a citizen of his entitlement is often to inflict serious hardship on

him and his family. It is not surprising, therefore, that the courts

of several jurisdictions have treated the suspension or revocation of

an operator’s licence as a matter affecting an interest which falls

into that general class of interests which by their nature, tend to

attract the audi alteram partem rule rather than that class to iwhich
ii 3
the courts afford no procedural protection

Prof. E.C.E.S. Wade writes that, "It is equally fundamental to

a just judicial decision that each party should have the opportunity
of knowing the case against him and of'stating his own case. Each party

must have the chance to present his version of the facts and to make

1. Interpretation of Statues, IV Edn.p.546.

2. Ronaki Ltd. v Number One, Town and Country Planning Board,(1976)
1, NZLR, S.C. 593 at 602.
orosy v Highway Traffic Boards of Saskatchewan, (1977) 2,W.W R
232 at 238.
 531

his submissions on the relevant rules of law. Each side must be able

to comment on all material considered by the judge, neither side must

communicate with the judge behind the other's back. Although the

written rules of court procedure are founded on these general princi­

ples, there is scope for the unwritten right to a hearing to operate

even in the courts".

1'he audi alteram partem rule is based on the code of fair admini­

strative procedure. Prof. Wade is of the view that, "The right to a

fair hearing has thus been used by the courts as a base on which to

build a kind of code of fair administrative procedure, comparable to

due process of law under the constitution of United States. It is a

part of a comprehensive design for ensuring that power is exercised

considerately and fairly. As the authorities will show, the courts

took their stand several centuries ago on the broad principle that

bodies entrusted with legal power could not validly exercise it without

first hearing the person who was going to suffer. This principle was

applied very widely to administrative as well as to judicial acts, •

and to the acts of individual minister and officials as well as to

the acts of collective bodies such as justices and committees. The

hypothesis on which the courts built up their jurisdiction was that

the duty to give every victim a fair hearing was just as much a canon

of good administration as of good legal procedure. Even where an order

or determination is unchallengeable as regards its substances, the

court can at least control the preliminary procedure so as to require

1. Constitutional and Administrative Law, Sir E.C.S Wade arid BRADLEY

10th edition, 1987,p.643.
 532

fair consideration of both sides of the case. Nothing is more likely

to conduce to good administration.".12

3

Jain and Jain say that, "The audi alteram partem rule ensures

that no one should be condemned unheard. It is first principle of

civilized jurisprudence that a person against whom any action is

sought to be taken, or whose right or interest is being affected,

should be given a reasonable opportunity to defend himself"?

Professor Harry Jones argues that the welfare state "must be

regarded as a source of new rights, and that such rights as social

security must be surrounded by substantial and procedural safeguards

3
comparable to those enjoyed by traditional rights of property1'.

The right to hearing thus, has come to be a procedural safeguard

for those whose rights are affected by administrative decision. Its

frontiers have been pushed further and further with the passage of

time. The development of welfare state has given it a new meaning.

Previously it was not recognised as a right but merely it was known

to be a privilege. In U.S.A, there was a dichotomy between rights

and privilege. Before 1970 the court used to hold that a person was

not entitled to a hearing when a welfare bebefit was being withdrawn

by the Government. The theory was that if an individual was being

given something by government to which he had no pre-existing right,

he was being given a mere privilege. After 1970 with the decision

1. [Link]., p.496-1988 ed.

2. Principles of Administrative Law, 1986, p.288.
3. The Rule of Law and the Welfare State, Columbia Law Review,
58, 143 at 154-155.
 533

by the U.S. Supreme Court in Goldberg v Kelley12

, “The old dichotomy
3

between right and privilege has been done away with for purposes of
2
hearing”. The [Link] Court observed in this case that, “Society

today is built around entitlement. The automobile dealer has his

franchise the doctor and lawyer their professional licences, the

worker his union membership, contract, and pension rights, the execu­

tive his contract and stock options; all are devices to aid security

and independence. Many of the most important of these entitlements

now flow from the government; subsidies to farmers and businessmen,

routes for airlines and channels for television stations; long term

contracts for defence, space, and education; social security pensions

for individuals. Such sources of security, whether private or public,

are no longer regarded as luxuries or gratuities; to the recipients,

they are essentials, fully deserved, and in no sense a form of

charity. It is only the poor whose entitlements although recognised

3
by public policy have not been effectively enforced”.

1> 397, U.S. 254 (1970).

2. Administrative Daw in the Common Uaw Countries; Recent Developments
and Future Trends, Professor M.P. Jain, Journal of Malayasia and
Comparative Law, 1983, p. 1 at 6.
3. 397, U.S. 254o
 534

Rule in Ancient India:

This rule has been recognised by the ancient Indian Text§;The

•Hitopadesh says that, ’’One should not do any thing against another

person or inflict punishment upon any other person at the instigation

of other. He himself should hear, should know the reality and only

after that should punish or reward the person concerned. Without

knowing the pros and cons of the matter, if any thing is done against

any person that will be inviting one’s own disaster just like by

putting hand or finger in the mouth of a snake one invites one’s own

death”

=t ’TiTO-nTTin i 11 mi i

jtnrnmnfTfw?; frjB 1 1 mi 1

Our law givers and our sacred texts make it very clear that at

the beginning of creation this rule of natural justice has directly

cQme from God and men of high principles and seers have been follow­

ing its from the time when there were no states, no king, no punish­

ment, no judges. It was only the substance of Dharam that was the

norm of behaviour among the men. Thus, Manu says that, "At the beginn

ing there was no world, no population, and there was nothing which

could be proved by reasoning. The unseen God revealed the law that

was ever lasting and that world order which was to be based on
2
standards, values, and high ideals, and ideals of god .

grrnTtMf | I IM.I I
■o e
1. Hitopadesh, Suhridbhed, 143-144.
2. 1/5.
 535

The rule of audi alteram partem enjoins that every body should

be given a fair opportunity to present his case. The Indian texts

make it clear that every body should be given this opportunity. If

those, who are at the helms of theaffiar, are not given an opportu­

nity, they feel that injustice is done to them. Likewise, they must

realise that if they do not provide the opportunity of hearing to

others, they also feel the same. That is why one should not inflict

upon other anything which one would not like to bo inflicted upon

one self, Thus 'Panchatantra12

3 says that, 11 Listen, this is the sum

and substance of the Dharam that a man should do to another what he

wishes to be done to himself and he should not inflict upon another

what he does not wish to be inflicted upon himself. This sould not

only be listened to, but it should be practiced in life.

armn: qt^’i h 11

Such line of reasoning has also been given by Western thinkers.

Thus St. Germain says that, "Do to another that thou wouldest another

should do to thee". Mathew says that, "Do to other men all that,
3
you would have them do to you". St. Germain has given a negative

form of it when he says [Link], "Do not that to another which thou
wouldest not have done to thyself".45 Samuel Clark says, "Whatever I

judge reasonable or unreasonable for another to do for me; that by

the same judgement I declare reasonable Or unreasonable that in like

5
case should do for him".

1. 103, p. 346. '

2. Dialogues, (1532) 1st Chap.2.
3. 7, 12 (Knox) .
4. Ibid.
5. Works of Samuel Clarks II, London, 1738, p. 619.
Quoted by Henry Lidgwick, The Methods of Ethics, Vllth Ed.1907,
PP. 384-85.
 536

Our Rigved says that there was nothing at the beginning but

only the ideal of law of god which distinguished between good and

bad, moral and immoral, high and low and this law directly came

from god which became the guiding principle of whole civilized world”.

dT I •d’T ndlnld ddTdT dT’dT^dT dT dd I

Tib 11 ?i i

d d dT€ d TTdqT 3fi?d afl’f 1 d ^d’ I

*
STl^ddT^ VTW dd dThT^-pd dj; q-jrr I I ?| I

dd nTd I d dugT ^coiidTj tpd df'Hd n'4'rrT 3dd |

ddFldl ■'drfdfdd qdTrrrd w ddn^d^fiSdT dPJddg I I 31 I

*
Mahabharat says the same in ‘Shanti Parva and declares: that

at the time there was no state, no king, no judge, no punishment

but the people were protected by the Dharma Nyaya and they followed
2
the rules vigorously.
d d TT^i d TTdT dT^ d ddf^: I
d’fctd 3dT: ddf Tdrf^dVHT^Hd I r

It is therefore, clear, that "Adjudication should not only be

fair, it should be made by judges or juries directing their judgement

in accordance with some [Link] general rules. As to which rules

should be the basis of judgement, whether rules of natural law or

moral doctrine or established rules of lav/, there is a variety of

opinions. So notions such as natural justice or moral justice or

legal justice are linked with the notion of fair trial in many a
3
lawyer's complete working philosophy of justice". It is, "A pervas­

ive facit of secular law wherein a spiritual touch enlivens the

1. 10th Mandal, Sukta, 129/1-3.

2. 11/14.
3. Justice According to the English Common Lawyers, [Link],
1961, London, pp.44-45.
 537

legislation, administration and adinHin-,^ x. , •

u adjudication to make fairness a
creed of life. It has many hues anH n n
y s ano. shades and save where valid law
excludes, natural justice aonliec ,,v,
PPlies when people are affected by acts
of authority. It is the backbone nf
wjone of healthy government, recognised
from time immemorial, and not a mystic testament of judge made law”.1

Thus, we find that the rule of hearing makes it obligatory on

the part of those who have right to affect the rights of another. It

also reminds them of the fact that if hearing is not. given, a just

decision may be taken but that will not be called an act of justice.

1. Mohindar Singh Gill v Chief Election Commissioner, New Delhi.

A.I.R. 1978, S.C. 851, approved in M/s Xjaxmi Khandsari v State
of U.P., A.I.R. 1981, S.C. 873 at 892.
 538

The Ancientness of the Rule:

The audi alteram partem rule is an ancient rule and its origin,

'is alleged to be traceable to the dawn of time... at all events it

was a principle that existed in the remote days of antiquity'.It

is of very ancient lineage and was known to the ancient Indian law

givers and early Greeks and Romans. The insistence on this rule of

natural justice is the acceptance of the fact that a man may be very

confident about the guilt of other, yet it will be against right

reason and justice that he is not given an opportunity of hearing.

It was held in Calvin's case that, 'The law of nature was before

any judicial or municipal law and the law of nature is immutable-.

This law was infused into heart of man by God at the time of creat­

ion of nature of the man for his preservation and direction and this

is, therefore, eternal and moral law since it was written with the

finger of god in the heart of man before the law was written by Moses,
3
who was said to be the first reporter of law in the world'.
4
Best J. observed in Forbes v Cochrane that the law of England

is the law of nature, or law of god. "The proceedings in our courts

are founded upon the law of England, and the law is again founded

upon the law of nature and the revealed law of god. If the right

sought to be enforced is inconsistent with the either of these,the

English Municipal courts cannot recognise it. I take it, that the

1. Marshall, Natural Justice, 1959,p.17-18.

2. (1608) 7,[Link]. la (12b), 77 E.R. 377.
3. Ibid at 391-92.
4. 2B & C, 461.
 539

principle is acknowledged by the laws of all Europe" .

The Athenian Judicial oath contained a promise by every judge

to listen equally to prosecutor and defendant. The line goes like

this, "I will give impartial hearing to prosecutor and defendant

2
alike". Demosthenes says that, "Apart from this oath the ordinary
law of Athens enjoined an equal hearing of both sides".3 He adds an

interesting piece of psychology; "bolon saw that human beings enjoy

hearing an accusation more than a defence, and therefore, realised

that a defendant, speaking after his accuser could be protected from

an incorrect judgement only, if the judge showed an equal degree of

4
attention to both parties". Kelley says that, "Here the idea of audi

alteram partem is shading somewhat into the [Link] of [Link] impart-

5
iality". Aristophanes in his ’Wasps' refers to it and his two char­

acters reproduce the conflict between the ideal of justice that both

sides should be heard and the ideal of convenience, that the second

party need not be heard, if the matter is clear and enough already.

Thus, ideal of justice and ideal of convenience are twoconflicting

norms and the ideal of justice must prevail over the ideal of Conveni­

ence. However, in 'Wasps' while Bdelycleon advocates the ideal of

justice that a decision should not be taken until both sides are

heard, Philocleon argues that "But, my dear boy the things' self
evident, speaks for itself".6 Menander writes that, "Punish no one

unexamined".Thus, in Oreek and Homan writings the condemnation of

some one without trial has been regarded as tyrannical, unjust and
17 Ibid at 471, 107 E.R. 456 at 459.
2. In Timocr 149-151.
n 6‘ 919,FF.
3* Uecorona, 1, 6-7. 7. Fragm, 17.
4. Ibidi.
5. [Link]., 104.
 541

In Greek literatures it has been a matter of pride to give a

correct judgement after hearing the both sides. vJe find in the famous

trial scene depicted on the shield of Achilles in the eighteenth book

of Iliad. In that scene it is shown that the elders sit in a sacred

circle around the contestents, and eagerly give their judgement in

term. The scene tells us that two talents of gold are put there to

be given as a reward to the person who gives the 'straightest' judge­

ment. Both parties in the law suit are heard by the elders before

the judgement is given.

The Roman sources also show the same division between wisdom

and justice in the foundation of the rule audi alteram partem. Kelley

points out that, "The maxim audi alteram partem does not occur at all

in the digest of Justinian, and one has to search very hard to find

even a hint of the notion in specifically legal texts; but this may

be at least partly because the idea was familiar and taken for

granted. The secular writers, on the other hand, make the principle

explicit. Thus, the elder Seneca, in a 'Controversia', makes an

accused person, prevented by a magistrate from making a speech, comp­

lain that even those accused of treachery to the state are given a

hearing before being executed (cumnec proditores inauditi pereant)•

Tacitus reports an attempt to have the notorious informer Crispus

condemned unheard; those who resisted this course thought that an

accused ought to be heard according to the customary law (more audie-

ndum) no matter how guilty and detested he might be. Suetonius 9 in

one of many references in literature to the one sidedness of the

 542

justice of the Emperor Claudius, tells of an advocate who cravenly

thanked Claudius for allowing an accused man to make his ddfence, but

added (under his breath, one supposees) et tamen fieri soletC'but of

course it is the custom"), Apuieius gives a picture of magistrates

who try to save an old man from being lynched; what the magistrates

suggest is ut rite et more maiorum iudicio reddito et utrimquesecus

allegationibus examinatis, civiliter sententia promeretur, nec ad

instar barbaricae feritatis vel tyrannicae impotentiae damnaretur

aliquis inauditus et in pace placida tarn dirum saeculo proderetur

exemplum. Placuit salubre cconsilium..,. To hear both sides, plaintiff

or prosecutor and defendant, was thus clearly part of the Roman mos

maiorum, and where the principle was neglected, where men were conde­

mned unheard, the Roman lay writer reacted invariably with disappro­

val. Many Roman texts can be cited which without specifically saying

that audi alteram partem is a rule of law, yet make it clear that its

neglect is wrongful.

On the other hand, the notion of audi alteram partem as a maxim

of mere wisdom is not entirely lacking in the Roman texts. Thus Cicero,

writing to Atticus, says his brother Ouintus has complained to him

that he is being hard pressed by Atticus for payment of a debt; Cicero,

however, refrains from reproaching Atticus, because he has not heard

Atticus's side of the story".

1. [Link]., 105-106
 543

Really speaking this rule is founded on equity, honesty and

right reason. It sets a standard on which the honourable man attempts

to do what is fair. Holdworth has pointed out that, “The Roman lawyers

held that the aim of the state was the promotion of justice and that

the law was the instrument which the state used to attempt that aim;

that the universe over which the Roman Emperor ruled was governed by

the law and that one variety of law was the jus naturale which most

lawyers held to be that ideal body of right and reasonable principles

which was common to all human beings".^ Sir 'Henrymaine was of the

view that, "The happiness of mankinds is, no doubt, sometimes assign­

ed both in the popular and in the legal literature of the Romans

as the proper object of remedial legislation, but it is very remark­

able how few and faint are the testimonies to this principle compared

with the tributes which are constantly offered to the over shadowing
2
claims of the law of the nature".

Thus, Romans adhered to the rule of audi alteram partem and they

made it obligatory for the judgment givers not to give judgment with­

out hearing. Whether the Roman literature or texts mention this rule

as a fundamental principle of the rule of law or not, it remains very

important in the Roman context that the many texts again and again

emphasize that it is wrong to neglect this rule. John M. Kelley

gives a thorough list of the Roman text which lay emphasis on this
□ 4 - . 5 6
rule. These are: Seneca Medea , Apocoloc , Epistulae , Galba

1. History of English Law, vol.2, p.5.

2. The Ancient Law, p.84.
3. 199-200.
4. 10.4; 12.3.19; 14.2.
5. Pliny. 4.11.6.
6. ,14.
 544

claudiue , vitelUu , dialogus de oratoribus^, historia^, annale «

historic alexandrimagni , epistulapompeiitrog^,carmina^.

The English lawyers of Renaissance were known to these Roman

texts and the early English cases quote, in support of the rule o

audi alteram partem, the couplet from the media of the Seneca.

in Boswel s case , it was resolved that, "No incumbent shall *

removed by the statute of Westminster the Second by quart; inr

assise of darrein presentment purchased within the six mon

unless the incumbent be named in the writ quia res inter a

alteri nocerenon debet, although the incumbent be in by d

title; and therewith agree 30 and 46 Edw. 3015.9H. 6.30 Sc 5

5 Edw. 4.115.9 Edw. 4.30

Qui statuit aliquid parte inaudita altera

Aequurn licet statuerit, haud aequus fuit"

This was followed by James Bag's case. In this case it was

held that the removal and difranchisement of James Bag was void

because, "They have proceeded against him without hearing his answer

to what was objected, or that he was not reasonably warned, such

12
removal was void, and shall not bind the party". After that the two

1. Suetonius.38.
2. 14.
3. Tacitus. 16.
4. 1.6.
5. 2.77, 12.22.
6. Curtusrsus. [Link].
7. Justinus. 22.3.7.
8. ^vitus, 6.605.
9. Mich.3 Jacobi (48b). 77 E.R. 326 at 331
6 [Link]. (48b) at (52a).
10. 199-200.
11. 11 [Link]. 93b, 77 E.R. 1271.
12. Ibid at 99a. 1280 of E.R.
 545

lines were quoted from Seneca's medea and then it was observed that#

"And such removal is against justice and right".In that case James

Bag had threatened and scandalised the Mayor in the presence of many

other inhabitants of the Borough. He "turning the hinder part of his

body in an inhuman and uncivil manner towards the aforesaid Thomas

Fowemns scoffingly contemptuously, and uncivilly with a laud voice

said the aforesaid Thomas Fowmens these words following, that is to

2
say ("come and kiss)" . These cases were followed by protector v
Town of Colchester , Leroy v Campion^, City of Exeter v Glide^.

The rule audi alteram partem, no doubt owes its origin to Greek

and j<oman texts, yet it cannot be said that the English lawyers are

immensely influenced by the Roman texts. In this context, [Link]

says that, "The theory of natural justice (vaiko'v dikaiov) indicated

by Aristotle and developed by the Stoic philosophers in Greece and

at Rome and expressed so vividly by Cicero, has evidently made little

impression on English lawyers, even on those reared on literae

humaniores. The early Christian theory of natural law as the eternal

law of God, revealed to man in the gospels and by the prophets has

had a more noticeable influence. The later mediaeval theory, propound

ed by the scholastic philosophers, which blends Christian doctrine

with Aristotelian moral philosophy, has been the most prominent wdthin

the English legal profession and the English lawyers have not been

entirely indifferent to, though they have stoutly resisted complete

conversion to, the rationalist theories of natural justice advanced

1. Ibid at 99a.
2. Ibid at 95b. 1275 of E.R
*
3. (1655) Style 447.
4. (1657) 1 S.I.D. .14 and 2 S.I.D. 97.
5. (1692) 4 Mod. 37.
 546

by their native philosophers Hobbs and Locke in the seventeenth

century. Besides the notion which links the law of nature with the

jus gentium the positive law common to various states has been invok­

ed very occasionally by the English judges and jurists. The philoso­

phy of natural justice which has flourished on the European continent

since Kant, and which has produced significant juridical versions of

natural law in the works of German, French and Italian jurists, has

made very little impression on the practitioners or even on the

professors of English law".

In fact the English lawyers were very much influenced by the

theological doctrine of natural justice. This doctrine substantially

corresponds with the classical catholic doctrine formulated by Aquinas

2
in his Summatheologica in thirteenth century. The sixteenth century's
3
English laweers St. Germain developed his theory in his Dialogues.

Vinogradoff is of the view that 'St. Germain's expositions correspond­

ed to the scholastic pattern laid down by Acquinas, though, St. Germain

actually drew directly on the works of John Person rather than on

4
Acquinas.

The basic assumptions in this doctrine are that there is existen­

ce of god and the god's eternal law pervades every where. His doctrine

defines the eternal law as, "The reason of the wisdom of god, moving
5 He is of the view that this
all things by wisdom made to a good end".4

eternal law is not wholly known to men. They know in part through

17 Justice according to the English Common Lawyers, 1961,pp. 47-48.

2. Circa, 1720.
3. Two Dialogues between a Doctor of Divinity and a Student in the
4. 'Kelson Md^OTSCilncJ In Sixteenth Century Jurlspurdence'

24, L.Q.R. 373 at 384.

5. 1st Chapter 1.
 547

revealation, as recorded in new and old testaments, this part is

known as positive divine law. The second part is known as the law

of nature or the law of reasonable cause it is known through reason.

Thus, according to St. Germain the natural law unequivocally establ­

ished on a divine basis.1 Thus, we see that the English Theologists

influenced the English common lawyers more than the Greeko-Roman

texts. The rule audi alteram partem is based on the maxims of Christ­

ian fathers of the church. The Christians have enlisted the principle

of audi alteram partem in aid of the Christian faith. Tertullian

thus writes that, "There is open opportunity of reply and debate, as

it is not lawful to condemn in any way the undefended and the unheard.

To Christians alone it is not permitted to speak what will cleanse

the charge, what will defend the truth, what will make the judge the

just; but what is sought is only what public hatred demands, the

confession of the name, not the examination of the charge..... But if

they condemned the unheard, in addition to the odium of an unjust

deed they will deserve the suspicion of doing it with a sense of

guilt, not having wanted to hear what they could not condemn if they
heard".23 Lactantius also says the same in his DeJustitia, "We demand

this, if it is possible by the right of humanity that he not condemn

before he knows every thing. And if this right of defence is given to

the sacrilegious, and to traitous, and to poisioners, and it is not

lawful to condemn to any one in advance before his case be tried, we

do not appear to ask unjustly...

* but they are fearful that if they
3
hear, they cannot condemn".
1. Ibid.
2. Apologia, 2.2, 1.3.
3. Vol. VI, Col. 546f.
 548

Thus, the Christian theologists and philosophers tried to give

this rule a philosophical basis and made it clear that the rule is

based on the right of humanity. We find a full expression of this

rule in the fourth century in the writing of Bishop Lucifer of Cagl -

iaria in Sardinia in his defence of St. Athanasius. He writes that,

"You compel us, constans, to condemn our pious fellow priest Athana­

sius. But we are prohibited from doing this by divine law. By the

sweeping use of Royal authority you ask the priests of the Lord to

shed blood: ignorant of the laws of justice, divinely given to us,

you try to take them from our minds. By what divine right can you

assert that it is permissible to condemn one who is absent, unheard,

and above all innocent? How do you believe it divinely permitted to

punish a person unheard when you see that:'Adam and tve, the origin

of our race, were heard before they were struck by the sentence of

God?' Then God called Adam and said to him, Adam, where are you? And

Adam said, I heard your voice, Lord, in paradise, and I was afraid,

because I am naked and I hid myself. And God said to him, who showed

you that you are naked, except that you have eaten from the tree fron

which alone I commanded not to eat? And Adam said. The woman that yot

gave me, she gave me from the tree, and I ate. And ^od said to the

woman, why did you do this? And the woman said, The serpent persuadec

me, and I ate Abel a just man was killed and Cain having been

Questioned, recoived his sentence. And you wish to punish a priest

of Lord without a hearing? Was it not lawful for God to punish Cain

before he called him and questioned him? But he did not want to.
 549

giving a model by which we might begin to judge those committed to

us • ••• iherefore if the judgment of God's bishops ought to be so

just that it may be said to be the judgment of God, how can you order

that someone be condemned by us unheard? If the people then,

come to us to be judged according to the law of God, why do you ask,

1
Condemn the innocent".

This clear statement of father Lucifer seems to be, "The first

trace of the idea that the principle of audi alteram partem originates

in divine example and is, therefore, inherently entitled to obedience

from human beings. This view may have been a common place in the
2
Christian world".

Thus, we see that the Christian theologists have given a new

lease of life to the audi alteram partem rule and they advanced it

not only as part of a system of theology but also as part of an ethi­

cal system. They were of the view that those who control public affai­

rs, statesmen, legislatures and lawyers could use this rule for the

following purposes:

1) "the precepts of natural law could be invoked to provide major

premises for legislation,

2) these precepts could be used as the criterian for simply evaluat­

ing positive laws. Thus, an established law in a given community could

be adjudged just, if it is consistent with these precepts, or unjust,

if it is contrary to them.

1. [Link]. 1.1 (Migne, Patrologia Latina vol. 13, Col. 817 ff.)
2. John M. Kelley, [Link]., p. 109.
 550

3) there might be used not only as criterian of the justice but

also of the validity or obligation of positive laws.”

We find the application of this principle by Fortescue J. 1400

years later by giving the same reasoning, which was given by father

Lucifer in King v rhe University of Cambridge (The Chancellor, Masters

and Scholars of the University of Cambridge)known as doctor

Bentley’s case. In that case, amandmus was prayed to the vice Chance­

llor, masters and scholars of Cambridge, to restore Dr. Bentley to

the degrees to which he had been admitted by the University and had

been surreptously degraded. Fortescue J. was of Lhe opinion that

convictions even upon Acts of Parliament are frequently quashed for

not summoning the persons convicted though not required by the statute,

because it is still against natural justice to convict without hearing,

He also wrote that he had heard a learned civilian say, that god

himself could not condemn Adam for his transgression until he had

called him to know what he could say in his defence. The learned

justice wrote that, “The law of God and man both give the party an

opportunity to make his defence if he has any. I remember to have

heard it observed by a very learned man upon such an occasion, that

even Gq<3 himself did not pass sentence upon Adam, before he was called

upon to make his defence. Adam (says God) where art thou? Hast thou

not eaten of the tree, whereof I commanded thee that thou shouldest
3
not eat? And the same question was put to Eve also .

1. [Link], [Link]., p. 52.

*2 (1723) 1 strange 557, 77 E.R. 111.
3. Ibid.
 551

Phis is the first adoption by the judiciary of the theological

philosophy referred to by Bishop Lucifer. Prof. Wade says that, "This

is a nice example of the old conception of natural justice as divine

and eternal law".

It is true that the bibical precedents are conflicting yet the

influence of the Christian thinkers on the adjudicating process can­

not be minimised. Marshall says it, "A fanciful view"However, the

new bible mentions it as an essential element in the adjudicating

process. "Does our law permit us to pass judgement on a man

It says,
3
unless we have first given him a hearing and learned the facts".

R.F. Heuston points out that, "It has, however, been noticed

that the biblical precedents on the point are conflicting, for at the

lugubrious dinner party recorded in Daniel v, at which the moving

finger interrupted the proceedings by writing on the wall 'mene, mene

tekel, upharsin (you have been weighed in the balance and found want­

ing), the prophet does not indicate that Belshazzar was given any

summons, information of the nature of the complaint, or opportunity

to answer".4 John M. Kelley says the same, "Biblical scene are doubt­

ful sources of authority for the status of audi alteram partem as a

divinely inspired law. Certainly God 'heard' Adam and Eve and Cain;

but in St. Mathew's account of the Last Judgement according to the

words of Christ, salvation and punishment are awarded before those

5
being judged can say anything (Matt. 25.31 ff) .

1. [Link]., 500.
2. [Link]., 18.
3. Quoted by Lucas [Link]., at p.86.
4. Essays in Constitutional Law, 2nd Ed. 1964,p.185.
5. [Link]., p.110.
 552

Without entering into this controversy, we can safely conclude

that the Christian philosophers of the middle ages infused a sense of

divinity in this rule and it's ediface was built by Father Lucifer. It

had been only lying in the pages of holy books, had justice Fortescue

not used it in thedecision making process. By making its use in the

decision making process he made it one of ±he fundamental principles

of justice at common law. The early English cases used it in that

sense and inisted that hearing, is a must in the decisional process

and that each party must have his day in the court. It was observed
in R. v [Link] D.D..^ by the Chief Justice Lord Kenyon that, "If

we were to hold this return of mandmus to be sufficient we should

decide contrary to one of the first principles of justice, audi

ateram partem. It is to be found at the head of our criminal law,

that every man ought to have an opportunity of being heard before he

is condemned; and I should tremble at the consequences of giving way

2 3
to this principle". Earlier, in 1723 in Dr. Bentley's case Chief

Justice Lord Pratt observed that, this court will relieve him, if he

has been proceeded against and degraded without being heard, which

is contrary to natural justice. This case, therefore, will fail

under the rules for the removing of members of corporations, which

cannot be done without summoning the party and giving him an opportu-
4
nity of being heard".

1. 1799, 8 T.R. 209.

2. Ibid at 210.
3. 1723, 1 Strange, 555; 2 Lord Raymon.
4. Ibid at 1347.
 553

This fundamental rule of adjudication was applied R. v Benn and

1 2
Church , Gibbs v stead.

In his Please of the Crown', Hawkins maintained that the audi

alteram partem rule should be implied in the construction of all

penal statues. He said that, "No proposition can be clearly establish­

ed than that a man cannot incur the loss of liberty or property for

an offence by a judicial proceeding until he has had a fair opportu­

nity of answering the case against him".3

Professor de Smith concludes that 'most of theeariiest reported

decisions in which the rule was applied concerned summary proceeding

before justices. Service of a summons upon the party affected was

regarded as a condition of the validity of such proceedings. Justices

who adjudicated without having issued a summons were at one time puni-
4
shable in the court of Kings Bench for Misdemeanour". It was held
5 6
so in R. v ^enables and R. v Alington.

The second line of case relates to the de privation of offices

and other dignities. Even the regulation of the clergy was also linked

with this group of cases. The learned Professor remarks that 'the

ninteen century decisions established that the audi alteram partem

rule was to govern the conduct of arbitrators of professionalJbodies

and voluntary associations in the exercise of their disciplinary

functions, and indeed of 'every tribunal or body of persons invested

with authority to adjudicate upon matters involving civil consequences

1. 1795, 6 T.R. 198.

2. 1828, 8 B.N.C. 528.
3. Vol. 1, p.420.
4. [Link]., 159o.
5, 1725, 2 [Link], 1405.
6. 1726, 2 STR. 678.
 554

to individuals’. The rule is still applied in such situations. One

who is expelled from membership of a club or similar association,or

from a trade union or who is excluded from pursuing his calling by

removal from a register or revocation of licence for misconduct or

a direction by his trade association to withhold from him essential

supplies, is prima facie entitled to have the decision set aside by

the courts unless he has been given adequate notice of the allegations

made against him and, a fair opportunity to reply to them. There are

indications that this principle may be applied with particular vigour

where the sanction imposed will deprive a person of his livlihood or

where there is a charge of discreditable conduct”.12

Some of the early cases have laid great emphasis on the observ-
2
ance of this rule. In Capel v Child , Lord Chief Baron Lyndhurst

observed that, "The party against whom the judgement is pronounced

has a right to be heard on the original judgement, he has a right to

be heard before the original judgement pronounced..•. According to

every principle of law and equity, such judgement could not be pron­

ounced or if, pronounced, could not for a moment be sustained, unless

the party in the first instance had the opportunity of being heard

in his defence".34 Bayley B. observed that it is considered invariable

maxim of law, that you cannot proceed against a party wihtou his

having the opportunity of being heard.... 1 know of no case in which

you are to have a judicial proceeding by which a man is to be depri­

ved of any part of his property without his having an opportunity

1. [Link]. ,pp.160-61.
2. 1832, 2 C.R. & J. 588, 149 E.R. 235.
3. Ibid at 243.
4. Ibid at 244.
 555

of being heard".1

The most important observation with regard to this rule, is of

Lord Chief Baron Kelley in Wood v Woad.2 He observed that, "But they

are bound in the exercise of their functions by the rule expressed

in the maxim audi alteram partem, that no man shall be condemned to

consequence resulting from alleged misconduct unheard and without hav­

ing the opportunity of making his defence, ihis rule is not confined

to the conduct of strictly legal tribunals, but is applicable to

every tribunal or body of persons invested with authority to adjudi-

3
cate upon matters involving civil consequences to individuals".

11Park B. quoted the seneca's lines

In Re Hammersmith rent charge45
10
9
8
7
6

of 'medea' and was of the view that the audi alteram partem rule was

the powerful principle of justice. The important cases that have

applied this principle are: exparte 1'homas Kinning3, R. v Templeman^,

7 8 9 10
R. v Simpson , R. v Francis and John Rogers , R. v Smith , R. v Neele ,
11 12
R. v Vicar of St. James Colchester , Doe v Gartham , R. v Governors
of Darlingston School13 R. v The justices of West Riding of iarkshire14

15 16
Painter v The Liverpool Oil Gas Light Co. , R. v John Wilson , Fisher
17 1R 19
v Lame , R. v Wilson , R. v The Bishop of London , Domina Regina

1. Ibid at 244. . 12. 25 R.R. 649.

2. L.R. 9 Ex. 190. 13. 66 R.R. 531.
3. Ibid at 196 14. 112 E.R. 590.
4. 4 Ex.87 at 97. 15. Ill E.R. 478.
5. 136 E.R. 605. 16. Ill E.R. 624.
6. 91 E.R. 54. 17. 95 E.R. 1065.
7. 88 E.R. 771. 18. Ill E.R. 624.
8. Ill E.R. 475. 19. 12 R.R. 393.
9. 5 Q.B. 614,64 R.R.590.
10. Easter tern 1835
11. Ibid.
 556

1 2
v Dyer , R. v Totnes Union , Robert Gruce v W.K.Wait5, R. v The Balli-
t ■ .4
ffs of Ipswich .

In Bonakar v Evans Park B. observed that, "For no propositions

can be more clearly established than that a man cannot incur the loss

of liberty or property for an offence by a judicial proceeding until

he has had a fair opportunity of considering the charge against him,

unless indeed the legislature has expressly or impliedly given an

authority to act without that necessary preliminary".5 Earlier, in
7
Painter's case Williams J. had opined that "The act, therefore, being

clearly judicial, the party against whom the application was made

should have had an opportunity of showing cause....ButI never heard

the propostion doubted, that a party is not to suffer in person or

g
in purse without an opportunity of being heard".

The other important cases of the period are: the Agincowra ,

12 R. v The
Kinning's case^, Hammond v Bindyshe11, J.D. Smit v R.1^,
10
9
8
7
6
5
4
3
2
11

Cheshire Lines Committee15, r. v Clegg1"1, R. v Kingston, upon - Hull

Rent Tribunal, exparte Black15. These cases show that the earlier

decisions were based on the judicial nature of the function, lhe

1. 91 E.R. 165.
2. 68 R.R. 539.
3. 1 M.& G.l
4. 92 E.R. 313
5. 16 Q.B. 162, 83 R.R.409.
6. Ibid at 171.
7. 3 A.D. & E.E.433, 111 E.R
* 478*
8. Ibid at 448-49. 13. g q.b. 1872-73,L.R.344.
9. 33 R.R. 717. 14. 8 Mod. Co.4,88 E.R. 3.
10. 10 Q.B. 730, 116 E.R.277. 15< x A11 e.R. 260
11. 13 Q.B. 869, 116 E.R. 1495.
12. 1878 A.C. 614.
 551

administrative functions were not included in that, though the audi

alteram partem rule was considered to be the fundamental principle

of the decisional process. In fact, Lord Esher M.R. used the word

•fundamental in Hopkins v Smethwick Local Board of Health^. Lord

Campbell termed this rule as ’’Principles of eternal justice11 and

Bayley J. has termed it as rule of ’common justice’?

Besides that Cooper v Wandsworth Board of Works^, Brutton v

Vestry of St. George s Honover, Squire also have held that if the

fundamental principles of justice are not followed the courts have

power to review the administrative decisions and to quash it if the

party affected by the decision has not been given an opportunity of

hearing. It is the proper or improper use of power or legality or

illegality of procedure that matters in the field of decisional

process. Prof. Wade has put it very rightly when he says th at',12
3Gran ted

that the discretion in exercising an administrative power belongs to

the administrator; yet the courts can insist that before acting he

shall at least find out the facts, and find out in particular whether

there is another side to the case. The wielding of power would indeed

be arbitrary if this were neglected and the courts have provided a

legal sanction to a canon of good administration by holding that

unless the other side is first considered the power is improperly

exercised. It is quite wrong to suppose that the rule is of little

value in practice because it gives merely an opportunity, as the

Attorney General has put it, for Ithe objector to 'blow off steam'.

1. 24 Q.B.D. 712 at 716.

2. Exparte Ramshay, 18 Q.B. 173 at 190(118 E.R. 65 at 71)
B. and C 772 at 786 (107 E.R.
3. Wiinams v uord Bagot, 3
4.1863, 14 C.B.(M.S.) 180.
5-p. 1871, L.R.13, Eq.339.
 558

Legally, the administrator is en-titled to disregard all that is said

to him and exercise his free discretion. But the courts well know

that, that is not how responsible officials act. The rule is a safe­

guard not against preversity but against well meaning ignorance or

carelessness a much more likely danger. The official, endowed with

power, is kept in the light leading strings of fundamental justice.

If he is only made to look fairly at the facts, that is the best

security against an unreasonable decision."12

3

Prof, de Smith is of the view that gradually the courts began

to exclude the discretionary function and removal at pleasure or in

accordance with specific statutory, contractual or customery proce­

dures, from their purview of judicial intervention. However, "In 1963

they were rescued from oblivian dressed in modern garb, by the House

of Lords. Since then, they have been expanded to cover ever-widening

2
categories of employees of public and quasi-public bodies".

Lord Diplock opines that the courts began to justify their

exercise of a power to annul administrative acts in the common law

doctrine of ultravires. "The doctrine of ultravires would never have

sufficed to justify the extension of judicial control of administrat­

ive action, without a contemporaneous change in the approach of the

judges to the interpretation of statutes! the reaction against a

literal construction of the words of individual sections of a statute

3
in favour of a purposive construction of the statute as a whole".

1. The Twilight of Natural Justice, 67, L.Q.R. 103 at 105-106.

2. Of. cit., p. 159.
3. Administrative Law; Judicial Review Reviewed,
33, C.L.J. 1974, 233 at 242.
 559

He gives four reasons for the change in the attitude of judiciary

with regard to the administrative functions.

1) The scope of the jurisdiction of the High Court to review

administrative action extends to all acts done in purported exercise

of powers conferred by statute.

2) lhe concept of errors of law which go to jurisdiction has been

expanded to include error of law which previously could only have

been reviewed if they appeared on the face of the record.

3) The growing tendency to give to Acts of Parliaments a purposive

construction has led to the extension of the concept of error of law

to include the exercise of a discretionary administrative power,

however, wide the authorising words themselves may be.

4) The principle has now been accepted that even if there is no

express provision to act in accordance with the principles of natural

justice the administrative discretion that affects the legal rights

or the material interests of private citizens, shall be used in

accordance with the rule of natural justice'.'1

Prof. Wade is of the opinion that it is true that the term

judicial, with which the rule of audi alteram partem was first concer­

ned, has the first and foremost importance in the judicial process,

but it is also true that gradually the courts began to apply this

rule to the bodies of more ambiguous status. "From there-and it was

here that the sense of judicial first began to be strained the arm

of the law reached out to the organs of local government, such as

[Link] at 242-243
 560

Vestries, Boards of Health and Boards of Works. The powers exercised

by these bodies were plainly administrative; but nevertheless the

courts called them judicial, so that they could apply to Jthem the

salutary pinciple that powers of any kind must not be exercised

without due inquiry into facts. In truth, of course, it was not Jthe

power which was judicial, but the procedure which the courts held

must be followed before the power could be properly exercised".

As has already been pointed out the rule dates from the period

which reports the development or present structure of the government.

Prof. [Link] writes that, "It would be an exaggeration to suggest

that natural justice must be observed whenever an official or public

body exercises a legal power. The duty arises in a variety of situa­

tions whenever it is particularly important to an individual directly

affected by the decision that a fair procedure should be observed.

Therefore, if the exercise of power directly affects a man's rights

or his property, or his character, it is more likely to be subject

to natural justice; so is a decision which follows a procedure invol­

ving the confrontation of two opposing views, in a manner comparable

2
to that of the litigation".

With the extension of the franchise and the decline of the

doctrine of laisez—faire in the latter half of the ninteenth century

came a vast increase in the regulatory functions of public authori­

ties, especially in the fields of housing and public health, lhe

1. The Twilight of Natural Justice: 67 L.Q.R. 103 at 106.

2. Constitutional and Administrative Law; 1987, 644.
 561

court began to supply the omission of the legislature where a statute

authorising interference with property or civil Irights was silent on

the question of hearing. Thus in Cooper v w.B. of Works^ while Willes

J. held that the audi alteram partem rule is "Of universal application

and founded on the plainest principles of justice". Byles J. remarked

". .•. although there are no positive words in a statute, requiring

that the party shall be heard, yet the justice of the common law will
23
supply the omission of the legislature".14

The Chief Justice Erie observed that, "I think the board ought

to have given notice to the plaintiff and to have allowed him to be

heard I cannot conceive any harm that could happen to the

District Board from hearing the party before they subjected him to a

loss so serious as the demolition of his house, but I can conceive a

great many advantage which might arise in the way of public order, in

the way of doing substantial justice and in the way of fulfilling the

purposes of the statute, by the restriction which be put upon them,

that they should hear the party before they inflict upon him such a
3
heavy loss".

The other cases which followed this case and applied the audi
4
alteram parted rule rigorously are: Smith v R. , Masters v Pontypoll

, Hopkins v Smethwick Board of Health , be

Local Government Board56

Verteuil v Knaggs^, Lapontie v L. Association de Bienfaisance et de

Retraite de la Police de Montreal8, Delta Properties Ltd. v Brisbane

1. Cooper v Wandworth Board of Works(1863)14 C.B.(N.S.) 180 at 190

143 E.R. 414 at 418.
2. Ibid at 194-420 of E.R. 7. 1918, A.C. 557.
3. Ibid at 189. 8. 1906, A.C. 535.
4. 1878, 3, [Link].614.
5. 1878, 9, Ch.D.677.
6. 1890, 24,Q.B.D. 712.
 562

City Council , Police Commissioner v Tanos^/ Sydeney Municipal Council

v Harris , Urban Housing Company v Oxford City Council1

45
3
2 , Hall v Manch-
8
7
6
5
ester Con .

Really speaking, the rule of audi alteram partem became more

important in the ninteenth century when England began to be governed

by Councils and boards exercising the powers committed to them by

modern statutes. At that time these bodies were concerned with rating,

licencing, public health and education. These bodies were confered

new adjudicatory functions, special tribunals were established and it

became difficult for the courts to compel these bodies to follow the

rules of natural justice. However, as Prof, de Smith points out, they

"super-imposed upon their statutory responsibilities the duty to act

judicially in certain situation in the manner prescribed by the rules

of natural justice. The best known statement of the audi alteram

partem rule in English Administrative Law was formulated by the House

of Lords in relation to the appellate functions of a government

deparrment"f

7
In Board of Education v Rice, Lord Loreburn made a statement
p
which is, "The most frequently quoted" statement. The Lord Chancellor

made the following statement: "Comparatively recent statutes have

extended, if they have not originated, the practice of imposing upon

departments or officers of State the duty of deciding or determining

1. 1956, 95 C.L.R. 11.

2. 1958, 98 C.L.R. 383.
3. 1912, 14 C.L.R. 1.
4. 1940, Ch. 70.
5. 1915, 84, L.J. Ch.732.
6. de Smith, [Link].,162.
7. 1911, A.C.179.
8. Wade, [Link]., p.506.
 563

questions of various kinds in such cases . ... they must act in

good faith and fairly listen to both) sides, for that is a diity lying

upon everyone who decides any thing. But 1 do not think they are

bound to treat such a question as though it were a trial. • • • 1'hey

can obtain information in any way they think best, always giving a

fair opportunity to those who are parties in the controversy for

correcting or contradicting any relevant statement prejudicial to

their view". Though, this case did not involve the breach of the

rule of audi alteram partem yet Lord Loreburn12

s “Epitome of the
7
6
5
4
3

general principle was so apt that it has been quoted with approval

again and agian. Experience has shown that there are remarkably few

true exceptions to this duty lying upon every one who decides any

thing, at any rate any thing which may adversely affects legal right
2
or liberties".

However, the dicta by Lord Loreburn though important, was not

followed and it was contended that the rules of natural justice were

not rigid norms of unchanging contents and their ambit may vary accor­

ding to the context. The important cases that held so are: Local
3 • 4
Government Board v Arlidge , Maclean v Workers Union , G.M.C. v
r 6 • 7
Spackman , Russel v Duke of Norfolk , Ceylon University v Fernanto ,

1. Board of Education v Rice, 1911, a.C. 179 at 182.

2. Wade, [Link]., 507.
3. 1915, A.C. 120.
4. 1929, 1 C.H. 602.
5. 1943, A.C. 627.
6. 1949, 1 All E.R. 109.
7. 1960, 1 W.L.R. 223=
 564

In fact, the pattern of applying this concept was so disturbed

that its significance was thought to be confined to the rhetoric only

*

Since its content could not be precisely determined, in Local Govern—

1
ment Board v Arlidge , The House of Lords held that a government

Department determining a housing appeal was not obliged to divulge

one of its inspector's reports to the appellant, even though the report

might well have contained relevant statements prejudicial to his case

which he might have wished to controvert.

This decision marked the beginning of a partial retreat by the

English courts from their earlier position - a retreat which was not

halted till 1960s. For nearly half a century they were to show a marked

reluctance to hold that an implied duty to give prior notice and oppor­

tunity to be heard was imposed on persons and authorities empowered

2
to make decisions in the general field of administrative law.

Taking into account such developments, as have come up in recent

years also, D.H. Clark has warned that "Alarmist though it may appear

the writer's conclusion is that the concept of natural justice has

almost accidentally arrived at a critical point in its development.

Invoked in recent years perhaps more frequently that at any other

period, it stands in danger of undergoing a metamorphosis that would

3
convert it into a mere slogan or ill defined aspiration".

1. (1915) A.C. 120.

2. de Smith, [Link]., 163-64.
3. Hatural Justice; Substance and Shadow,
1975, Public Law, 27 at 62-63.
 565

1
In Arlidge's case Lord Haldane, the Lord Chancellor reiterated

the principle that an opportunity of hearing must be given and that

the decision must be taken in the spirit and sense of responsibility.

However, his lordship made it clear that it does not, follow that

procedure of every such tribunal must be the same. In fact, the House

of Lords in that case stressed the limits that must be set to .the

judicialisation of administrative procedure. Prof. Wade says that,

2
"But they missed an important opportunity in setting their faces

against the disclosures of the inspector's report. It took over forty

years for this mistake to be corrected, when it finally came to be

understood that the supposed analogy between the report and any other

departmental papers was misconceived, and in the meantime there was

much public dissatisfaction at this unfairness in inquiry procedures.

Even now the law stands where the House of Lords left it in the Arlidge

case, and the necessary reforms have been made administratively, foll­

owing the report of the Franks Committee of 1957. The Arlidge case

was therefore a turning point, in which the law failed to keep abreast

of the standard of fairness which public opinion demanded rightly as

it turned out, in the procedure of government departments. The law

was, indeed, destined to fall still further behind before it returned

3
to its old course in Ridge v Baldwin in 1963".

4
Prof, de Smith terms this situation as the "Path of deviation".

He is of the view that the state of the law at the outbreak of the

first world war was that judicial tribunals empowered to deprive

1. (1915) A.C. 120.

2. [Link]., 508-509«>
3. (1964) A;C. 40.
4. [Link]., 164.
 566

persons of their liberty, imposed financial burdens upon them and

ascertain their legal rights had to observe the audi alterarn partem

rule. The Arbitrators and government departments were also to do that.

The rule was also to be applied where the trappings of adjudication

were present although the decision involved the exercise of wide dis­

cretion!

The 1Arlidge1 case was an opportunity for the court to give a

new dimension to the audi lateram partem rule but the House of Lords

did not do that. Prof. Allen pointed out that, "It was an opportunity

for the House of Lords to place much of our Administrative Law on a

sound basis - an opportunity not only last but threw away with both

hands".

P.
C. Seepersad terms this period as the period of "judicial inact-

ivism". He says that the cases decided during the (1915-60) period

*
are of doubtful authority. Besides Arlidge
s he cites Liversidge v
□ 4 5
Anderson , Franklin v M.T.P.C. , Maranda Mosque v Mahamud , Nakkuda
6 7
Aliv. Jayratne, R. v Metropolitan Polio Commissioner Exparte Parker.

He says that, "These cases were decided in the Hey Day of the three

fold classification of functions (judicial, quasi-judicial and admini­

strative) when matters administrative executive ministerial and those

relating to the withdrawal of a privilege or the exercise of discipli­

nary or domestic functions were ex-necessitate categorised as administ-

p
rative—thus ousting the audi alteram partem rule . In Eact, after

* Arlidge's in R. v Leman Street Police Station Inspector ex-parte

1. The Law and Order, p.244.

2. Fairness and Audi Alteram Partem,1975,Public Law, 242.
3. (1942) A.C. 206.
4. (1948) A.C. 87. 7. (1953) 1 W.L.R. 1150.
5. (1967) A.C. 13. 8. Supra Note 2 at 243
6. (1951) A.C. 65.
 567

Venicoff , the court refused to apply the rule of audi alteram partem

at all in a situation where it clearly ought to have been applied-

* In

fact, this decision foreshadowed the debilitation of the audi alteram

partem rule as a common law standard applied by the court to administ­

rative decision [Link], de Smith has given four reasons for such

situations:

(1) Emergency situation; (2) The existence of a wide policy discr­

etion vested in a minister responsible to parliament; (3) Absence of

judicialintruders in administrative process on assumption of rigorous

self restraint on the part of judiciary; (4) The power of ministers

being executive and non judicial, hence no neeed to act in accordance

with natural justice.

The learned professor also holds responsible the statutes of

for
that period/_decline of the audi alteram partem rule. The courts were

not prepared to be persuaded by the parties who were not given the

opportunity of the hearing that enabling Acts must be read to contain

the rule of audi alteram partem even in the absence of express provi­

sions to the effect. The courts tended to assume that a duty to

observe the rule of natural justice arose only when the authority was

already under statutory duty to consider objections or conduct an

inquiry in a prescribed manner”. In fact, it was held in Fregman v

□ 4
Minister of Health and Cohen v Westham Corporation that an owner

was not entitled to be heard by the local authority before it declare

a buidling to be included in a clearance area. Lord Goddard C.J. even

1’. (1920) 3 K.B. 72.
2. [Link]., 165-66.
3. (1935) 154, L.T. 240.
4. (1933) Ch. 814.
5. (1953) 1 W.L.R. 1150, at 1155.
 568

held that it was undesirable for the courts to control the exercise

of disciplinary powers by characterising them as judicial in v

Metropolitan Police Commissioner, ex-parte Parker.12

Mr. R.B. Cooke is of .the view that the right to hearing is a

must in the following situations:-

A. If the legislation defines the relevant power of language commonly

having curial associations.

B. If there is a power conclusively to decide questions of Maw and

facts, and hence to ascertain existing rights rather than create new

ones.

C. If an exercise of power involves the destruction or demolition

of property.

D. If the power is vested in an authority that ordinarily acts as

a court or tribunal.

E. In cases where common law or equity requires of a man a particu­

larly high standard of conduct.

of tge
F. In arbitrations cases where one/immediate objects in exercis­

ing a power is to settle a dispute between specific parties.

G. If an exercise of power involves a final, decision that a man has

2
been guilty of discreditable conduct.

Thus, the learned author criticises the decision of the R. v

Metropolitan polic Gommissionerand concludes that the decision in

that case is not based on the dicta of the important cases at common

1. (1953), 1 W.L.R. 1150 at 1155.

2. Natural Justice - Right to a Hearing; 1954, C.L.J. 14 at 17-19.
3 . ( 1953) 1 W.L.R. 1150.
 569

law. He says that, 11 It also follows that no attempt to state general

propostions as to when the rules apply can be more than tentative,

but unless such attempts are made from time to time the law relating

to natural justice will become almost entirely devoid of certainty11 •

Prof, de Smith regrets the decisions made by the courts in this

period which did not recognise the audi alteram partem rule. These

decisions were inconsistent with the general attitude of the English

courts towards the licensing and regulation of trades and occupations

2
and in general towards the right to earn one's living.

In fact, the courts began to analyse the functions on the ground

of its judicial trappings. The importance of analytical labels in

restricting the scope of the obligation to act judicially was to be

underlined in the years that followed. Its importance was enhanced by

Atkin L.J.'s much-quoted judgement in R. v Electricity Commissioners

Case' , wherein he defined the circumstances in which the writ of

certiorari would issue to quash the decisions of public bodies.

Certiorari (and prohibition) would issue to any body of persons having

legal authority to dermine questions affecting the rights of subjects,

and having the duty to act judicially. In natural justice cases this

dictum was generally understood to mean that a duty to act judicially

was not to be inferred merely from the impact of a decision on the

rights of subjects such a duty would arise only if there were super­

added an express obligation to follow a judicial type procedure in

4
arriving at decision.

1. 1954, C.L.J. 14 at 16.

2. [Link]., p.172.
3. (1924) 1 K.B. 171 at 204-205.
4. R. v Legislative Committee of the Church Assembly (1928)
1 K.B. 411 at 415,R.v Manchester Legal Aid Committee (1952)2 Q.B.413
 570

5 and R. v Metropolitan Police Commi-

In Nakuda All v Jayaratne12
4
3
2
ssioner ex-parte Parker . It was held that a licence was a privilege

and not a right and hence there is no dirty to act judical l.y. /Again in

Franklin v Minister of Town and Planning^ it was said that there was a

distinction between the situation where the decisions were taken acco­

rding to policy or executive discretion and those in which there is a

duty to act judicially. In Ridge v [Link]^ the position was clarified,.

The distinction between right and privilege was disapproved and obser­

vance of rules of natural justice was held to be implied from the

nature and effect of powers and not on the functions of the person.

In fact, the nature and effect of the power exercised was a point

emphasized by Prof. Wade when he wrote that, "What matters is the

nature oE the power itself, and it is not easy to understand, the allu­

sion in the judicial committees arguments to the relevance of other

powers which are primarily judicial or primarily administrative

Terminology is at the root of the problem, and if the previously

accepted terms, except though they were, are not to be used in new

senses, must not some definitions be attempted for Jthe guidance of

the many potential victims? Will it not be grievous loss if the natural

justice of the common law is thrown overboard at the time when it may

be of most service? If the new decisions are taken to their a logical

conclusions, there is a real danger that this may happen merely as

the result of failing to analyse the various senses in which judicial

5
has been used in our law".
I. (1951) A.C. 66.
2. (1953) 1 W.L.R. 1150.
3. (1948) A.C. 87.
4. (1964) A.C. 40.
5. The Twilight of Natural Justice; 67 L.Q.R. 103 at 109.
 571

This observance of Prof. Wade was lateron elaborated by Lord

Reid m Kidge v Baldwin.*12 However, as early as in 1778 in Calden v
2 .
Bull , Mr. Justice Chase of the U.S. Supreme Court had opined that,

"The obligation of the law.... must be determined by their 'nature

of power' upon which it is founded".3 In 1902 Eml in McClain also

ernphasizcd the neture of power? which is conf^n^d upon only deperrt—

ment, to be determining factor.4

RIDGE Vs BALDWIN

Ridge v Baldwin is an important Land Mark in the historical

development of the concept of natural justice. Allen 'has termed it

5
as 'Magnacarta of Natural Justice'. Lord Reid, who wrote the major­

ity judgement, expressed his view about this judgement in an inter­

view after bis retirement. He said that it was a decision which he

remembered with greatest satisfaction. The time has proved that

this judgement is worthy of that high honour. This decision gave a

powerful impetus to the emergent trend, an impetus which is not yet

spent in administrative law. It opened an era of activism in which

the courts have subjected the working of government to a degree of

judicial scrutiny, on substantive as well as procedural grounds,whic

shows little sign yet of diminishing. And where the courts are relu­

ctant to commit themselves to the proposition that there is an impli

ied duty to observe the audi alteram partem rule, they have often
1. (1964) A.C. 40. 5. Law and Order,p.242.
2. 3 U.S. 386 (1798). 6. The Times,14th Jan.,1975.
3. Ibid at 389.
4. Unwritten Constitutions in the United
States,15, H.L.R.531 at 540 (1901-02).
 571 (A)

insisted on observance of a more loosely formulated procedural duty

to "act fairly".1

Prof. Wade says that this case is, "Renaissance of Administrative

Law, a turning point of judicial policy. The House of Lords there

re-asserted as an essential part of the rules of administrative fair

play, the principle that a man is entitled to a fair hearing before

being made to suffer under statutory power".2

In this case, which is an important land mark in the development

of rule of Audi Alteram Partem, Lord Reid repudiated the notions that

the rules of natural justice applied only to the exercise of those

functions which were analytically judicial and that a super aided

duty to act judicially had to be visible before an obligation to

observe natural justice could arise in the exercise of a statutory

function affecting the rights of an [Link] emphasized that the

duty to act in conformity with natural justice could, in some situat­

ions, simply be inferred from a duty to decide what the rights of an

individual should [Link] this case the House of Lords had to consider

the interpretation of Section 191 clause 4 of the Municipal Corpora­

tion Act 1882 which provided that, "The watch committee, or any

two justices having jurisdiction in the borough, may at any

time suspend, and the watch committee may at any time

dismiss, any borough constable whom they think negligent

in the discharge of his duty, or otherwise unfit for the same'.'

1. de Smith, [Link]., p.175.

2. Constitutional Fundamentals 1980, London,p. 62-63.
 572

The fact of this case is that in 1957 the appellant, at that

time chief constable of Brighton was charged together with other

persons with conspiracy to obstruct the course of justice. He was

acquitted by the Jury, but two polic officials were convicted. However

Donovan J. twice took opportunities to comment adversely on the Chief

Constables leadership of the force. After his acquittal the appellant

appealed to be reinstated in his post as Chief Constable, from which

he has been suspended, but the watch committee, without giving any

notice or offering any hearing to the Chief Constable, unanimously

dismissed him from office. His solicitor then applied for a hearing

and was allowed to appear before a later meeting. The committee conf­

irmed their previous decision. The Chief Constable appealed to the

Home Secretary, but his appeal was dismissed. He went to the court

and sought a declaration that his dismissal had been illegal and void.

Mr. Justice Streatfeild of the High Court came to the conclusion that

the watch committee had acted in a manner which was in accordance with

the principles of natural justice. The court of appeal affirmed the

judgement of the High Court but it gave a different ground. It held

that the watch committee, in exercising its power under Section 191(4)

of the Act of 1882 was performing an administrative function so that

the principles of natural justice were not applicable. It also iheld

that the plaintiff by appealing to the home Secretary, has lost his

right of recourse to the High Court. The appellant was granted leave

to appeal to the House of Lords, which allowed the appeal holding by

a majority (Lord Evershed dissenting) that the decision of the watch

 573

committee had been void, and that therefore the affirmation of that

decision by the Home Secretary had also been a nullity.

I

The House of Lords was of the view that a power which affects

rights must be exercised judicially i.e. fairly and the fact that the

power is administrative does not make it any the less judicial for

this purposeo Thus Lord Hodson observed that, “The answer in a given

case is not provided by the statement that the giver of the decision

is acting in an executive or administrative capacity as if that were

the antithesis of a judicial capacity. The cases seem to me to show

that persons acting in a capacity which is not on the face of it

judicial but rather executive or administrative have been held by the

courts to be subject to the principles of natural justice".12

Lord Heid stated in this case about audi alteram partem that,

“The principle Audi Alteram Partem goes back many centuries in our

law and appears in a multitude of judgements of judges of the highest

authority. In modern time opinions have some times been expressed to

the effect that natural justice is so vague as [Link] practically mean­

ing less but I would regard this as tempted by the perennial fallacy

that because something cannot be cut and dried or nicely weighed or

2
measured therefore it does not exist".

Lord Reid reviewed the authorities which are milestones upon the

road giving full prominence to all these principles. "His review of

the authorities exposed the fallacies into which the decisions of

1. 1964, A.C. 40 at p. 130.

2. Ibid at p. 64-65.
 574

1950s had lapsed. ’He attacked the problem at its root by demonstrat­

ing how the term'Judicial' had been misinterpreted as requiring

some super added characteristics over and above the characteristic

that the power affected some person’s rights. The mere facts that

the power affects rights or interests is what makes it judicial/ and

so subject to the procedures required by the natural justice1

11

Lord Reid concluded in that case that an officer cannot lawfully

be dismissed without first telling him what is alleged against him

and hearing his defence or explanation. The important cases that he

o
reviewed are; Cooper v Wandsworth Board of Works \ HopkJns v Smethwick
Local Board of Health \ Smith v The uueen\ the Bevertual v Knaggs^,
6 7
Spackman v [Link] of Works , Wood v Woadz, -Lapointe v [Link]
8 S
de Bienfaisance et de Retrate de la Police de Montreal , Fisher v Reane7
10 11
Dawkins v Antrobus , Weinberger v Inglis , After reviewing these

cases Lord Reid came to the conclusion that, 11 It appears to me that

if the present case had arisen thirty or forty years ago the courts

would have had no difficulty in deciding this issue in favour of the

appellant on the authorities which I have cited. So far as 1 am aware

12
none of these authorities has ever been disapproved or even doubted.

1. Wade [Link]., p.518.

2. (1863) 14C.B.(N.S.) 180.
3. (1890) 24, Q.B.D. 712.
4. (1878) L.R. 3 [Link]. 614 FC.
5. (1918) A.C. 557 PC.
6. (1885) 10 A.C. 229, H.L.
7. (1874) L.R. 9,Ex. 190.
8. (1906) A.C. 535, PC.
9. (1878) 11, Ch.D. 353.
10. (1879) 17 Ch.D. 615.
11. (1919) A.C. 606,H.L.
12. (1964) A.C. 40, at 72.
 575

Lord Reid was of the view that there were three reasons that

were responsible for the retreat of the rule of audi alteram partem.

1) has been held that the principles of natural justice have

limited application in cases where the wider duties have been imposed

on ministers and other organs of government by modern legislation.

2) War time legislation.

3) Misunderstanding of the judgement of Atkin L.J. in R. v Electri-

1
city Commissioners, Ex—parte London Electricity Joint '•-[Link] Co.,

Lord Atkin observed that wherever, any body of persons "Having

legal authority to determine questions affecting the rights of subjects

and having the duty to act judicially, act in excess of their legal

authority, they are subject to the controlling jurisdiction of the

2
King Bench Division exercised in these writs". A gloss was put on

this by Lord Heward C.J. in R. v Legislative Committee of the Church

3
Assembly, Ex-parte Haynes-Bmith Lord Hewart observed in that case

that, "In order that a body must satisfy the required test, it is

not enough that it should have legal authority to determine questions

affecting the rights of subjects, there must be super added to that

characteristic the further characteristic that the body has the duty
'to act judicially".4

Lord Reid opined that, "If Lord Hewart meant that it is never

enough that a body simply has a duty to determine what the rights of

an individual should be but that there must always be something more

1. (1924) 1 K.B. 171.

2. Ibid at 205.
3. (1928) 1 K.B. 411.
4. Ibid at 415.
 5 76

to impose on it a duty to act judicially before it can be found' to

observe the principles of natural ljustice then that appears to me

impossible to reconcile with the earlier authorities".^

Lord Heid emphasized the universality of the rule and was of the

view that whether the cases concerned property or tenure of an office

or membership of an institution they were all governed by one princi­

ple. He said that, "We do not have a developed system of administrat­

ive law perhaps because until fairly recently we did not need it....

But 1 see nothing in that to justify our thinking that our old methods

are any less applicable today than ever they were to the older types

of case. And if there are any dicta in modern authorities which point
2
in that direction then, in my judgement, they should not be followed."

He concluded in the last that, "I would sum up my opinion in this way.

Between 1882 and the making of police regulations in 1920, section 191

(4) has to be applied to every kind of case. The respondents' content­

ion is that, even where there was a doubtful question whether a const­

able was guilty of a particular act of misconduct the watch committee

were under no obligation to hear his defence before dismissing. In

my judgement it is abundantly clear from the authorities I have quoted

that at that time the courts would have rejected any such contention.

In later cases dealing with different subject-matter, opinions have

been expressed in wide terms so as to appear to conflict with those

earlier authorities. But learned judges who expressed those opinions

generally had no power to overrule those authorities and in any

1. (1964) A.C. 40 at 72.

2. (1964) A.C. 40 at 72.
 577

event it is a salutary rule that a judge is not to be assumed to have

intended to over rule on disapprove of any authority which has not

been cited to him and which he does not even mention, ^o, I would hold

that the power of dismissal in the Act of 1882 could not then have

been exercised and cannot now .. .exercised until the watch committee

have informed the constable of the grounds on which they propose to

proceed and have given him a proper opportunity to present his case
in defence.......... " .12

Thus, we see that Ridge v Baldwin reestablished the requirement

for administrative authroties to adhere to those basic rules of natur­

al justice. We do not say that it has solved the whole problem in

this field. In fact, 1Benjafield and Whitmore', point out that the

decision of House of Lords leaves two areas Still clouded with doubts,

(1) There are several cases in which it has been held that the audi

alteram partem rule does not apply because no 'right' of a citizen

has been affected but merely a 'licence' or 'privilege' withdrawn or

refused;

(2) Lord Reid takes up the point that the status of an authority and

the degree to which it is free to apply he dictates of a policy which

may be determined independently of the facts of the particular case

presented are relevant in determining what is required to constitute

a fair hearing. "It is vital to realise that these same considerations

must be relevant in determining whether there is any obligation to

give a hearing at all. At the present juncture it is necessary to

point out that the higher the status of the officer concerned in the

1. Ibid at 73-74.
2. (1964) A.C. 40.
 578

governmental structure, and the more closely allied with the policy

of government are the considerations which he must take into account,

the concept of a fair hearing approaches to vanishing point"* The

learned authors suggest that the courts should base their approach

on some more predicatable basis such as that suggested by Prof. K.C.

Davis in his book Administrative Laws Treaties."In his opinion the

governing distinction in situations of this nature should be one

between adjudicative and legislative facts. The essence of this dist­

inction is that a hearing should always be given as to matters pert­

aining directly to the parties but that, in relation to policy matters,

the most that could be required, would be opportunity to submit

3
argument",

Prof, de Smith wrote that, "But it would be imprudent to assume

that we have suddenly leapt from twilight to a new dawn, that our

familiar judicial administrative dichotomy has been scrapped. Neverthe­

less, the general tenor of the judgements delivered by Lord Heid, .

Morris and Hodson shows an awareness that courts have been straying

from paths of righteousness and a readiness to determine the proper

scope of judicial review by reference to considerations of principles

and rationality rather than formula, analytical categories. They

reflect a significant change in judicial attitudes, a belated 'amende

honourable' for the unimaginative years. Yet the immediate impart of

the decision on the scope of the audi alteram partem rule itself may

not be striling, for nowadays the exercise of the vast majority of

1. 37 Australia Law Journal, 1963, p.140.

2. Ibid.
3. Vol.I, 1958, p.506.
 579

administrative powers directly affecting individual rights is conditi­

oned by express procedural safeguards imposed by statute or regulat-

1
ions •

In fact the learned author suggested that it would have been

more satisfactory, If the courts were to focus their attention prim­

arily on questions such as the adequacy of the hearing on appeal and

the powers of the appellate tribunal and on assessing the relative

weights attributable to the enforcement of high standards of admini­

strative conduct and the discouragement of reports to the courts

where no substantial justice appears to have been done". Prof. A.L.

Goodhart also criticised the judgement of the House of Lords in Ridge’s

case on the ground that administrative functions may be hindered

because of the application of this rule in administrative functions.

"It is", he says, "the question of natural justice which is of special

importance in this case. No one can doubt that natural justice, i.e.,

a fair trial, is of the utmost importance, but on the other hand it

is also important to remember that those performing administrative

functions must not be unduly hindered in the performance of their

duties by holding that an invasion of an individual, interest must

3
always give rise to a judicial or quasi-judicial hearing". However,

administrative conveniences should not be the criteria on which the

rule of audi alteram partem is to be judged. We must remember the

famous dicta of Lord Atkin uttered in General Medical Council v

Spackman4 that, "If this is inconvenient it cannot be helped.

1. Notes of cases 'The House of Lords on Natural Justice ,

26, The Modern Law Review, 543, at 545-546.
2. Notes of cases, 25, The Modern Law Review, 455 at 457.
3. Ridge v Baldwin; Administration & Natural Justice; 80 L.u.R.,105
A 115-
4. (1943) A.C. 627.
 580

Convenience and justice are often not on speaking terms”.12

5 It is
4
3

surprising that the academicians chose to give unfavourable comment

on this beneficial decisions. Much water has flown in Thames since

then and the courts have given much importance to the dicta of Lord

Reid in that case. The other authorities have been discarded. Thus,

Lord Denning observed in R. v Gaming Board for Great Britain ex-parte

2
Benaim and Khaida that at one time it was said that the principles

of (natural justice) only apply to judicial proceedings and not to

administrative proceeding. That hersey was scotched in Ridge v

3
Baldwin'e At another time it was said that the principles do not apply

to the grant or revocation of licences. That too is wrong. R. v Metro-

4
politan Police Commissioner ex-parte Parker and Nakkuda ^li v Jaya-
5 6
ratne are no longer authority for any such proposition”.

7
The privy council observed in A.G. v Ryan that "The minister

was a person having legal authority to determine a question affecting

the rights of individuals.- This being so it is a necessary implicati­

on that he is required to observe the principles of natural justice

when exercising that authority, and if he fails to do so, his

g
purported decision is a nullity".

Lord Diplock said that the right of a man to be given "A fair

opportunity of hearing what is alleged against him, and presenting

of his own case is so fundamental to any civilised legal system that

1. Ibid at 638.
2. (1970) 2 Q.B. 417. 6. Supra Note 2 at p.430.
3. (1964) A.C. 40. 7. (1980) A.C.718.
4. (1953) 1 rt.L.R. 1150. 8. Ibid at 730.
5. (1951) A.C. 66.
 581

it is to be presumed that Parliament intend that a failure to observe

it should render null and void any decision reached in breach of this
requirement11 •

This decision of Ridge v Baldwin has extended the range of

natural justice. The protection of natural justice now extends to

those affected by decisions of stock exchange^ take over pannel and

other cases. The other cases that have followed the trend set by House

of Lords in that case, are, Rewest Minister C.C.

3
Council of '-ivil service Unions v Minister for the Civil Service,

R. v Secretary of State for the Environment exparte Nottinghamshire

4 . ,
C.C. , R. v Enfield London Borrough Council ex-parte T.F. Union
s
(Roydan Ltd.).

Thus, we see that Ridge v Baldwin is a land mark case in the

development of administrative lav; and concept of natural justice. The

direct result of this judgement was the amendment in the Municipal

Corporations Act, 1882. The Police Act 1964 Sections ss 5(4),(5), 29

repealed both sections 191 (4) and 194 of that Act. A right of hearing

was conferred. The pace with which the rule of audi alteram partem

has been applied in the administrative cases after Ridge v Baldwin

has led Lord Morris of Borth-Y.-<^es t to remark that, "We can, I think

take pride in what has been done in recent periods, and particularly,

in the field of administrative law by invoking and by applying those

principles which we broadly classify under the designation of natural

1. 0,Reilly v Mackman, 2 A.C. 237, at 276.

2. (1986) A.C. 688 at692.
3. (1985) A.C. 374.
4. (1986) A.C. 240.
5. The Times, 16.2.89.
 582

justice. Many testing problems as to their application yet remain to

be solved. But I affirm that the area of administrative action is but

one area in which the principles are to be deployed. Nor are they to

be invoked only when procedural failures are shown. It denotes that

the law is not only to be guided by reason and by logic; but that

its purpose will not be fulfilled if it lacks more exalted inspirat­

ion" . 1

The Doctrine of Legitimate Expectation:

The doctrine of legitimate expection is one of the new facets of

the rule of audi alteram partem. Since the decision of Ridge v Baldwin

the courts in England have been imposing a general duty to act reason­

ably and fairly. A person may not have a legal right but his private

interest of a status may be accorded procedural protections against

administrative abuse and unfairness. A person, though devoid of legal

rights may be entitled to some kind of hearing if his interest rises

to the level of a legitimate expectation. Prof. Robert [Link] points

out that, "The emerging doctrine of legitimate expectation is but one

aspect of the duty to act fairly, but its origin and development

!• Current Legal Problems, vol. 26,p.l.

 583

reflect many of the concerns and difficulties accompanying the broader

judicial effort to promote administrative fairness. As such, it provi­

des a useful window through which to view judicial attempts to mediate

between individual interests, and collective demands in the modern

administrative state".1

"The legitimate expectation doctrine is an outgrowth of cases

expounding the notion of natural justice and it has developed primarily

as a means of extending the reach of procedural protections to admini­

strative decisions not previously believed to require a hearing. Chara­

cteristically, the notion of legitimate expectation is used as a test

of when the rules of natural justice must be applied. Viewed in this

light, the concept performs a function comparable to that of liberty

and property in American due process jurisprudence. If a liberty or

property interest is found, the protections of the due process clause

of the United States Constitution may be invoked. Similarly, in English

law a person's legitimate expectation may be a threshold for determin­

ing whether the procedural protections of natural justice or the duty

to act fairly are required." E.C.S. Wade and Bradley say that, "Natur­

al justice must be observed when an individual has a legitimate expect­

ation of being heard".23 In the fifth edition of his constitutional and

Administrative Law, de Smith says that the rules of natural justice

are applied, ’’Where a reasonable citizen would have a legitimate

expectation that the decision making process would be subject to same

3
rules of fair procedure”.

1. Ibid at p. 397-98.
2. Of. cit., p. 649.
3. 1985, p.582.
 584

Lord Bridge says that, "The courts have developed a relatively

novel doctrine in public law that a duty of consultation may arise

from a legitimate expectation of consultation aroused either by a

promise or by an established practice of consultation".^

The doctrine of legitimate expectation was recognised in early

part of the 20th century by the English courts. At that time England

had not a developed system of administrative law. Neveretheless the

courts tried to protect the interest of those who might not have a

substantial right from the arbitrary power of the authorities concer­

ned. It was realised that though the decision of the authorities or

bodies may not alter rights or obligations of a person enforceable

in private law, yet they may deprive a person of Legitimate expect­

ations and it is here that the court must interfere to safeguard the

legitimate expectation of that person. Thus Lord Atkinson observed

in Weinberger v Inglis that, "An existing member has no legal or

equitable right or claim to be reelected for the year succeeding his

year of actual membership, though, no doubt, he may hope or expect

3
that he will be reelected".

In that case, Lord Wrenburry observed that, "On the other hand

he enjoys an anticipation, and I have no doubt a very well founded

anticipation.... he has no legal right of continuouance but resting

upon sound business consideration which he must be taken to have

4
considered satisfactory when he paid his entrance fee .

1. Rewestminister C.C. 1986, A.C. 668 at 692.

2. (1919) A.C. 606.
3. Ibid at 622.
4. Ibid at 644.
 585

It is, of the utmost importance tolnote that an Indian judge of

the Lahore High Court, Mr. Justice A. Rashid, contemplated the idea

of an implied assurance or expectation of entering the club by the

registration or the Horses by the R.C.T. Club. He observed/ “To stun

up the whole case T. am of the opinion that by registering Horses the

club gives an inplied assurance to the Horse owner that their horses

will be allowed, to enter for the races conducted by the Turf Club
1
unless their enteries are refused or cancelled by the Stewards'12
4•
3

Credit/ however/ goes to Lord Denning for implanting this tender

plant of legitimate expectation on the fertile soil of the administ­

rative law. Lord Roskill says that/ “The introduction of the phrase

’Reasonable expectation’ into this branch of our administrative

law appears to owe its origin to Lord Denning M.R. in Schmidt v

2
Secretary of State for Home Affairs , when he used the phrase

legitimate expectation”. In his judgement in that case Lord

Denning has not mentioned any authority upon which his concept of

legitimate expectation can be founded. He on the other hand is of

the view that it/ “came out of my own head and not from any

continental or other source”• Thus, we can conclude that his

1. R.C.T. Club v Kishenchand/ A.I.R. 1942/ Lahore 179 at 185.

2. (1969) 2 Ch. 149. , .
3. C.C.S.U. v Minister for Civil Service (1985) 1 A.C. 374 at 416.
4. Opinion expressed in a letter dated 10th January/ 1987 to C.F.
Forsyth C.L.J. 1988/ 238 at 241.
 586

doctrine comes out of the creative mind of that great judge.

Lord Denning observed [Link]'s case1 that, "The speeches in

2
Ridge v Baldwin show that an administrative body may, in a proper

case, be bound to give person who is affected by their decision an

opportunity of making representations. It all depends on whether he

has some right or interest, or I would add, some legitimate expect­

ation of which he has to say.... If his permit is revoked before the

time limit expires, he ought I think, to be given an opportunity of

making representations. For he would have a legitimate expectation of

3
being allowed to stay for the permitted time".

After this important case the doctrine of legitimate expectation

has played an important part in many decisions concerning administrat­

ive law. The important decisions that have talked of the legitimate
4
expectation doctrine are: Breen v A.E.U. , R. v Liverpool Corporation,
5
Exparte Liverpool Taxi Fleet Operatiors Association , R. v Barnsley
M.B.C. exparte Hook6, A.G. of Hongkong v Ngyuenshiu7, Findlay v the
g
Secretary of State for the Home Department, Exparte Kahn , R. v Brent
9
London Borough Council, Exparty Gunning , R. v Secretary of State for
Transport Exparte Greater London Council^ , Mcinnes v Onslowfane
12
Cinnamond v British airports Authority , R. v Secretary of State for
the Home Department, exparte Ruddock13, R. v Secretary of State for

1. Supra Note 1 at 170.

2. (1964) A.C.40.
3. Supra Note at 171.
4. (1971) 2 Q.B. 175. , , „
5. (1972) 2 Q.B. 299. 11. (1978) 1 W.L.R. 1520.
6. (1976) 1 W.L.R. 1052. 12. (1980) 1 w.L.R. 582.
7. (1983) 22 A.C.
7. (1983) A.C. 629.
629. 13« (I987) 2 A11 E,R* 518
8. (1985) A.C. 318.
9. (1986) 84 L.G.R. 186.
10. (1986) Q.B. 556.
 587

the Home Department exparte Oloniluyi1, Lakin Limited v Secretary of

2 q
State for ocottland , dalemi v Mackellar , Minister for Immigration
and Ethnic Affairs v Hajismail^/ HeatJLey v Tasmanian Racing and
5 6
Gaming Commission , R. v Mackellar, exparte Ratu and others , Forbes
v New South Wales Trotting Club Limited?, kioa v Minister for Immigr-
CJ Q
ation and Ethnic Affairs , O'Reilly v Hacman , C.C.S.U. v Minister
10
for the Civil Service , R. Secretary of State for Home Department
11 19 ' 13
Exparte Kahn , Lloyd v MacMohan , Leech v [Link] Governor ,
14
Gillie v [Link] W.H. Authority

The doctrine of the legitimate expectation pastulates that where

a person claiming some benefits or privilege has no legal right to

it, he may have a legitimate expectation of receiving the benefit or

privilege, in which event the court will protect his expectations by

judicial review.' Lord Denning emphasized this aspect in R. v Liver-

pool Corporation's case . He clearly laid down that a corporation

cannot give an undertaking and break it as they please. In fact, the

legitimate expectations is the legitimate child of the welfare state

where the courts are the guardians of the individual interests. The

courts began to be willing to protect expectations that fall short

of traditional properties act. The legitimate expectations emanates

from the relationships with government where the government provides

welfare benefits, employement and valuable contracts. It is a very

1. The Times. November 26,1988 C.A.

2. (1988) S.L.T. 780. 9. (1983) 2 A.C. 237.
3. 137 C.L.R. 396. 10- (1985) A.C. 374.
4. (1982) 40 A.L.R. 341. 11. (1984) 1 W.L.R. 1337.
5. (1977) 137 C.L.R. 487. 12. (1987) 2 W.L.R. 821.
6. (1977) 137 C.L.R. 461. 13. (1988) 2 W.L.R. 290.
7. (1979) 53 A.L.J.R.536. 14. (1986) 1 A.C. 112.
8. (1985) 62 A.L.R. 321. 15. (1972) 2 Q.B. 299.
 588

powerful mean in the hands of the court to safeguard the public inte­

*
rest The court no longer can confine itself to the right-privilege

dichotomy and it has become pious duty of the court to protect even

the legitimate or reasonable expectations. Prof. Reich thus wrote in

1964, just after thedecision of the Ridge v Baldwin12

5 that,
4
3 ’‘Ahead

there stretches to the farthest horizon - the joyless landscape of

the public interest state. The life it promises will be comfortable

and comforting. It will be well planned with suitable areas for work

and play. But there will be no precincts sacred to the spirit of indi-
2
vidual man”. He says that income and benefits, jobs, occupational

licence, frenchises, contracts subsidies, use of public resources and

services are the government created wealth, which are to be protected

by the courts.

These interests are to be protected even though they go beyond

enforceable legal rights. The only condition is that the said expect­

ation must have some reasonable basis. A person may have some legiti­

mate expectation, though he may not posses legal rights to enformce

that expectations. Lord Parker C.J. thus observed in R. v Criminal

4
Injuries Compensation Board Ex-parte Lain that, "I cannot think that

Atkin L.J. intended to confine his principles in cases in which the

determination affected rights in the sense of enforceable rights".

The courts are of the view that the legitimate expectations are steps

as a result of which legally enforceable rights may be affected.

1. (1964) A.C. 40.

2. "The New Property" 73 Yale Law Journal, 734 at 778.
3. Ibid at 737.
4. (1967) 2 U.B. 864.
5. Ibid at 881.
 589

In 1939/ in R. v Boycott and others ex-parte Reas ley1 the Chief

Justice Lord Hewart emphasized this and observed that, "The matter

arises in this way, and it is of great importance to the individual

concerns, because it affects, and closely affects, the present posit—

2
ion and future prospects of a body now about eleven years of age11 •

It was not his legal right but it affected his legally enforceable

right to be admitted in class. The court accepted the reasonable

expectation of a prisoner of receiving remission of sentence, though

□
he had no legal right to remission. Lord Diplock observed in O'Reilly
4
v MacMohan that, "In public law, as distinguished from private law,

however, such expectations gave to each appellant a sufficient

interest to challenge the legality of the adverse disciplinary award

made against him by trie board on the ground that in oneway are another

the board in reaching its decision had acted without powers conferred

upon it by the legislature under which it was action, and such grounds

would include the boards failure to observe the rules of natural

justice" .

It is not correct to say that since legitimate expectation does

not give any concept of rights, it can not be a ground for setting

aside a decision. There is no force in the observation of Chief Justice

Barwick in Salemi v Mackllar6, that "But no matter how far the phrase

may have been intended to reach at its centre is the concept of legal­

ity, that is to say, it is a lawful expectation which is in mind. I

cannot attribute any other meaning in the language of a lawyer to the

I. (1939) 2 All E.R. 626.

2. Ibid at 628.
3. R. v Board of Visitors of Hull Prison,Ex-parte St. Germain
(2)(1979) 1 W.L.R. 1401. 6. (1977) 137 C.L.R. 396.
4. (1983) 2 A.C. 237.
5. Ibid at 275.
 590

word legitimate than a meaning which expressed the concept of

entitlement or recognition by law, so understood, the expression

probably adds little, if anything, to the concept of a right11. In

Heatley v lasmanian Racing Gaming Commission^the learned Chief

Justice reiterated his view of legitimate expectations. He proceeded

to disallow any legitimate expectation the plaintiff might have clai­

med to be permitted on to a race cource open to the public. He says

that such a person might have a reasonable expectation or an expect­

ation which is justifiable in human terms of returning to his home

but it was not a lawful expectation. However, the attempt of the

learned Chief Justice on equating a legitimate expectation with a

4
lawful expectation did not succeed and in Rorbes case the learned

Chief Justice based his reasoning substantially on the notion of

proprietary rights overriding any demand for natural justice. It is

also to be noted that the English cases have not made such observat­

ions and have insisted that the mere legitimate expectation made the

ground for setting aside the decisions and this legitimate expectation

has become one of the important facets of a right to be heard. In 1978

in Mcinnex v Onslow Fane, Sir Robert Megarry, V.C. has made it clear

that the concept of legitimate expectation does more than giving the

applicant the local standai to apply for judicial review. Professor

6
oykes and Tracey hold the same view.1
6
5
4
3
2

1. Ibid at p.404.
2. 137 C.L.R. 487.
3. Ibid at 491-92.
4. 53 A.L.J.R. 536..
5. (1978) 3 All E.R. 211. _„Q
6. N.J. and Atkin formula. 10 H.L.R. 564 at 579
 591

Sir Robert Negarry has made the concept of legitimate expectat­

ion trie intermediate category in which the court can intervene in the

decision of authorities. He says that, "There is an intermediate

category, which may be called the expectation cases, which differ

from the application cases only in that the applicant has some legi­

timate expectation from what has already happened that his applicat-
i
ion will be granted.

Professor de Smith is of the view that, "It may therefore be

right to imply a duty to hear before a decision not to renew when

there is a legitimate expectation of renewal, even though no such

duty is implied in the making of the original decision to grant or

2
to refuse the licence".

Chief Justice Earl of Reading observed in R. v Housing appeal

3
tribunal that, "The extent of right might not be the same before

both tribunals,.... yet there was expectation that tribunal would

give an opportunity of -hearing"^ the other earlier cases that have
5 6
held so are Knapman v Board of Health, Lee v Peterdon , Fair Bairn
7
v Highway traffic board of Sasketchevan. In Rewatt and. Registrar of
P 9
Motor Vehicle t Kuymchuch v Cowaan , R. v City of ^algrey, exparte
11
Sanderson^ in ReHalliwell and Welfare Institutions Board , Banks

v Transport Regulation Board

1. (1978) 3 All E.R. 211 at 218.

2. [Link]., at 224.
3. (1920) 3 K.B. 334.
4. Ibid at 342. 10. (1966) 53 D.L.R.(Ilnd)477.
5. (1954) 3 D.L.R. 760. 11. (1966) 53 D.L.R.(Ilnd)754.
6. (1954) 4 D.L.R. 821. 12. (1968) 119 C.L.R. 222.
7. (1958) 11 D.L.R.709.
8. (1958) 13 D.L.R.124.
9. (1964) 45 D.L.R.587.
 592

1
Lo.r.d Denning observed in Cinnamond v British Airports Authority/

“But it only applies when there is legitimate expectations of being

heard. In cases where there is no legitimate expectation there is no

2
call for a hearing ♦ Lord Denning had already observed the same in
3 4
R. v Naming Board and in Norwest Hoist v Secretary of State for Trade/

In Norwest Holst case the Geoffrey Lane L.J. also mentioned the doct-
rine of legitimate expectation^

Nicholson J. has remarked in the Boesak's case6 that, "Now in

England and Australia the courts have long accepted the existence of

a legitimate expectation as a ground for a hearing, even recent South-

African cases have evidenced a judicial willingness to use the legit­

image expectation doctrine in order to rescue the rules of natural

7
justice from sterility.

Lord Scarman is of the view that, “The doctrine of legitimate

expectation has an important place in the developing law of judicial

review. It is, however, not necessary to explore the doctrine in this

case, it is enough merely to note that a legitimate expectation can

provide a sufficient interest to enable one who cannot point to the

existence of a substantive right to obtain the leave of the court

Q
to apply for judicial review".

1. (1980) 1 W.L.R. 582.

2. Ibid at 590.
3. (1970) 2 Q.B. 417 at 430.
4. (1978) Ch. 201 at 224.
5. Ibid at 230-31. „
6. The Cambridge Law Journal, vol. 47, 1988, 189 at 191.
L In ^e?'rn^?ay (1985) A.C. 318 at 338.
 593

Lord Roskill has observed in Council of Civil Service Union v

Minister for the Civil Service12 that, "The particular manifestat­

ion of the duty to act fairly which is presently involved is that

part of the recent evolution of our administrative law which may

enable an aggrieved party to evoke judicial review if he can show

that he had a reasonable expectation of some occurrence or action

preceding the decision complained of and that [Link] reasonable expect­

ation was not in the event fulfilled 1 prefer the use of the

adjective 'legitimate' even though in argument it was the adjective'

'reasonable' which was generally used. The principle may now be said

to be firmly entrenched in this branch of the law. As the cases show

the principle is closely connected with "a right to be heard" such

an expectation may take many forms. One may be an expectation of

prior consultation. Another may be an expectation of being allowed

time to make representation specially where the aggrieved party is

seeking to persuade an authority to depart from a lawfully establish­

ed policy adopted in connection with the exercise of a particular

power because of some suggested exceptional reasons justifying such

2
a departure".

Lord Diplock has tried to maintain a realistic balance between

effectiveness of administration and justice for the individual by

limiting the judicial review for denial of a legitimate expectation

to cases where the complainant has been deprived of some benefit

which either;(1) He had in the past been permitted by the decision

1. (1985) A.C. 374.

2. Ibid at 415.
 594

maker to enjoy and which he can legitimately expect to be permitted

to continue to do until there has been communicated to him some rat­

ional grounds for withdrawing on which he has been given an opportu­

nity to comment, (2) He has received assurance from the decision

maker that they will not be withdrawn without giving himfirst an

opportunity of advancing reasons for contending that they should not

be withdrawn. I prefer to continue to call the kind of expectation

that qualifies a decision for inclusion in class 'b' a legitimate

expectation.

Lord Diplock preferred to call the kind of expectation as a

'legitimate expectation' rather than a 'reasonable expectation! He

has mentioned three grounds on which the judicial review of admini­

strative action is based. The first illegality second is irrational­

ity and third is procedural impropriety. He observes that, "By ille­

gality I mean that the decision maker must understand correctly the

law that regulates his decision making power and must give effect to

it By irrationality, I mean the 'Wednesbury unreasonableness'.

It applies to a decision which is so outrageous in its defiance of

logic or of accepted moral standards that no sensible person who had

applied his mind to the question to be decided could have arrived at

it.

as respects procedural propriety I see no reason why it should

not be a ground for judicial review of a decision made under powers

of which the ultimate source is the prerogative where the decision

 595

is one which does not alter rights or obligations enforceable in

private law but only deprives a person of legitimate expectations,

procedural impropriety will normally provide the only ground on

which the decision is open to judicial review".His lordship however

made it clear in the context of that case that, "National security

is the responsibility of executive government, what action is needed

to protect its interests is a matter upon which those upon whom the

responsibility, rests, and not the courts of justice, must have the last

word. It is par excellence a non-justiceable question. The judicial

process is totally inept to deal with the sort of problems which it

2
involves".

In fact, Lord Diplock gives the positive side of the legitimate

expectation. Prof. Wade comments on this judgement that, "This legi­

timate expectation could appear to have a future if the leads given

by their lordships are followed up. It supplies a foundation for the

emerging doctrine that public authority will be prevented from dis­

regarding their own assurance, undertakings or published policies.

It extends that doctrine to expectations based on past practice as

well as express assurances. It also tempers the rigour of doctrine

that crown servants are dismissible at pleasure, at any rate where

there has been unestablished practice of consulting them through

their trade union. There must now be a wide variety of employment

situations which justify a legitimate expectation of fair hearing

before either dismissal or any unfavourable change in condition of

1. C.C.S.U. v Minister for Civil °ervice, 1985, 1 A.C.374 at 409-11.

2. Ibid at 412.
 employment. Legitimate expectation looks as if it will be a useful

device, not only for the rejection of unmeritorious complaint but

also for making audi alteram partem the principle of univeral appli—

cation that it ought to be".

^ade is of the view that legitimate expectation has got

two effects: festive and Negative. The positive effect of the legiti­

mate expectation is that, "It can equally well be invoked in any of

many situations where fairness and good administration justify the

2
right to be heard".

The negative effect of the legitimate expectation, according

to Prof. Wade is that, "Absence of legitimate expectation will abso-

3
Ive the public authority from affording a hearing".

Consultation has emerged a new word in the vocabulary of

natural justice but it means only the legitimate expectation as consti­

tuting an entitlement to thereason for the decision and opportnity

to comment on it. It was held in R. v Secretary of State for Transport

exparte G.L.C."4 that consultation has to be made whether there is

express or implied requirement to consultation is there or not. How­

ever, the consultation does not mean the consultation with individua­

ls. Unions, and not only individuals would have had a legitimate

expectation of [Link], this legitimate expectation of

consultation is subject to the national security which is the respon­

sibility of executive government." The Executive Government decided

that the interest of the national security required that no notice

1. 101 L.q.R. (1985) 153 at 156.

2. [Link]., 522.
3. Ibid at 522.
4. (1985) 3 W.L.R. 574.
5. Public Law (1985) p.186.
 1
should be given".

The legitimate expectation of consultation has assumed an

important role in the sphere of natural justice. The doctrine of

legitimate expectation of consultation also applies in those cases

where the act does not provide for consultation. This principle is

the expression of the settled principle of law that wherever, the

exercise of an administrative power results in civil consequences to

citizen, the rules of natural justice applies irrespective of ithe

fact that the act does not provide for consultation or other methods

for ascertaining the views of the citizen. Thus Mr. Justice Rangnath
2
Mishra observed m Baldeo Singh v State of Himachal Pradesh" that,

"Citizens of India have a right to decide what should be the nature

of their society in which they live. Agrarian, Semi-urban or urban.

Admittedly the way of life varies depending upon where one lives,

inclusion of an area covered by a Cram Panchayat within a notified

area, would certainly involve civil consequences. In such circumstan­

ces it is necessary that people who will be affected by the change

should be given an opportunity of being heard, otherwise they would

be visited with serious consequences like loss of office, in Gram

Panchayats, an imposition of way of life, higher incidence of tax and

the like".3 In fact, the court observed in that case that the admin­

istrative decision by the State Government should have been taken

after considering the views of the residents. "Denial of such opport­

unity is not inconsonance with the scheme of the rule of law govern­
ing our society".4 The court referred to S.L. Kapoor v Jagmohan5 and

1. ReBrook, Delcomyn and Badrat,(1864 16 C.B. (N.S. )403.

2. A.I.R. 1987, 1239. A
3. Ibid at 1241. 1981, S.C.136.
4. Ibid at 1242.
 598

state of Orissa v Shridhar Kumar Mallik1 and concluded that consult­

ation as the farm of hearing was a must, what the court meant was that

even though there was no legal requirement to consultation, the resi­

dents of that area had a legitimate expectation of being consulted.

Consultation ensures the outside participation in administrative

decision making process. This does not mean that it is the only mean

through which out side participation is possible. It is one of the

facets of the rule of audi alteram partem which ensures the outside

participation in that process. Thus right to be consulted co-exists

with the right to the fair hearing.

Really speaking the two factors are responsible for the emerge­

nce of right to the consultation or legitimate expectation of the

consultation;

(1) "The decision being taken involves to at least some degree the

formulation and application of policy. Often it hings on the boradest

policy considerations. Wide descretion on the part of the decider is

thought to be inimical to the operation of the audi alteram partem

rule;

(2) Those with a right to be consulted are likely to have some thing

special to contribute to a decision, either because they stand to be

peculiarly affected or because they possess their own expertise in

2
the matter. They will have a position to put or advise to give .

1
* A.I.R. 1985 S *C< *
1411
2O The Legal Requirements of Consultation, Allan D. Jegesen,
Public Law, 1978, 290 at 292-93.
 599

Consultation ensures the public or those who have a legitimate

expectation or right to be consulted that better decisions may be

reached or the interest of those who are to be consulted will be

protected in a better way, if consultation takes place.

Ihe legal consequence of breach of a duty to consult must make

the administrative action null and void. Allan D. Jergesen concludes

that, 5-The legal requirement of consultation can open administrative

12
4
3

decisions to out side contributions at no great cost to administrat-

ive efficiency".

It has been held in Fletcher v Minister of Town Planning that/

“The word consultation is one that is in general use and that is well

understood. Consultation may often be a some what continuous process

and the happenings at one meeting may form the background of a later

one. In deciding whether consultation has taken place, regard must,

3
m my judgement, be paid to the substance of the events",

Morris J. observed that, “The Minister, with receptive mind,

must by such consultation seek and welcome the aid and advice with

those who with local knowledge may be in a position to proffer in

4
regard to a plan which the minister has tentatively evolved .
5
Bucknill L.J. remarked in Rollo v Minister of Town Planning

that, “A certain amount has been said as to what consultation means.

In my view, it means that, on the one side, the minister must supply

sufficient information to the local authority to enable them to

1. [Link]., 315.
2. 2 All E.R. 1947, 488.
3. Ibid at 500.
4. Ibid at 496.
5. (1948) 1 All E.R. 13.
 600

tender advice, and, on the other hand, a sufficient opportunity must

be given to the local authority to tender that advice".12

4
3

Legitimate expectation of consultation has become in the

present administrative set up a vigorous ground of judicial review.

It has been realised that in educational and other matters where the

closure, amalgamation or other reorganisation of schools are concer­

ned or where the reorganisationof the town area is at question or

other measures of the administrative authorites that are going to

affect the interests of the parents, residents and society as a whole,

they have got a legitimate expectation to be consulted.'Thus it was

■ • 2
observed in R. v Brent London Borough Council, ex-parte Gunning that,

"The parents had no statutory right to be consulted, but they had a

legitimate expectation that they would be consulted seems to me to

be beyond question. The interest of the parents in the educational

arrangements in which they live is self evident.... On any test of

3
legitimate expectation, it seems to me that these parents qualify". •

The learned judge again remarked that, "If I arn right that the parents

have this legitimate expectation, then they have the same legal right

to consultation as they would have had, if it had been given to them

4
specifically by stature".

It is to be remembered that in order to be the basis for esta­

blishing legitimate expectation the consultation must be a habitual

practice. Simply for making a claim of legitimate expectation of

”1. Ibid at 17.

2. (1986) 84 L.G.R. 186.
3. Ibid at 187.
4. Ibid at 187.
 601
Z2.,9tc

consultation attempt should not be made, we should not try to bring

a disrepute to the doctrine. We must remember the words of .Lord

Templeman in Lloyd v Mcmahon1 that "This extravagant language does

not tempt me to elevate a catch phrase in to a principle. The true

principle is that the auditor, like any other decision maker, must
2
act fairly".

It was emphasized in Council of Civil Service Unions v Minister

for the Civl Service3 that if the consultation has been the invariab­

le rule it must take place. Lord Fraser of Tullybelton observed that,

"If there had been no question of security involved, the appellants

would have had a legitimate expectation that the minister would cons-
4 5
ult them". The same point was emphasized by Lord Scarman , Lord
6 7
Uiplock and Lord koskill in that very case.

Paulmeredith. concludes that, "That school closures have given

rise to litigation comes as no surprise, and it is to be expected

that the flow of applications for judicial review in this context

will continue. These cases show the flexibility of legitimate expect­

ation as a basis for challenging administrative action, though they

do little to clarify the true content and nature of the doctrine. It

seems to be clearly established that the contents of departmental

circulars or administrative memoranda may be adduced by applicants

in support of their plea of legitimate expectation, and this is thus

another significant means of according such measures legal enforce­

ability, a development which raises constitutional questions of long

17 (1987)" 2 W.L.R. 821 at 889-90.

2? Ibid at 890.
3’ (1985) 1 A.C. 374. 6. Ibid at. 412.
4
* Ibid at 401 - 7. Ibid at 419.
5• Ibid at 4 07 * rt,DCJU Uhiv«roity
 602

standing relating to parliamentary control. The practical outcome of

the cases is on the whole to be welcomed; LEz\s^ have been forced to

take seriously both the process of consultation and the deliberations

of their education committees. With regard to consultations/ however,

this outcome has been reached by the wrong route, through full legal

effect to informal measures emanating from a government department.

This legal effect should have been attained through incorporation of

proper consultation requirements in the Education Act, 1980".

C.L. Perris is of the view that, "A redeeming feature of the

evolving law is the indication of contemporary judicial awareness of

the dangers attendant on too intrusive an interpretation of the iedea

of legitimate expectation. It has been recognised that exigencies of

a political nature may in appropriate circumstances, require drastic

curtailment of the legitimate expectation to be consulted. Reasonable­

ness of restrictions in regard to the nature of the representations

that may be entertained and the period within which they are required

to be made, is to a substantial extent a question of context. Moreover

the courts seem resolved to resist extension of the doctrine to

embrace expectations arising from the mere scale of the implications

of particular decisions. This inhibition is the product of conscious­

ness that if the duty of consultation were to be entirely opened, the

probable reaction of public authorities would be to opt for safety

and to assume, at the expense of efficient conduct of public business

3
a duty of consultation in all circumstances admitting of doubt .

1. Local Educational Authorities.

2. Public Law (Spring, 1988) 4 at 13.
3. Legitimate Expectation: Wednesbury Unreasonableness.
46 (1987) C.L.J. 66 at 69-70.
 603

Thus, we see that legitimate expectation is, "The foundation

■ .. 12
5
4
3
of a right to compell observance of the rules of natural justice .

This legitimate expectation is created by what has gone on before ,

"It can be stated with confidence that any expectation will only be

accorded where there has been either an express or implied and uncon­

ditional undertaking by the administrative authority with the power

to act, that it will in the case of the individual to be affected by

the exercise of that power, act in a certain and definite way. It

would then be unfair for the authority to act contrary to that expect-
2
ation so created".

It is true that the expectation must be real one, the circum­

stances must be such as will predict with certain degree of certainty

that an undertaking is given to act in the particular manner and that

this has been relied upon by the person affected by the subsequent

exercise of the power. But it does not mean, as has been observed by

Barwick C.J. in Salemi v Mackellar that, "It is therefore, necessary

to examine the eloquent phrase legitimate expectation derived

from the judgement of the master of rolls in Schmdt v Secretary

for Home Affairs, and I am bound to say that I appreciate its literary

quality better than I perceive itbprecise meaning and the perimeter

of its application". It has got no literary quality but it is a

reality in the field of administrative law. It is an extension of the

nature of the property or office held, status enjoyed or services to

be performed by the complainant of injustice, and also it embraces in

1. Expectation and Natural Justice: Kenmackie: The Australian Law

Journal, vol. 59 (1985) p.33.
2. ibid at 42.
3. (No.2) (1977) 137 C.L.R. 396.
4. (1969) 2 C.H. 149.
5. Supra Note 1 at 404.
 604

itself the sanction which may be imposed on its breach. "It marks

a move by the courts away from the strict insistence on traditional

rights as affecting the rules of natural justice and recoqnises that

there are circumstance where fairness, despite the lack of sucli a

right, nevertheless require a hearing".’Murphy J. has rightly obser­

ved in k. v Mackellar, ex-parte Ratu2 that "The couts have long

required observance of new process in the exercise of statutory powers

affecting property rights. The former almost exclussive emphasis on

property right is a reflection of 19th century values and does not

represent current values. The concept is not limited to property nor

□
to what may be strictly described as rights".

The doctrine of legitimate expectation is a vehicle through

which one can attain fairness and justice. The possession of such

expectation gives a right of a hearing. This doctrine is a newly

developed doctrine in the field of administrative law and it has cont­

ributed to the rapid expansion of the use of the principles of the

natural justice. It has also compelled the courts to anandon the leg­

alistic approach in the adjudicating process. Thus, Stephen J.

observed that, "When the discretionary grant of a licence, permit or

the like carries with it a reasonable expectation of, although no

legal right to, renewal or non-revocation, summarily to disappoint

thisexpectation is seen as unfair hence the requirement that expect­

ant person should first be heard and this no doubt as much to aid

those who exercise discretion in pursuing the goal of a just result

1. Kenmackie, 59 A.L.J. 33 at 43.

2. (1977) 137 C.L.R. 461.
3. Ibid at 483-484.
 605

as to safeguard the interests of the expectant party".The legitim­

ate expectation doctrine is a new gate through which one can reach

the open door of judicial review and can attain the goal of welfare

state.

Really speaking the courts are there to determine not only the

statutory rights but also the common law rights which qualify the

exercise of that statutory power. "Although in the absence of a statu­

tory framework there can be no claim to statutory rights, the common

2
law will furnish basic standards of justice and fairness".

ihe Act may not provide for notice, inquiry or appeal but a

citizen legitimately expects that these opportunities will be provided

to him and if legislature has omitted it in the words of Byles J. in

3
hooper's case , the justice of the common law will supply the omissi­
ons of the legislature".

Though the courts have adopted the 'Wednesbury reasonableness'

criteria, yet the legitimate expectation doctrine empowers the court

to cover new areas of unreasonableness because, as uunn L.J. has

pointed out, "The categories of unreasonableness are not closed,and

5
unfair action can seldom be a reasonable one".

Thus, the expectation may not be in itself right but it would

have the same effects as a right in the context of employing the rules

of natural justice. Stephen J. has rightly pointed out that, "It seems

no doubt, from the same fertile source as has nurished the concept

1. Salemi v Minister for Immigration and ^thnic Affairs, 1977,

137 C.L.R. 396 at 439.
2. Pragmatism and Theory in Public Law, 104, L.q.R.422 at 439.
3. (1863) 14C.B.(N.S.) 180.
4. Ibid at 194.
5. R.v Secretary of State for Home Department,ex-parte Khan 1984;
1 W.L.R. 1337 at 1352.
 606

that those who possess rights and interests should not, in the absence

of express enactment, be deprived of them by the exercise of an arbi­

trary discretion and without observance of the rules of the natural

justice . This right is the right to natural justice in certain

circumstances and a legitimate expectation is one of those circumst­

ances. Thus, it is one of the important facets of natural justice.

ees 2
Magarry J. has observed in John v * I refuse to hold that the

right to natural justice depends upon the right to afew pieces of

. 3 ,,
silver". -thus he indicated that it is not necessary to have a legal

right for the application of the rule of natural justice. A legitim­

ate expectation will suffice the purpose.

D.C. Hodgson is of the view that, "The legitimate expectation

doctrine must now be regarded as firmly entrenched in the realm of

natural justice. The development of legitimate expectation has faci­

litated theexpansion of the area within which the rules of natural

justice operate, which had hitherto been hedged about by the tradi­

tional insistence on theexistence of legal right. A person who has

been provisionally appointed or elected to some position may be

said ip-so-facto to possess a legitimate expectation of final confir­

mation. A legitimate expectation may have as its source a person's

ostensible ability to fulfil statutory requirements, the satisfaction

of which automatically entails the conferral of a statutory right.

Apart from imperative need to find a sufficient foundation for the

legitimate expectation in ques tion it may be said that the number and

type of bases have not been finally settled.

1. 137 C.L.R. 396 at 438.

2. 1970, 1 Ch.345.
3. Ibid at 398.
 607

This potential for a wide and flexible application of the legitimate

expectation doctrine perhaps explains why judges have been reluctant

to lay down precisely its content and permeter of application, prefe-

ring instead to apply it on a case by case basis. In time, however,

some of the uncertainty presently surrounding the nature of the legi­

timate expectation will likely be dissipated through judicial refine­

ment of the concepts. Whatever may be the future course of its develo­

pment and despite its perceived shortcomings, the doctrine has conti­

nued, in its application, to serve the legitimate ends of justice and

fairness to which it owes its origin”.12

This developing doctrine of legitimate expectation affors a

suitable vehicle for the recognition and application of rights in

public law. “The basis of the doctrine consists in a wider conception

of the right to fair treatment at the hands of public authority.

Recognitiin of a legitimate expectation of being granted a hearing

may depend on similar considerations. The fairness requirement there­

fore, encompasses both procedure and substance, determining applicat­

ion of the rules of natural justice and of the Wednesbury criteria

2
of unreasonableness ”.

1. The Current Status of Legitimate Expectation in Administrative

Law, Melbourne University Law Review, vol. 14, 1984,686 at 718—720.
2. Pragmatism and Theory in Public Law, 104, L.c.R. 422 at 435—36.
 608

Effect of European Ideas:

Lord Diplock’s reference to the proportionality is influenced

by the continental ideas that the obligations imposed upon citizen

in the public interest should be proportionate to the object in view.

An inordinately heavy burden should not be imposed upon a citizen in

order to attain a trivial public good. This priciple has frequently

been invoked before the European court and as 12J.Usher1/ has pointed
•i
out, it forms part of the administrative law of many member states.'

In fact, Lord Diplock, himself has observed that, "1 have in mind

particularly the possible adoption in the future of the principle

of 'Proportionality' which is recognised in the administrative law

of several of our fellow members of the European Economic Community"7

'John Bell' is of the view that the French courts strictly foll­

ow the rule of proportionality. The Conseil d'Etat, there ensures

that the legal conditions for exercise of power are met. This establ­

ished area of control is called the normal control and is the basis

of comparison with other areas. The conseil, "quashed the dismissal

of a Mayor on the ground that the allegations have no foundation and

that other allegations were irrelevant to the performance of the job

of Mayor".3 The Conseil applied there the law of proportionality and

verified that the material facts on which the decision was based did

in fact exist.

1. The Influence of National Concepts on decisions of the European

Courts, 1976, 1 European Law Review, 359 at 363.
2. C.C.S.U. v Minster for Civil Service, 1985, 1 A.C.374 at 410.
3. The Expansion of Judicial Review over Discretionary Powers in
France, 1986, Public Law, 99 at 113.
 The principle of proportionality was also applied in R. v Metro­
politan Council, ex-parte Hook^ by Lord Denning who observed that,

••The court can interfere by certiorari if a punishment is all together

excessive and out of proportion to the occassion" .

1 orsyth writes that, "But it may be significant that prior

to the introduction of the concept in English Law there was develop­

ing in the jurisprudence of the Eurpoean communities (and based on

the administrative laws of other E.E.C. countries) a similar concept

that also sought to protect the confidences that subjects had placed

in governments (in this case the European Communities), i'his came to

be called before the European courts the protection of legitimate

expectation.... even if there was no cross fertilization of ideas from

European law in the introduction of the concept of legitimate expect­

ation into English law, an analysis of the European concept may

indicate or aid the lines upon which legitimate expectation may deve-
2
lop in English law". Thus, in ReCivil Service Salaries; E.C. Commi-
3
ssion v [Link] it was said that the council failed to protect

the legitimate expectations of the staff members. This case was

4
decided after the Schmidt's case yet it cannot be said that the

European courts borrowed it from English law. "On the contrary, it

is widely accepted that the idea was drawn from the administrative

laws of the other member states particularly German laws. The German

concept of Vertrauenschutz is broader than that of Legem Ratere quam—

fecisti. . . It applies even when no rights have been acquired •

1. Ibid.
2. (1988) The Cambridge Law Journal,vol.47,238 at 241-242O
3. (1973) C.M.L.R. 639.
4. (1969) 2 C.H. 149.
5. Supra Note 2 at 243.
 610

The European courts apply this doctrine in the field of licence,

permit/ employment/ contract/ naturalisation/ and direct the admini­

strative authorities to revoke their unlawful acts if they find that

the trust placed by the citizen in thevalidity of the administrative

act is not protected. We should not hesitate in accepting that the

concept of legitimate expectation may have been influenced by the

ideas drawn from the law of E.E.C. and Germany. “There seems to be

no reason why the concept of legitimate expectation should not be

borrowed from or atleast influenced by the administrative law of

Continental Europe”. The European Court of Human Right declared in

Campbell and Fell that there was no distinction between a right

and privilege and that the practice of granting remission gave a

prisoner a legitimate expectation/ “That he will be freed (at his

estimated date of release) unless remission is forfeited in discipl-

3
inary proceedings11.

Taking into account this fact Lord Wilberforce has suggested

that the doctrine of legitimate expectation “can be traced much

4
further back than Schmidt”. In fact he has hinted that Lord Diplock
5
was influenced by French liberal approaches to the whole problem.

Thus, we see that the concept of legitimate expectation has been

applied by the continental courts but the courts of the Commonwealth

countries have simply followed the English courts.

*1 C.F. Forsyth/ [Link]., at 245.

2
* (1985) 7 E.H.R.R
* 165.
3. Ibid at 196. .
4. Lord Di^lock and Administrative Law/ 1986, Public Law, 6 at p.7
*
5. 73 L.J.778.
 611

LegitiniatB [Link] in the American iJuo Process •

We have already referred to the concept of ’’New property"

persuasively advocated by Reich. In his article he has urged that

government iargees whether in the form of income and benefits/ jobs/

licences/ franchieses contracts/ services or use of government lands

and other resources should be regarded as a form of property in the

recipients. He was of the view that the grants/ denials/ revocations

and administration of Iargees should be subject to procedural safe­

guards •

It is to be noted that the new property word was coined three

years before the Schmidt’s case but it did not use the expression

legitimate expectation, though it used to denote the same sense as

the word legitimate expectation denoted. However, the Reich's idea

was quoted and relied upon by the U.S. Supreme Court in due process

cases. Justice Brennan expressly used the word 'new property' in the

sense in which the legitimate expectation is used in Goldberg v

Kelley.*23
6 However,
5
4 the term legitimate expectation found its place

in the U.S. decisional process in search and Seizure cases. The

earliest use of the term legitimate expectation in such cases appears

□
to be in Alderman v United States. The other cases that have used
4
the word legitimate expectation are, O'Connor v Ortega , California

v Rooney^, Dow Chemical Co. v United States.

— .

2. 397 U.S. 254, at 262 (1970)

3. 394 U.S. 165, at 192 (1969)
4. 107 S.C.T.1492 at 1509 (1987)
5. 107 S.C.T. 2852 at 2860 (1987)
6. 476 U.S. 227, at 235 (1986).
 612

The new property concept is an extended form of the doctrine of

legitimate expectation. If the courts adopt Reich's philosophy, they

might pay particular attention to procedural provisions when broad

regulatory discretions are allocated. There should be requirements

to give hearings and reasons where these perceived as feasible and

appropriate; The lesson to be taken from Reich is not that decisions

on Largees should be given over to lawyers or governed by considerat­

ions of private interests. His strong message is that individuals

interest should not be treated lightly simply because they relate to

Bargees rather than traditional property rights11^

In U.S.A, the distinctions on the rights privileges specturm

are also treated as irrelevant. The learned authors suggest that in

order to make the new property concept more practicable, "Institution­

al steps can also be taken to make procedures fairer. Conflicts of

interest can be avoided by the use of independent decision-makers in

the form of tribunals and agencies. As 'Ganz' has pointed out, more

can depend on who makes the decision than on the kind of discretion,

decision or rule that governs the issue. Perhaps more importantly,

endeavours should be made to secure an appropriate match between the

type of decision-maker and the issue involved. Agencies that take

decisions involving Largees should also adopt a policy of maximum

disclosure since the more that is publicly available to explain deci­

sions, the less room there is for injustice, actual or perceived.

All such steps should be taken as if rights rather than lesser

1. Expectations in a Joyless Landscape, Robert Baldwin and David

Horne, 49, M.L.R. (1986) 685 at 708.
 613

interests were involved. In general issues of principle involving

largees should be treated as if property were involved but the pack­

age of protections offered should be tailored to the particular

circumstances of the case”.

It is clear that the Supreme Court of United States has adopted

the liberty property approach to due process, a legitimate expectat­

ion of a substantive benefit supported a claim to natural justice,

just as the substantive liberty or property interest provided the

predicate for invocation of procedural due process. However, the sub­

stance of the two tests applied by the two countries are not dissimi­

lar. The [Link] Court termed the requisite due property interest

as a 'legitimate claim of entitlement'. A claim of entitlement sugges--

ts a stronger interest than expectation. But this difference is one of

degree rather than of kind. The legitimate expectation of England

does not reguire an enforceable private rights, likewise the legiti­

mate claim of entitlement does not need an enforceable substantive

claim. It only requires the right to have particularised standards

applied by the authorities in deciding whether the benefit is to be

granted or withdrawn. These legitimate claims of entitlement are not

"created by the constitution but by existing rules or understandings

that stem from an independent source such as state law,rules or

understanding that secure certain benefits and that support claims

„ 3
of entitlement to thos benefits .

1. 49 M.L.R. at 709.
2. Board of Regents v Roth, 408 U.S. 564 (1972).
3. 408 U.S. at 577
 614

“lhe development of the liberty and property concept since

Roth/ with its emphasis on rights grounded in statute or the U.S»

Constitution/ indicates on its face a much higher threshold then that

posed by the express promise or regular practices needed to support

a legitimate expectation. But just as closer analysis of Roth found

the differences less pronounced than might be expected/ the same is

true of some of the later cases. As the Supreme Court stated in Olim
v walinekina^/ a state can create a protectible liberty interest

merely by placing substantive limitations on official discretion.

Such holdings have occured primarily in prison administration cases,

but theoretically the notion of limited administrative discretion

2
need not be restricted to that context".

The U.S. courts have begun to use the expressions 'objective

3 ...
expectations' and are of the view that the objective expectation

creates a sufficient liberty interest to invoke the protection of

due process. It is true that the content of legitimate expectation

is not the content of legitimate claim of: entitlement/ yet the conce­

ptual affinities remain the same. The concept of legitimate expect­

ation is based on an express promise made by an administrative

official, though it has not analogy in American law but "Mutually

explicit understandings"4 give rise to a property interest. In Sinder-

mann case, the court made it clear that mutual understandings creates

an implied contract which is more standard than an express promise.

1. 461 U.S. 238 at 249 , . u, . . ,

2. Riggs, Legitimate Expectation and Procedural Fairness in English
Law, 36, The American Journal of Comparative Law, (1988) 395 at
423.
3. Vitekv uones, 445/ U.S. 480 (1980).
4. Perry v Sindermann/ 408/ U.S. 593 at 601 (1
 615

The court also indicated in that case that apart from implied contra­

ct a regular practice may give rise to a protectitle property intere­

st. in United States Trust Co. v Newjerseyand Allied structural

2
Steel Co. v spannaus the Supreme Court of U.s.A^ referred to a

legitimate expectation of the contracting parties. Thus, we find

that in American due process the legitimate claim of entitlement or

legitimate expectation doctrine is [Link] the English courts,

the U.S. courts also are doing away with the rlgh t/pr.i vi.l ege dichoto­

my and they are now adotping the approach that legitimate expectation

or legitimate claim of entitlement may give a new property right and

thus it will give a right to the hearing.

The Bases of the Legitimate Expectation:

The legitimate expectation doctrine bases itself to some past

practice, express promise and other understanding of this sort. Lord

3
Frasher explained this in Attorney General of Hongkong v New iuenshiu

that such expectation"may be based upon some statement or undertaking

by or on behalf of, the public authority which has the duty of making

the decision, if the authority has, through its officers acted in a

way that would make it unfair or inconsistent with good administrati-

4
on for him to be denied such an enquiry". Lord Diplock emphasized
in G.C.H..Q. case5 that the procedural expectation merged with subst­

antive expectation will form the basis of the legitimate expectation.

1. 431 U.S. 1 at 20 (1977)
2. 438 U.S. 234 at 246 (1978)
3. (1983) 2 A.C. 629 P.C.
4. Ibid at p.637.
5. (1985) 1 [Link].374.
 616

Thus, we see that the legitimate expectation protects not only

the substantive and procedural expectations but it also is a manifes­

tation of the judicial attitude to hold the administration account­

able for the fairness and consistency of the decision making process.

Hodgson has enumerated the following categories which form

the subject matter and scope of legitimate expectation. These are,

licensing cases, the immigration cases, the employment cases. The

learned author then concludes that there could and should be much

wider range of applications of the doctrine. He says that, “provided

the courts take pains to identify an adequate foundation for its app­

lication in each case, however, it is likely that the doctrine will

continue to flourish in this particular area.... If there is an out­

standing common criticism linking a number of the proceding cases

together, that criticism must be the fervour of judges in applying

the doctrine without thoughtful consideration and articulation as to

the foundation or basis upon which the legitimate expectation is said

to arise. In as much as the possession of a legitimate expectation

confers upon its holder the substantial right to be accorded natural

justice, the courts must ensure that the expectation contended for

is well founded.

[Link] listed the right to a livelihood, right to a

licence, imposition of a sanction, the existence of a lis pendens

as the bases of legitimate expectation.

1. Natural Justice, Fairness and Administrative Functions, vol.5,

University of Tasmania Law Review, 268 at 274-278, (1977) .
 617

We cannot give the full categories of the bases of the legiti­

mate expectation because the categories are never exhaustive and they

are never closed. Thus Macpherson J. observed that, "These categories

.... may not be exhausted, but 1 am convinced that the court should

be careful not to extend them without proper justification".4 There

may not be past practice, no express promise, no withdrawal of bene­

fit previously enjoyed, but a set of circumstances may inspire a

judge to make a new category to base this doctrine. The judges sense

of fairness rather than any fixed category of expectation will meet

the end of justice.

Thus, we see that the judicial attitude towards the doctrine of

legitimate expectation is one of the expanded magnitude. As the cate­

gories of the expectations are not closed, the courts, it seems, will

recognise legitimate expectations founded on implication rather than

past practice, representation or any other undertaking. Thus, in

Nirachos (London) Ltd. v Secretary of States for Enviornment , the

High Court of Australia quashed a decision of the Secretary of the

State for misdirecting himself as to the provisions of the development

plan."When expresses himself to be deciding a case under a stated

policy, it must follow that if he decides the case other than in

accordance with the policy, he misdirects himself". The same line

of arguments were taken in Bell Colville Ltd. v Secretary of State

for the Environment and Guildford B.C.4, and [Link] (Oxford) Estates

Ltd. v West Oxfordshire District Council and the Secretary of State

1. The Times;4th Mar.1986 (R.v Greater London Council ex-parte

Westminster City Council).
2. (1977) 35 P.& C.R. 259.
3. Ibid at 264.
4. (1980) J.P.L. 823.
 618

for the Environment • The judges in all these cases have emphasized

that the legitimate expectations may be said to be imp Liei t in poli­

cies and other matters and the decisional process has to take into

account these material factors. Robert Baldwin and David Horne concl­

ude that, There are two bodies of case law on expectations, marked

by different characteristics, the first group is plagued by the

language of rights and privileges, the second is more firmly rooted

in the language of fairness" S"

Thus, the sources of the legitimate expectations are assurances,

respective parties knowledge of the usual practice in the particular

3
circumstances, and in cases of implicit assurances. In Salem!

Stephen J. observed that the legitimate expectation stems from,"The

same fertile source as has nourished the concept that those who

possess rights.... should not.... be deprived of them.... without

observance or rule of natural justice.... The well founded expectati­

ons should be protected by natural justice as the person's rights

or interests. The source and reason for this principle lay in the

doctrine of fairness".4 The same learned judge has acknowledged that

1 a legitimate expectation can arise out of the circumstances in which

the discretion is being exercised so as to entitle the complainant

5
to expect to be treated in a particular way . Thus, fairness is the

ultimate basis for the doctrine of legitimate expectation. John

Hlophe is of the view that, "In my view in any given case fairness

plays an important role in determining whether the expectation should

17 (1982) J.P.L. 577. '
2. Expectations in a Joyless Landscape,49, The Modern Law Review,
685 at 701.
3. (1977) 137 C.L.R. 396.
4. Ibid at 438.
5. Simsek v Minister for Immigration and Ethnic Affairs(1982)
40 A.L.R. 61 at 68.
 619

be characterised as legitimate for the purposes of natural justice.

Thus, it is fairness which determines that unfounded or unreasonable

expectations should not be afforded the protection of natural justice.

It is also fairness which dictates that where the discretionary power

is being exercised over a person, he may well be entitled to expect

that it will not be exercised unfavourably or unfairly without his

having been afforded a hearing".In fact, it was emphasized by Lord

Tampleman in Lloyd’s case that, concern for legitimate expectations

was no more than “a manifestation of the duty to act fairly”. If the

court finds that this duty to act fairly has not been fulfilled, the

court will interfere in the decisional process and will quash the

decisions made against this rule. Lord Bridge of Harwich thus referr­

ed to the well established principle in Leech v barkhurst Prison

4
Deputy Governor that, '‘Where any person or body exercises a power

conferred by statute which affects the right or legitimate expectat­

ions of citizens and is of a kind which the law requires to be exer­

cised in accordance with the rule of natural justice, the court has

jurisdiction to review the exercise of that power”.

The complications of the modern technical societies demand that

the doctrine of legitimate expectation should not be put into straig­

ht jacket. ’’That the view that legitimate expectation can arise only

from express assurances, or regular practice is a misfit and should

be discarded. It should be discarded because, while legitimate expec­

tation was introduced to extend the scope of the application of the

1. Legitimate Expectation and Natural Justice; English Australian
and oouth African Law Journal,vol.104, (1987) 165 at 178.
2. (1987) 2 W.L.R. 821
3. Ibid at 889-90.
4. (1988) 2 W.L.R. 290.
5. Ibid at 306.
 620

principles of natural justice, thereby breaking away from the right

privilege dichotomy, the creation of categories would undoubtedly

lead back to the deficiencies and anamalies that were, sought to Jbe

avoided, Ihis would certainly hinder the inherent flexibility of legi­

timate expectation, and therefore the development of natural justice

to meet the needs of a rapidly developing and expanding society".

The doctrine of legitimate expectation is, thus, an instrument

through which, “One of the major deficiencies in our notion of natural

2
justice" is removed. It [Link] this concept that an escape route

has been found by English courts to advance from the anachronistic

and unrealistic right-privilege distinction towards a more flexible

and satisfactory approach to natural justice. John Hiophe says that,

11 In my opinion, the adoption of the concept in our law would be most

3
welcome in view of the deamnds of a modern society". New situations

have created new demands. As Prof .Davis has pointed out, "The only

reason for considering a passport a privilege is that until recently

the passport was not generally indispensible to foreign travel. Now

4
that it is, the privilege idea is a misfit". The new technological

society has created a new property in the public interest. It does

not attack the discretions but it only demands that the discretions

should be used fairly and reasonably. The realities of the modern

life has widened the scope of the legitimate expectations. "The Courts

should, however keep administrators within the terms of their powers

and, in doing so, prevent unfairness and abuse of power, ^he judges

17 104, The South African Daw Journal, 1987. 165 at 179.

2. Raster, L.G. Fairness and Natural Justice in English and South
African Law, 1979, 96 S.A.L.J.607 at 608.
3. 104, S.A.L.J. 165 at 166.
4e Administrative Law Treaties: (1951) Ch.l, 711 at olO.
 621

are inclined to protect private rinh+-o u

rights where local authorities inter­
fere with individuals in pursuit rvt
f the public interest but prisoners
and trade unionists expectai-inrw u . .
ave failed to excite such a response
from the judiciary".1 The courts arP
are, however not adopting the consis­
tent principies with regard tn t-ho x. •
- doctrine. The courts must try to
erect this doctrine on more secure £oundal,ionn-

1. 49, M.L.R. 685 at 710.

 62:

John Hiophe enumerates the following advantages of the doctrine

of legitimate expectations:

(1) It can be invoked by the courts themselves without any need

to wait for the legislature to make specific provision for its appli­

cation or to list the requirements that have to be met before it can

be applied;

(2) Legitimate expectation does not pre-suppose any pre-existing

rights. It is,therefore, inherently flexible;

(3) ihere is an avoidance of the dieflciencies of the right privil­

ege dichotomy, a dichotomy that is totally out of place owing to the

needs of modern societies;

(4) It extends locus standai to cover the types of person who have

previously been regarded as having no right to be heard;

(5) It can eliminate claimants with unreasonable or unfounded

expectations;

(6) i'he legitimate expectation is not and should not be confined

to specific assurances or regular practice, but can arise from a

variety of circumstances, surely more 'new rights would be recognized

though this concept1.

(7) It helps the courts to develop administrative law l.e make it

an effective means of controlling the abuse of vast administrative

and legislative powers that are vested in the executive and that
1
are continually being abused'.

1. 104, S.A.L.J. 165, at 181-183.

 623

lhe adoption of the doctrine of the legitimate expectation is

a step forward and it should be employed in future decisions. It

makes the concept of the natural justice more flexible. It has got

a big relevance in the modern legal system. It is not a fetter upon

good and efficient administration. "If in the given circumstances,

tnere is a legitimate expectation, all that is required of the deci­

sion maker is to act fairly in accordance with the principles of

natural justice, which facilitate accurate and informal decision

making".

The Meaning of the Legitimate Expectation:

It is very difficult to give an accurate and precise meaning

to the term legitimate expectation, it is because of this, perhaps,

2
that Chief Justice Barwick observed in Salemi case , "That it lacks
3
in precision". However, the learned Chief Justice tried to give a

definite meaning to the term in that very case, he said that, "I can­

not attribute any other meaning in the language of a lawyer to the

word legitimate than a meaning which expressed the concept of entitl­

4 Stephen J. observed in the same case

ement or recognition by law".1
3
2

that, "Well founded expectations should be accorded the same protect­

ion of the natural justice as the person's rights or interests".5

1. John Hiophe [Link]; at 185.

2. 137 C.L.R. 396.
3. Ibid at 404.
4. Ibid at 404.
5. Ibid at 439.
 624

However, 3 the Australian High Court simply talked of the

in Heatley12

legitimate expectation and concluded that it is not necessary that

an enforceable legal right must exist to create legitimate expectation

In Attorney General of Hongkong's case^ the Privy Council equated the

term 'legitimate' with 'reasonable' and said that "Legitimate expect­

ations are capable of including expectations which go beyond

enforceable legal rights, provided they have some reasonable basis".

This has been approved in C.C.H.Q, case4, and in Leech's case56

. The
10
9
8
7

American courts have given meaning to legitimate expectations as the

'legitimate claim of entitlement' the liberty interests , the objec-

Q
tive expectations , the entitlement to some measure of constitutional
9 10
protection under due process and mutually explicit understanding.

Legitimate expectations are capable of including expectations

that are not categorised in the category of enforceable rights. Its

legitimacy is determined by the ordinary standard of fairness.

The doctrine of legitimate expectation is the development of

the modern technological society. It has made the concept of natural

justice more flexible. It has broken away from the rigid and concept­

ual right-privilege dichotomy. It is a window through which the

1. 137 C.L.R. 487.

2. (1983) 2 A.C. 629.
3. Ibid at 363.
4. (1985) 1 A.C. 374.
5. (1988) 2 W.L.R. 290.
6. Board of Regents v Roth, 408, U.S. 564 at 577.
7. Ingraham v Wright 430, U.A. 651.
8. Vitek v Jones 445, U.S. 480 (1980)
9. Greenholtz v Nebraska Penal Inmates, 442 U.S.l (1978)
10. Perry v Sindermann, 408 U.S. 593 at 601 (1972).
 625

courts attempt to mediate between individual interests and collective

demands in the modern societies. The legitimate expectation is the

legitimate child of the audi alteram partem rule.

Legitimate expectation, no doubt is, a valuable asset in the

hands of judiciary. However, it should not be taken too far. Dr.

■Soranrajah1 has rightly pointed out that if tills is taken too far it

would make very difficult for the welafare states to fulfill Ithe expe­

ctations that may crop up daily. "An academic lawyer would shudder at

the prospect that a hearing should be given to every applicant for

admission to the University because he has an expectation that he

would be admitted and a refusal would interfere with these expectat­

ions. Can the student who fails in administrative law at the end of

the year argue that he should be given a hearing because his legiti-

mate expectations had been so brutally interfered with?" Likewise,

every candidate, who appears at the interview and fails to get an

employment, can demand that he should be given a hearing because his

legitimate expectation of being appointed has not been fulfilled.

Such arguments will bring a bad name to the doctrine. It is true, as

Jackson has pointed out, that if non-academic matters are taken into

account in the exclusion of a student, then he would surely have

cause to request that his case be dealt with by the process of natural

justice.2 However, this is too much of the doctrine. The realities

of the modern society have to be taken into account. It will be very

difficult to run a democratic government, if the welfare states are

1. Natural Justice, fairness and Administrative functions:

University of Tasmania,Law Review; 5 (1977) p.268 at 286.
2. Natural Justice, 1973; p.52, 81-82O
 626

compelled to respect the daily expanded categories of legitimate expe­

ctations. That will be to apply the doctrine in the open sky and not

on the earth. Thus the view of Prof. Jackson does not seem to be

correct in the light of the above discussions. We must remember that/

law ” lives not in a world of abstractions but in a cosmos of concretn-

ess and to give up some thing good must be limited to extreme cases.

If to condemn unheard is wrong, it is wrong except where it is over­

borne by dire social necessity".

Lord Templeman has also emphasized that much insistence should

be
not^given to the application of this doctrine. He did not agree with

the argument put forward by Mr. Blomcooper in Lloyd v Mcmahon that,

"A legitimate expectation of being invited to an oral hearing in an

objective fundamental right which, if not afforded, results in a brea­

ch of law or breach of natural justice which invalidates any decision

3
based on written material". He observed that, "This extravagant
4
language does not tempt to elevate a catch-phrase into a principle".

Prof. D.J. 'Galligan has opined that 'the fashionable concept of legi­

timate expectation should not be used as the basis for participatory

procedures. Rather than relying on such concepts Prof. Galligan

suggests the novel idea of having two scales. One scale being of

procedures ranging from the least demanding to the most demanding

and the other scale reflecting the importance of the rights of inter­

ests in issue. By placing one scale against the other according to

the importance of the issue you should be able to find the extent to

1. Mohinder Singh Gill v Chief Election Commissioner, A.I.R.1978,

S.C. 851 at 873.
2. (1987) 2 W.L.R. 821.
3. Ibid at 889.
4. Ibid at 889.
 627

which the procedure must protect those affected by the decision!12

*4

However, it will be a difficult task to place the scale of least

demanding to the most demanding against the scale of the importance

of rights of interests in issue. This novel suggestion of Prof. Galli­

gan does not seem to be a practical substitute for the doctrine of

legitimate expectation. The doctrine should be applied/ of course,

with the utmost care. What is necessary is, the pragmatic approach of

the courts in considering the facts of a, “a particular case under

*
the umbrella, of reasonableness or fairness"Prof. J.R Lucas equates

this doctrine with the legal rights and chartered interests and says

that, “But we need to know that this is no Kangaroo court, and that

our rights, interests and legitimate expectations are not being ille­

gally infringed, but are being duly considered by those properly enti-
3
tied to determine them".

The Indian judiciary has accepted the principle of legitimate

expectation. If the government’s decision entails Civil consequences,

that decision is to be made in accordance with the principle of natu-

4
ral justice. Thus, in Indian Telephone Industries Ltd. v Karnataka

the High Court of Karnataka quashed an order of reference made at

the behest of the Chief Minister on the ground that the petitioner

was entitled legitimately to expect that the dispute raised by certain

terminated workmen had ended when the government in the first instan­

ce had declined to make a reference and that the petitioner had fill­

ed up the vacancies caused by the termination of workmen found guilty

1. Discretionary Powers,1986, Review Article, 1988,

104, The L.y.R. 462 at 466 By [Link].
2. 104, L.Q.R. at 463.
J. On Justice at 77.
4. (1978) 1 L.L.J. 544.
 628

of misconduct, thau the petitioner’s legitimate expectation to act

and hold to the earlier orders had been affected by the impugned order

of the government that by reason of reference, the petitioner had been

exposed to defending the proceedings which involved time and money#

In view of the above factors, the court held that the government

should have allowed the petitioner, to make oral or written represent­

ation before it decided to refer the dispute and that its failure to

do so offended the audi alteram partem rule and therefore, the order

was amenable to its writ jurisdiction and liable ito be quashed. No

argument is necessary to accept.... that its legitimate expectation

to act and hold to the earlier orders of the government has been

affected”. ' Chief Justice [Link] of the Bombay High Court obse-
2
rved in State Bank of India v Transport Co.12
.' As the horizon of the

State’s activities is expanding in the modern welfare state, judicial

concepts are being remodelled to suit new situations If at the

threshhold of deal, a citizen is to be discriminated against aid of

the principles of natural justice is invited to safeguard the legiti­

mate expectation of the citizen.

Our Supreme Court has observed in Baldeo Singh v State of

Himachal Pradesh3 that the residence of the area legitimately expect

that they would be consulted before a decision is taken to reshape a

particular area because that will affect them in many ways. The Patna
High Court opined in Sheonath Rai v State4 that, "The rule that the

views of the residence are obtained before a decision is taken to

1. Ibid at 554.
2. A.I.R. 1979 Bombay 250 at 263.
3. A.I.R. 1987 S.C. 1239
4. A.I.R. 1989, Patna 126.
 629

constitute a notified area, thus guides the State Government discret­

ion. Denial of such opportunity will not be inconsonance with the

* a.

scheme of the rule of law governing our society11.

The other cases in which the courts have emphasized the legiti-

mate expectations of consultation are Ram Buchan v State of Bihar t

State of Drissa v Shridhar Kumar Mallik^ in Detnorskeveritas, Bombay

v Reserve Bank of India, Bombay^ the Bombay High Court has observed

that, “A person who invokes the principles of natural justice need not

necessarily have any legal right. If he has a legitimate expectation

which is being denied to him, he is entitled to invoke the principle

of natural justice and claim that before his legitimate expectations

are denied to him, he should be permitted to make a representation

or be heard'1.5 'j»he other cases are, Indian Sugar and Refineries Ltd.

v Amaravathi Servide Co-Op. oociety^, M/s Erusian Equipment and Chemi-

7 8
cal Ltd. v State of West Bengal , V.R. Thomas v State of Kerala.

The legitimate expectations that arise are the other side, so

to speak, of the principle of fairness and the natural duty of justice..

For in the way that one has a duty to up-hold Just ar r anqem-uits, and

an obligation to do one's part when one has accepted a position in

them, so a person who has complied with the scheme and done his share

has a right to be treated accordingly bY others. They are bound to

meet his legitimate expectations.

1. Ibid at 131.
2. A.I.R. 1967, S.C. 1404.
3. A.I.R. 1985, S.C. 1411.
4. A.I.R. 1989, Bombay 162.
5. Ibid at 164.
6. A.I.R. 1976, S.C. 775 at 779
7. A.I.R. 1975, S.C. 266 at 268
8. A.I.R. 1969, Kerla,81.
 630

The Judicial,/—Quasi Judicial and Administrative Functions or Acts,?

1raditionally the functions or the acts have been categorised

in three categories/ namely/ judicial/ quasi-judicial and administr­

ative. A judicial act is known to be judicial when it is exercised

by the ordinary courts of the land. It is done in accordance with

law. The judge exercises his function on grounds of legal policy.

His approach is objective and he is guided by his idea of law. "A

duty to act judicially may arise in widely different circumstances

which it will be impossible and indeed inadvisable to attempt to

define exhaustively”.

. . of functions
Judicial function is one of the major groups^of governments/

"Involving the ascertainment of facts, the ascertainment of law rela­

tive there tO/ and the application of the relevant law to the facts

to effect of determining claims/ controversies/ and disputes.... the

judicial function is essentially decisive.... judicial functions are

commonly entrusted to courts of one or more legally qualified

[Link]"ii . 2
3
Justice Holmes observed in Prentice v Atlantic Cost Line Co.

that/ "A judicial enquiry investigates/ declares and enforces liabi­

lities as they stand on present or past facts and underlaws supposed

4
already to exist. That is its purpose and end”.

1. Board of High School v Chanshyam/ A.I.R. 1962/ S.C«1110 at 1113.

2. The Oxford Companion to Lawz Walker/ p.673.
^•iQuoted in/ An Introduction to American Administrative Law,
^•Xby Schwartz, 1958/p.106-07.
 631

lhe committee on Ministers' powers observed in its report that,

"A true judicial decision presupposes an existing dispute between two

and more parties, end then involves requisites t

(1) the presentation (not necessarily orally) of their case by the

parties to the dispute;

(2) if the dispute between them is a question of fact, the ascertain­

ment of fact by means of evidence adduced by the parties to the dispu­

te and often with the assistance of argument by or on behalf of the

parties on theevidence;

(3) if the dispute between them is question of law, the submission

of legal arguments zby the parties; and

(4) a decision which disposes of the whole matter by finding upon

the facts in dispute and an application of the law of the land to

the facts so found, including, where required, a ruling upon any

disputed question of law".

2
Chief Justice May observed in R
* v Dublin Corporation [Link]

term judicial does not necessarily mean acts of judge or a legal

tribunal sitting for the determination of matters of law, but for

the purpose of this question a judicial act seems to be an act done

by competent authority, upon consideration of facts and circumstances,

3
and imposing liabilities or affecting the rights of others".

1. Cmpr. 73-75, 81-82.

2. (1872) 2 L.K. Ir. 371.
3. Ibid at 376.
 632

Lord Atkin emphasized that the obligation to act judicially is

to be found in the Act establishing the body which makes the decision.

He observed in R. v lhe Electricity Commissioner^, "That wherever, any­

body of persons having legal authority to determine questions affect­

ing the rights of subjects, and having the duty to act judicially#

act in excess of their legal authority they are subject to the contro­

lling jurisdiction of the Kings Bench Division exercised in these

writs". Brett J. had already used the similar language in R. Local

3
Government Board. A gloss was put on this by Lord Hewart in R. v«
4
Legislative Committee of the Church Assembly, ex-parte Hayns-smith.

He said in that case that, "In order that a body may satisfy the requ­

ired test it is not enought that it should have legal authority to

determine question affecting the right of subjects, there must be

super-added to that characteristic the further characteristic that

the body has the duty to act judicially. The duty to act judicially

is an ingredient which, if the test is to be satisfied, must be

5
present".

Thus, every judicial act presupposes the application of judici­

al process. Tnis process involved the application of a body of rules

or principles, "By the technique of a particular psychological

method".Really speaking the rules of natural justice are to be

observed by every authority whose decision affects the rights,reput­

ation, interests of the public. In the beginning the court justified

1
* (1924) 1 K.B. 171.
2. Ibid at 205.
3. (1882) 10 Q.B.D. 309 at 321.
4. (1928) 1 K.B. 411.
5. Ibid at 415.
6. Justice and Administrative Law, Robson,p.33.
 633

their intervention in the exercise of such functions of the ground

that every judicial act was subject to the procedure required by

natural justice. Since at that time the so called administrative

functions were not supposed to follow the rules of natural justice,

the courts denominated the great majority of administrative acts as

judicial so that the observance of the rules of natural justice be

made essential. "Instead of saying, as was infact the truth, that

natural justice must be observed' in both judicial and administrative

acts, the courts stretched the meaning of judicial in an unnatural

way ^very administrative act was thus treated as judicial if it

adversely affected any person's rights or as Lord barker put it,

entailed a penalty. Exactly the same abuse of language was adopted

in requiring a duty to act judicially as a condition of the availab­

ility of the remedies of certiorari and prohibition, When in time the

courts came to forget the paradoxical sense which they had invented

for judicial, they found themselves in difficulty. There seemed to

be nothing but a circular argument; natural justice must be observed

when the function is judicial; and the function is called judicial

when natural justice ought to be observed. If every power affecting

some person's rights is called judicial there is virtually no meaning

1
left for administrative".

1. Wade, [Link]., p.504-505.

 634

Prof, de Smith has given the four tests of the judicial

functions:

1) Conclusiveness,

2) trappings and Procedure,

3) Interpretation and declaration, and

4) Conclusions.

He has stated that at the beginning the authority under a duty to act

judicially was to follow the rules of natural justice. However,the

learned author has concluded that "To say that a duty to observe

natural justice is imposed on uodies that are obliged to act judicia­

lly is usually tautologous; for a duty to act judicially normally

means nothing more than a duty to observe natural justice. But to say

that such a duty is imposed only on bodies exercising functions that

are analytically judicial or quasi-judicial is erroneous. There is

now ample authority for the propostion that an obligation to act judi­

cially in accordance with natural justice may be incurred by a body

exercising discretionary administrative powers which seriously encr-

1
oach on individual interests.

The learned author has narrated how the categories of the

functions became unimportant as far as the application of the rules

of natural justice was concerned. The principles of natural justice

were applied first and foremost to acts which were judicial. Next

the rules were extended to the acts of bodies of more ambiguous stat­

us, such as the court of King Chancellor. Brom there, the arm of the

1. [Link]., p.80.
 635

law reached out to the organs of local government such as Boards of

Health, Boards of Work [Link] powers exercised by these bodies were

plainly administrative, but nevertheless the courts called them judi­

cial, so tliat they could apply to them, the salutory principle that

the power of any kind must not be exercised without due inquiry into

facts. Lord Loreburn made a more sweeping statement in Board of Bduca—

1
tion v Rice that an administrative authority must act in good faith

and listen fairly to both sides for that is a duty lying upon every-
2
one who decides anything.

Thus, we see that the judicial act may be identified by refere­

nce to their formal, procedural or substantive characteristic or by

a comoination of any of them. Prof, de Smith says that, “It would seem

that judicial acts are to be understood as including certain discret-

3
ionary functions that could have been called administrative".

It is clear, therefore, that the judicial emphasis in the

beginning on the nature of the function to be judicial gradually

came to be tempered with the process of administrations. The courts

began to demand the substance, it gaveup the habit of seeing the

form of the action. The term judicial eased its strain and a prefix

quasi came into vogue and it was recognised by the court that for

the purpose of its judicial review on the ground of natural justice

the judicial and quasi-judicial function would also include an admi­

nistrative decision affecting the rights of individual.

1. (1911) A.C.179.
2. Ibid at 182.
3. [Link]., p.89.
 636

Quasi-Judicial Functions:

A quasi-judicial Eunction is an administrative function, “which

the law requires to be exercised in some respects as if it were judi­

cial.... quasi-judicial decision is therefore, an administrative

decision which is subject to some meaasure of judicial procedure,such

as the principles of the natural justice. Since the great majority of

the administrative decision which affects the rights or legal positi­

on of individuals are subject to the principles of natural justice,

most of the administrative decisions.... are quasi-judicial. The

term quasi-judicial accordingly came into vogue, as a epithet for

powers which, though administrative, were required to be exercised

as if they were judicial. This atleast was less of a misnomer than

judical, and made it easier for the courts to continue the work of
1
developing their system of fair administrative procedure". In fact,

this term was used in the beginning in precisely the same sense as

judicial in the earlier cases.

The committee on ministers powers discussed it and came to

conclusion that, A quasi-judicial decision equally presupposes an

existing dispute between two or more parties and involves the prese­

ntation of their case by the parties to the dispute, it also ascert­

ains the fact by means of evidence but it does not demand the submiss­

ion of legal arguments as is the case with the judicial decision.

It does not involve the application of law of the land to the facts

- 2
so found. /
___________( t
1. Prof. Made, [Link]., *PP 74)7, 505.
2. Cmpr. 73-75.
 637

Prof, de Smith gives three meanings to the term quasi-judicial:

1) it may describe a function that is partly judicial and

partly administrative,

2) It may alternatively describe the judicial element in a

composite function,

3) It may describe the nature of a discretionary act itself

where the actor's discretion is not unfettered.

He calls the term ambiguous and says that, "Seldom is it

essential to use this ambiguous term, and it will be avoided here as

far as possible".

The term quasi means *

'not extactly but 'similar to'. Thus,

when an act is done by a body which is not a court in thesense in

which that term is defined but which has all theessential elements of

a judicial acts as done by a judicial tribunal, the body is said to

act quasi judicially. Thus, the Allahabad High Court held in Basant

Singh v Janak Singh , that, 11 In the case of judicial authorities

their orderscan only be either judicial or adininis trative and cannot

possibly be quasi-judicial• Since other authorities are not judicial

authorities, their orders cannot possibly be judicial if they are

3
to be passed judicially/ they can be only quasi-judicial' •

1. [Link]., p.77.
2. A.l.R. 1954, Alld. 447.
3. Ibid at 448.
 638

A quasi-judicial decision is subject to the principles of

natural justice, i'he quasi-judicial function, therefore, is a super­

ior administrative function. It should not be treated as an inferior

judicial function. It is true that the phrase itself suggests that

there is well marked category of activities to which certain judicial

requirements are attached. Yet the function of the minister is admin­

istrative function, “Subject only to the qualification that, at a

particular stage and for a particular and limited purpose, there is

super imposed on his administrative character a character which is

loosely described as quasi-judicial. The language which has always

been construed as giving rise to the obligations, whatever may be,

implied in the word quasi-judicial is to be found in the duty to

consider the objections, which.... is super imposed on a process of

ministerial action which is essentially administrative... In this

hybrid mixture of administrative and quasi-judicial function the two

elements are closely intermingled, but the basic element is the admi­

nistrative act which begins, or may begin, before, and ends after,

the quasi-judicial again leads to a temptation to import into the

area which that expression covers conceptions which are very suitable

to the conduct of an ordinary piece of litigation, but which are

quite unsuitable to the performance of the acts which have been entr-
1
usted to the minister by Parliament".

1. B. Johnson & Co. v Minister of Health (1947)

2 All E.R. 39 Per Lord Green.
 639

Thus, we see that this quasi-judicial function is an administr­

ative function and on that very function the term quasi is a super

imposition, It should not be treated as an inferior judicial function.

Prof. Wade had rightly argued that, "A common misconception is to

regard a quasi-judicial function an as inferior form of judicial func­

tion rather than as a superior form of administrative function. Judges

are prone to bracket 'judicial and quasi-judicial12 together and contr­

ast them with 'administrative' without appreciating that 'quasi­

judicial' means 'administrative'".1

"Ouasi-judicial - Akin to judicial substantively or procedura­

lly, an adjective used in many contexts with various connotations.

An older view was that a quasi-judicial decision differed from a

judicial one in that the former involved a discretionary element

whereas the latter did not. This is inadequate because judicial deci­

sions frequently involve discretion. The term is often used of the

functions and acts of persons and bodies not strictly called judicial,

not being courts or judges, but similar thereto in having authority

or discretion to decide issues involving other persons, such as

justices exercising their licensing jurisdiction. On this view a

decision is quasi-judicial if it emanates from a body which is not a

court, properly so called. The term is commonly used of decisions

involving discretion, but following on a judicial type investigation,

as where a minister, after local inquiry, decides to confirm a compu­

lsory purchase order; but this can equally well, or better by called
.. 2
an administrative function. .

1. [Link]., p.505.
2. The Oxford Companion to Law, p.1024.
 640

The Chambers 20th Century Dictionary defines it as "In appear­

ance only . Ihe uarljowett Dictionary of English Daw defines it as

"Functions akin to those of a judge as those exercised by an arbitr­

ator or an administrative tribunal".2 The Oxford Dictionary defines

it as meaning , 1 Seemingly1,
Not really12
6
5
4
3 1 half 1, 1 almost1 . 2 It has

been observed in Parker v Kirkland^ that, "Quasi-judicial functions

are those which lie mid way between the judicial and ministerial

ones". In Bair v Struck it was observed that quasi-judicial is a

"term applied to theaction, discretion, etc., of public administrati­

ve officers, who are required to investigate facts or ascertain the

existence of facts, anddraw conclusions from them, as a basis for

their official action, and to exercise discretion of a judicial

nature".

The quasi-judicial functions include the power to hear and to

determine proceedings. This function is of judicial character or has

an attribute of the judicial functions. "Quasi-judicial functions are

those which lie mid way between the judicial and ministerial ones,

and when the law in words or by implication commits to any officer

the duty of looking into the facts and acting upon them not in a way

which it specifically directs but after a discretion in its nature

Q
judicial, the function is termed quasi-judicial". "There is nothing

secret or inflexible in the meaning of the term judicial or quasi-

judicial functions as applied to condemnation proceedings and the

1. P. 901.
2. P. 1457. 7. ibid at 74 para 69.
3. P. 1006. g, state [Link] v [Link]
4. 18 N.E.2nd, 709. Board, 339, 487 at 489.
5. Ibidat 714.
6. 29 Mont. 45.
 641

like. In their generally understood and accepted meaning they do not

ascribe to lay public officers or bodies the judicial functions of

courts of justice, but for want of more accurate terms they simply

distinguish acts which are presumed to be the product of judgement

based upon evidence, either oral or visual or both,as distinguished

from those purely ministerial duties which can only be properly per­

formed in one particular way".12

4
3

Our Supreme '-ourt has observed in Neelima Mishra v Harinder

2
Kaur Paintai that, "An administrative function is called quasi­

judicial when there is an obligation to adopt the judicial approach

and to comply with the basic requirement of the justice. When there

is no such obligation, thedecision is called purely administrative

3
and there is no third category".

4
Lord Reid emphasized in Ridge v Baldwin that sometimes a

decision is made in a manner in which a judge makes a decision in a

law courts. "Something analogous to a judge's duty in imposing a

penalty so it was easy to say that such a body is performing a

quasi-judicial task in considering and deciding such a matter and to

require it to observe the essential of all proceedings of a judicial

character; the principles of the natural justice. Sometimes, the

functions of a minister of a department may also be of that character

5
and then the rules of natural justice can apply in much the say way".

4. People Ex—rel. Schau v McWilliams, 77, N.E. 785 at 789.

2. A.l.R. 1990 S.C. 1402.
3. Ibid at 1408.
4. (1963) 2 All E.R. 66, 1964, A.C. 40.
5. Ibid at 75-76.
 642

Thus, when an administrative action partakes of some judicial

characteristics, it is characterised as quasi-judicial. However, to

act judicially, does not mean that the act is judicial. I’he quasi­

judicial function is midway between the judicial and administrative

functions and that is why it would have some judicial attribute in

it, it would not be a inferior or semi-judicial function but it could

be a superior administrative function. Mr. Justice Subbarao of the

Supreme Court, as he then was, observed in [Link] v Andhra

Pradesh State Transport Corporation^ that, "The concept of a quasi­

judicial act implies that the act is not wholly judicial, it descri­

bes only a duty cast on the executive body or authority to conform

to norms of judicial procedure in performing some acts in exercise

2
of its executive power".

Really speaking the complexities of the modern technological

society and the growing habit of the administrative officers to act

in an arbitrary way have brought up the child of quasi-judicial

functions. The committee of minister powers concluded that the quasi-

judicial functions import only some, and not all of the characteri­

stics of the judicial nature and that it is very difficult in theory

and impossible in practice to draw a distinct line between the funct­

ions. The Supreme Court of India has observed in Union of India v

Cynamide India Ltd.3 that, "There is a tendency for the line between

legislation and administration to vanish into an illusion. Administ­

rative, quasi-judicial decisions tend to merge in legislative activi­

ty and, conversely, legislative tends to fade into and present an

T. A.I.R. 1959, S.C. 308.~

2. Ibid at 326.
3. A.I.R. 1987 S.C. 1802.
 643

appearance of an administrative or quasi-judicial activity".12

6
5
4
3

•The modern concept of fair play in action, along with the

concept of delegated legislation, has practically abolished the diff­

erence between these functions. Now the courts emphasize upon the

duty to act fairly and not so much to act judicially. The important

Indian cases that have dealt with this problem are; Keshav Mills Co.
2
Ltd. v Union of India t Mohinder Singh Gill v Chief Election Commiss­

ioner , Swadeshi Cotton Mills v Union of India^, Management of M.S.

Nally Bharat Engineering Co. Ltd. v ^he State of Bihart

In Mohinder Singh Gill v Chief Commissioner^, Mr. Justice

Krishna Iyer observed that, “The dichotomy between administrative

quasi-judicial functions vis-a-vis the doctrine of natural justice

is presumably obsolescent after Kraipak in India and Schmidt in

England".8

The important point, in this connection, is to be noted that

the courts insist upon the proper exercise of quasi-judicial functi­

ons and if there is an improper exercise of that function, that gives

an opportunity for the courts to control the public [Link]­

ously the courts used to call a function administrative when they

preferred not to subject its exercise to review. When they wanted to

make that exercise subject to judicial review they used to call it

judicial or quasi-judicial. Prof, de Smith thus concludes that,"The

economic and political conditions of this age will eventually demand

1. Ibid at 1806.
2. A.I.R. 1973, S.C. 389 at pp. 393-94. 7. A.I.R. 1970, S.C. 150
3. A.I.R. 1978, S.C. 851 at 871-72. 8. 1969, Ch. 149.
4. A.I.R. 1981, S.C. 818
5. Civil Appeal No.1102 of 1990, decided on Feb.9,1990.
6. A.I.R. 1978, S.C. 851 at 870.
 644

a comprehensive review of the machinery of government. It is suggest­

ed that one very necessary reform would be accomplished by providing

for appeals to be lodged against the substance of many of those deter­

minations made by public authorities which are at present immune from

1
judicial review".

fuof. K.C. Davis does not think that the distinctions of funct­

ion is essential for the sound development of the requirement of oppo­

rtunity of hearing., He says that, "Both the judges and the commendat-

ors seem preoccupied with determining whether a function is judicial

or administrative or something else, and both seem to resume that such

labelling is always necessary. Neither in judicial opinions nor in

the literature can one find a recognition of the elementary propos­

ition that a trial type hearing is desirable to resolve disputes of

facts about the parties, but that an argument type hearing is appro­

priate for resolving nonfactual disputes of law, policy or discreti-

2
on". Prof. Davis is of the view that there should be only two disti­

nctions of the functions the first is adjudicative facts and the

second is the legislative facts.

1. The Limits of the Judicial Review, Statutory Discretions and

the Doctrine Ultravires-1948, vol.11, The Modern Law Review,
306 at 325. . ,
2. English Administrative Law-An American View,139 at 151.
 645

Criticism of the Term:

The word quasi-judicial has not found favour with many judges

and commentators. Thus Lord Green M.R. says that, "What is loosely

called a quasi-judicial proceeding an expression well adopted to mis­

lead unless the context in which it is used is kept closely and accur-
1
ately in mind . Prof, ivor Jennings calls it “A one of a number of

pseudoanalytical expressions derived from false premises as to the

separation of powers. All these expressions are misleading and unhelp-

ful for practical purposes". Prof. Robson does not like this word

and criticises the quasi-judicial and the cult of [Link], de

Smith is also of the same view and says that, "The indiscriminate

use of the expression quasi-judicial is particularly confusing. Popu­

larised by the Donoughmore Committee, it has now firmly established

itself in the legal vocabulary, though recent expressions of dis­

favour by the courts and of ridicule by leading authors may perhaps

conduce to its exclusion, its peculiar attraction lie in the fact

that it can be applied to great variety of functions of public autho­

rities, not to speak of the functions of arbitrators, professional

disciplinary bodies and the committees of clubs. If it be assumed

that there is some material distinction between judicial and admin-

instrative functions, then in superable obstacles stand in the way

of any attempt to subsume all these statutory functions under one

or other of the two categories, judicial and administrative, lhese

difficulties are conveniently evaded by describing them collectively,

1. (1947) 1 K.B. 715.

2. The Law and the Constitution, appendix 1.
3. Justice and Administrative Law,p.401-3.
 646

in a noncommittable fashion as quasi-judicial. I'hey resemble judicial

functions in as much as the procedure followed in arriving at the det­

ermination is in varying degrees comparable with that followed in

contentious litigation before a judge in a court of law. But the final

decision of the authority entrusted with the discretion is not of a

judicial character, because it is governed not by a statutory direct­

ion but by a statutory permission to use his discretion. To this

extent the function is administrative".

Prof. Cushman of the U.S.A, says that it is a "Confession of

2
vagueness, an announcement that precise defintion is, impossible".

D.M. Pardon says that the expression quasi-judicial is not only vague
3
but misleading too".

Prof, wade however does not agree with these criticisms of the

word quasi-judicial. The learned professor contends that, "But there

is some danger that its critics may condemn along with it the valuable

judicial process which has sheltered under its name, and that its

fall from favour may affect, on a broader plane, the whole practice

of analysing and distinguishing constitutional functions which brou­

ght the term to birth. Its detractors have not always recognised how

valuable and remarkable a part it has played in the development of

our machinery of judicial control. Accordingly, it has suffered at

times from misapplication and lack of analysis. It might perhaps

have been expected that in the courts, as case succeeded case, the

term might appear now in one context and now in another, while

1. 11 The Modern Law Review, 1948, 306 at 309.

2. i’he Independent Regulatory Commissions, p.8, (quoted in 64
L.Q.R. at p.95).
3. 49, L.Q.R. 95.
 647

students of administrative law would try to define it more rigorously.

But the opposite has happened. Up to quite recent times it has been

consistently developed by the courts,- while its principal academic

critics have denounced it as absured. This is no more matter of words;

it is a matter of functions, functions which lie on the borderland

between the judicial and executive spheres and whose correct under­

standing are of practical interest and significance".

Really speaking, the modern world and its multifarious activit­

ies have expanded the ambit of functions. It becomes difficult, there­

fore, to make a clear and convincing classification of functions. We

cannot draw a precise dividing line between the various functions.

It has been observed by the House of Lords in Leech v Deputy Governor

2
of Parkhurst Prison ' that, "The susceptibility of a decision to the

supervisory jurisdiction of the court does not rest upon some fancied

distinction between decisions which are administrative and decisions

which are judicial or quasi-judicial ... It is a matter of jurisdict­

ion and it cannot be right to draw lines on a purely defensive

basis."

The assertion of House of Lords in that case makes it very

clear that the powers and functions cannot be labelled and defined

in the present state of Governmental affairs where there is a jungle

of functions and as the committee on Minister powers has observed,

4
'the most scientific explorer cannot make a map of jungle'.

1. 'uuasi-judicial and its Background

* vol.10,
The Cambridge Law Journal, 1949, 216 at 217.
2. (1983) 2 W.L.R. 290
3. Ibid at 310,317.
4. M.P.R. p.4.
 648

Sir Ivor Jennings is of the view that, "It is indeed clear not

only that no distinction can be drawn between functions by reason of

their substance or quality, but even that it is not easy to make a

formal distinction in respect of procedure. The doctrine of the separ-

ation of powers gives no assistance in the allocation of functions12

4
3
.'

D.M. Gordon clearly stated that the 'judicial tribunal is conce­

rned with legal rights and liabilities while administrative tribunal

is concerned with the creation of the rights and the liabilities that

they enforce. He has tried to make distinctions on the ground that the

judicial tribunal administers lav; and the administrative tribunal

administers policy and because law and policy are radically different

in their respectively objective and subjective standards, the differ-

2
ence is the difference of law and policy.

However, we should not wander in the jungle of the functions

and powers to explore the real map of the categories of the functions.

The quasi-judicial function is an administrative function having some

judicial character. It does not stand outside the fundamental classi­

fication of judicial and administrative powers. 'It is firmly placed

3 . . .
in the administrative category1. Finally, it is a decision which,

'Ultimately turns on administrative policy, not judicial but admini-

. 4- •
strative .4
.

Io The Law and the Constitution, 283.

2. 49 L.Q.R. 95 at 112-113.
3. Wade 10, C.L.J. 216 at 227.
4. M.P.R. 74.
 649

THE ADMINISTRATIVE FUNCTIONS

ihe administrative function is one of the major groups of funct­

ions of government, 'involving the application of general policy in

particular cases and particular situations, including some exercise

of discretion in particular cases'.The administrative function is

done in accordance with the administrative policy. The administrator

has to take into account the solution of problems in the public inter­

est. He is guided by empirical and practical considerations. It does

not mean that the administrative function is totally divorced from

judicial function. At present the judicial, quasi-judicial functions

include the administrative functions as well and the difference betw-

2
een these functions has been sctoched after Ridge v Baldwin m
3
England and kriaipak in India.

The Indian judiciary has been applying the rules of natural

justice in the cases where domestic tribunals had to take the decision

affecting the rights and interest of the citizen. Prior to independe­

nce the various High Courts applied this principle in cases of

domestic tribunals.

Our judiciary at the first instance insisted that the rules of

natural justice would apply in all the domestic tribunals exercising

the functions which affect the status, reputation and other interests
4
of the persons. The Madras High Court applied it in Naryana v Kannama.

1. The Oxford Companion to Law, Walker, 1980, p.26-27.

2. (1964) A.C.40.
3. A.I.R. 1970, S.C. 150.
4. 62, M.L.J. 608.
 650

The Bombay High Court insisted that when a person is expelled from

the membership of the caste he must be given the full opportunity to

defend himself and that notice must be given to the members of the

caste of the meeting and of what is intended to be dealt with at the

1
meeting. The Calcutta High Court rejected the theory that the rules

of natural justice did not apply in purely administrative act. The

court made it clear that the natural justice demands, "That the female

should have the opportunity of testing those materials and if she

desires, of establishing her competence".This case was with regard

to Court of Wards Proceedings which was an administrative function.,

The Allahabad High Court insisted the application of the rule in

3
Raghubar Dayal v Bmperor. The Madras High Court ruled in Krishnaswamy
4
v Virasamy that the audi alteram partem rule is not confined to

public courts of justice, but it applies to all tribunals, public or

private, of every kind which are vested with or asunie power to decide

on the conduct or rights of parties. The court observed, "There is no

reason why this principle should not apply to the proceedings of caste

meetings which undertake to decide on the conduct of a member of the

caste, meetings which undertake to decide on the conduct of the member

of the caste. ToJbe expelled from caste causes most serious prejudice

to the member expelled and toJhis family in their social relations....

In my judgement, therefore, the alleged expulsion of the plaintiff is

invalid on the ground that they had no notice of the meetings to

expell them or of the charges made against them, and that they had

1. Abdul Rajak Haji Mohd. v Adam Haji Usman Noorani,A.I.R. 1935,

Bombay 367, at 370.
2. Indumati Devi v Bengal Court of Wards,A.l.R.1938,Cal.385 at 390.
3. A.I.R. 1934, Allahabad, 735 at 736.
4. I.L.R. Madras, 133, vol. 10.
 661

y given to them of defending themselves against such

charges”.

lhe Calcutta High Court insisted upon the application of the

audi alteram partem rule by the District Magistrate in Mohammed

23
Keshav v King Emperor.16 The Lahore High Court ruled in R.C.T. Club v
*5
3
Kishen Chand that the club must insure that it acts in accordance

with the elementary principles of natural justice and fair play. The

club must afford a fair opportunity of answering the charges. The

Madras High Court made it clear in Vishakhapatnarn Cooperative. M.T. v

4
Bangaruraju that the Regional Transport Authority in dealing with

applications for permits is bound to act in accordance with the prin­

ciple of natural justice. The Nagpur High Court has held the same in

Gram Panchayat Vidul v Multipurpose Cooperative society.’’ The Punjab

High Court has insisted that the party to whom the order of the judge

may prove detrimental must have the right to oppose. The Court obser­

ved that, "Since the Rice and Arlidge cases were decided a conception

of natural justice has been developed and administrative tribunal are

warned of certain minimum conditions of fair play which courts of law

will insist".

The Allahabad High Court insisted, in Basistha Singh v Smt.

Maharaji7, that the Sub-dividional Officer could not quash the order

of the Panchayati Adalat in favour of petitioner without giving oppo­

rtunity to the petitioner of being heard in that case, lhe other

1. Ibid at pp. 144-45.

2. A.I.R. 1925, Calcutta, 102,1.
3. A.I.R. 1942, Lahore, 179 at 185-86.
4o A.I.R. 1953, Madras, 709 at 711.
5. A.I.R. 1954, Nagpur, 83.
6. Balmukund v Parmanand, A.I.R. 1951,Punjab,401,at 404.
7. A.I.R. 1955, Allahabad, 366 at 367.
 652

important cases of the early period are, Ganesh Mahadev v Secretary

of State for India1, , R. v Nathlal Pitam-
Shripad Dange v H. Divatia23
3 . 5
bar , Badruddin and Sons v Calcutta Corporation45
9
8
7
6
, Remurtuzali Saheb ,
6 7
Resouthekul Krishnarow , Dinshaw Shroff v Income Tax Commissioner ,

Valliappa v Arandi , Oscar Brown v Mathrnul Hirachand^.

Thus, we see that before the advent of our Republican Constitu­

tion our courts had a well developed notion of the principles of

natural justice. The early English Rule of classification of the funct­

ions as judicial, quasi-judicial and administrative were no doubt in

the minds of our judges, yet there was an insistence on the part of

judges upon the application of the principle of natural justice and

fair play in the proceedings which were basically of the administrative

character but the courts chose to term them as judicial or quasi-judi-

cial simply to attract the principles of natural justice. After the

constitution has come into being the status of natural justice has

become more important.

Prof. A.T. Markose writes that, "It will be sufficient here to

mention that the status of the doctrine of natural justice has undoubt­

edly increased under the Constitution from what it was before, as this

fact slowly becomes clear the legislatures ought to accord a correspo­

ndingly increasing recognition to natural justice in statutes. This

process is evident in the successive Preventive Detrition Acts of

1. (1918) 43, Bombay, 221

2. A.l.R. 1948, Bombay 20.
3. (1873) 10 Bomb.H.C.R. 102.
4. A.l.R. 1950, Cal.147.
5. (1943) 1 M.L.J. 247.
6. (1887) 14 I.A. 154.
7. (1943) I.T.R. 172 at 176.
8. (1942) 2 M.L.J. 470.
9. (1947) 49 Bom.L.R. 889.
 653

Parliament. It is hoped that it will now be the endeavour of all

law-making bodies to provide for natural justice as far as possible

and of course to interpret these statutory provisions liberally in

favour of the individual proceeded against.1,1

Our Supreme Court declared in Sangram Singh v Election Tribunal

2
Kotah that, There must be ever present to the mind the fact that

our laws of procedure are gounded on a principle of natural justice

which requires that men should not be condemned unheard, that decision

should not be reached behind their back, that proceedings which

affect their lives and property should not continue in their absence
and that they should not precluded from participating in them".5

Of course, our judiciary was in the beginning influcned by the

English classification theory and that is why in Province of Bombay v

Khushaldas Adwani^ the court did not consider the fairness of procee­

ding. It was only concerned with the characterisation of the function

as quasi-judicial. The courts were following the same trends of class­

ification of functions in shivaji Jathubhai v Union of India5, Shankar

Lal v Shankarlal6. However, in Express Newspaper Ltd. v Union of

India7 Justice N.H. Bhagwati suggested some doubt as to whether the

1, Judicial Control of Administrative Action in India,

A Study in Methods, 1956, pp. 212-213.
2. A.l.R. 1955, S.C. 425.
3O Ibid at 429.
4. A.l.R. 1950, S.C. 222.
5. A.l.R. 1960, S.C. 606.
6. A.l.R. 1965, S.C. 507.
7. A.l.R. 1958, S.C. 875.
 654

distinction between quasi-judicial, administrative or legislative

need really be regarded as determinative and whether some require­

ments of fairness or natural justice might not be implied from the

statutory authority, even if the proceeding were not characterised

as [Link] Justice Bhagwati insisted in that case that

the administrative functions may also attract the application of the

principles of natural justice.

In fact, the Supreme Court has already expressed the view in

Praduat Kumar Bose v C.J. of Calcutta^ that the exercise of the power

to appoint or dismiss an officer is an administrative power. It is

none the less so, by reason of the fact that an opportunity to show

cause and an enquiry simulating judicial standard have to precede the

exercise thereof.

2
The Kraipak case diluted the artificial distinction between

quasi-judicial and administrative function for the purpose of hear­

ing. The court observed in that case that, "The dividing line between

an administrative power and a quasi-judicial power is quite thin and

is being gradually obliterated The concept of rule of law would

lose its validity if the instrumentalities of the state are not

charged with the duty of discharging their functions in a fair and

just manner. The requirement of acting judicially in essence is

nothing but a requirement to act justly and fairly and not arbitra­

rily or capriciously. In recent years the concept of quasi-judicial

1. A.I.R. 1956, S.C. 285 at 291.

2. A.I.R. 1970, S.C. 150.
 655

power has been undergoing a radical change. What was considered as

an administrative power some years back is now being considered a

quas i-j ud ic ia 1 powers11.

Three years before this land mark decision of our Supreme

Court, Mr. J.C. Shah has indicated in State of Orissa v Dr. Binapani

that an administrative order which involves civil consequences

must be made consistently with the rule expressed in the latin maxim

audi lateram partem. It means that the decision maker should afford

to any party to dispute an opportunity to present his case because

there is an implied obligation on his part to do so. The court has?

□
held the same in P.J. Lakhan v Union of India3 and in Jagdew Singh v
4
Jammu and Kashmir.

5
Thus, we see that the Kraipak case has made it possible for

the courts to dilute the distinction between the functions. Now the

courts are applying the principles of natural justice in variety of

cases and the doctrine of legitimate expectation and consultation has

cropped up irrespective of character of the functions. Our Supreme

Court has declared in Swadesh Cotton Mills v Union of India "The

supposed distinction between quasi-judicial and administrative deci-

7
sions, which was perceptibly mitigated in Binapani Dei case was

further rubbed out to a vanishing point in [Link] v Union of

India8".9 Mr. Justice Rangnath Mishra J. opined in [Link] v

Union of India,10 that even when a state agency acts administratively

1. Ibid at 154.
2. A.I.R. 1967, S.C. 1269. 7. A.I.R. 1967, S.C’1269.
3. A.I.R. 1967, S.C. 1507. 8. A.I.R. 1970, S.C. 150.
4. A.I.R. 1968, S.C. 327. 9. (1981) 1 S.C .C. 664 at 683-84.
5. A.I.R. 1970, S.C. 150. 10. A.I.R. 1988, S.C. 687.
6. (1981) 1 S.C .C. 664.
 656

rules of natural justice would apply.1 There remains a distinction

between administrative, legislative function and in legislative func­

tion the audi alteram partem rule does not apply. However, as the

committee on Minister Powers has observed, "It is indeed difficult

in theory and impossible in practice to draw a precise dividing line

between legislative on the one hand and the purely administrative on

the other. Administrative action so often parteks of both legislative

and executive characteristices".We can make a working distinction

between the two functions.

^rof. M.r. Jain is of the view that, "The courts should pierce

the form of the order and seek to find out what the order in question

seeks to achieve. This means that the courts should consider the pre­

order stage as well. Even a seemingly legislative order' may in effect

involve adjudication. If so, hearing becomes necessary. The concept-

ualistic distinction between 'legislative1 and 1non-legislative func­

tion is arising for the same purpose. If courts extend the legisla­

tive concept too much, then it will cut into natural justice. There-
3
fore, a certain sophistication of approach becomes necessary".

The Allahabad High Court again emphasized in I..N. Mathur v the

Chancellor, Lucknow University*4 that the term judicial extends to

the acts and orders of a competent authority which has power to impo­

se a liability or to give decision which determines the rights of the

effected party. The term judicial embraces even the acts of special

tribunals which, though administrative in character, perform the

1. Ibid at 694.
i’. *
The
L volving Indian Administrative Law, 1983,p.62.
4. A.I.R. 1986, Allahabad, 278-79.
 657

functions resembling those of courts

Our Supreme Court has made it clear in Mohinder Singh Gill v

Chief Election Commissioner1 that, "Today in our jurisprudence, the

advances made by natural justice far exceed old fronteers and if

judicial creativity belights penumbral areas it is only for improv-

2
ing the quality of government by injecting fair play into its wheel".

Again in owadeshi Cotton Mills v Union of India3 the court emphasized,

Ihis rule of fair play must not be jettisoned save in very exception­

al circumstances where compulsive necessity so demands. The court

must make every effort to salvage this cardinal rule to maximum extent
possible, with situational modification"^ The court has again reiter­

ated it principle in Dr. Smt. Kuntesh Gupta v Management of Hindu

Kanya Mahavidyalaya, Sitapur3, [Link] v Union of India0, The

Governing body, St. Anthony's College, Dhjllong and other v [Link].

7
Paulpetta of Shillong , State of U.P. and others v Maharaja Dharmendar
8 9
Prasad Singh , B.R. Singh v Union of India , Nilima Mishra v Harinder
Kaur Paintai10, In Charanlal oahu v Union of India11, the Supreme

Court observed that, "Principles of natural justice are integrilly

embedded in our constitutional framework and there pristin glory and

primacy can not and should not be allowed to be submerged by the

excegencies of particular situations or cases. This court must always

assert primacy of adherence to the principles of natural justice in

1. A.I.R. 1978, S.C. 851.

2O Ibid at 873.
3. A.I.R. 1981, S.C. 818. 9. A.I.R. 1990, S.C. 1.
4. Ibid at 832. 10. A.I.R. 1990, S.C. 1402.
5. A.I.R. 1987, S.C. 2186. 11. A.I.R. 1990. S.C. 1480.
6. A.I.R. 1988, S.C. 686.
7. A.I.R. 1988, S.C. 2005 .
8. A.I.R. 1989, S.C. 1 .
 658

all adjudications".12
*5 Earlier,
3 in Lilima Mishra's case the court

observed that, "A large number of authorities are on this point

and we will not travel over the field of authority. What is now

not in dispute is that person concerned must be informed of the

case against him and the evidence in support there of and must be

given a fair opportunity to meet the case before the adverse deci-
2
sion is taken".

Prof. M.P. Jain has rightly stated that, "The extension of

the right of hearing to the person affected by administrative process

has been consumated by extension of the scope of quasi-judidical

and natural justice as well as by disarding the distinction between

quasi-judicial and invoking the concept of fairness in administrative

3
action. Hearing has, thus, become the norm, rather than an exception".
4
in Maneka Gandhi v Union of India Justice Bhagwati declared that,

"The principle of reasonableness, which legally as well as philosoph­

ically, is an essential element of equality or non-arbitrariness

pervades Article 14 like a brooding omnipresence and procedure

contemplated by Article 21 must answer the test of reasonableness

in order to be inconformity with Article 14. It must be right and

just and fair and not arbitrary, fanciful or pppressive, otherwise,

it would be no procedure at all and the requirement of Article 21

5
would not be satisfied".

1. A.I.R. 1990, S.C

* 1480 at 1547.
2. A.I.R. 1990, S.C. 1402 at 1409. .
3. Principles of Administrative haw, 1986,p.145.
4o (1978) 1 S.C.L. 248.
5. Ibid at 2183.
 659

Thus our courts have tried to do away with the artificial

distinction between the functions and have held that the purpose of

natural justice is to secure justice and to prevent the miscarriage

of justice. It is applied in every adjudicative process. The rule

of fair play is essential in every decisional proceedings. The concept

of fairness has done away with the requirement of labelling.

It is made clear, here that the doing away with the distinction

and labelling of the functions does not mean that the courts will not

use the term judicial, quasi-judicial and administrative. It will

emphasize upon the supplication of the rule of natural justice in

these functions irrespective of their nature. Of course, the court

will not apply these principles blindly but will see that the rules

are applied in particular manner, in particular cases having regard

to particular circumstances. The concept of welfare state has on the

one hand extended the arms of the state to reach almost all the

fields of functions, on the other hand it has given the courts the

large powers to prevent the miscarriage of justice.

We may conclude with the following observation of Mr. [Link]

"In India the law of natural justice has progressed from quasi­

judicial to civil consequences and from civil consequences to fair

play. The concept of quasi-judicial function has played its part

effectively in attending the ambit of natural justice to the various

functions of the administration during the beginning of the century.

As the powers of the modern administrative state grew, the tradition­

al concept of infringement of right has become not a sure yard Stic.

 660

ave hence evolved the concept of civil consequences to

bring in cases which involved no right of the individual/ The new

concept of fair nlav

y which
k. an authority should observe, gives the

freedom to extend the requirement of the principles of

natural justice even to purely administrative functions."1

er, in Kehar Singh's case the Supreme Court upheld the

oral hearing by the President on the ground that the

proceeding before the President is of an executive character. Sali

orabjee says, Apparently it overlooked the obliteration of the

distinction between quasi-judicial and executive functions effected

by Its land marks judgements. Besides the real test is not the

nature of the function but the effect of its exercise on the concerned
persons, and in thiscase it is literally a question of life and death1.* 2

l.’New Horizons of Natural Justice', vol. 2, The Academy Law

Review, (1978), p.253 at 284.
2. The Tinies of India, 2.1.89.
 661

[Link] of the Audi Alteram Partem Rule:

The audi alteram partem rule envisages that the person affected

is given personal notice, he is informed of the charges and the place

and the time when he shall have to answer them, he should be afforded

an opportunity to cross examine the witnesses produced against him,he

should be given an opportunity to make his representation through the

person of his choice, and also he should be given an opportunity to

make his representation as to why the proposed punishment should not

be inflicted upon him

* In Labouchere v Lari of wharncliffe\ Vessel

M.X. insisted that when the conduct of the one of the members of the

committee is investigated the committee, “Ought to see that what the

conduct has been and what excuse or reason can be given by the memb­

ers for it, and they ought to give notice to that member that his

conduct is about to be enquired and afford an opportunity of stating

2
his case to them"/ The similar view was expressed by Lord Chancellor
3
Halsbury in Addrews v Michell.

The audi alteram partem rule sets minimum standards of fairness

in adjudication. The audi alteram partem rule does not ensure that

the proceedings shall bear resemblance to courts strictosensus . The

only requirement is that the rules of natural justice must be followed.

1. (1879) 13 C.H.D. 346.

2. Ibid at 350.
3. (1905) A.C. 78.
 662

Notice and hearing are the two important contents of the rule

of the audi alteram partem. ’’Notice and opportunity to be heard are

fundamental to due process of law”per Douglas J. in Joint Anti fasci­

st Refugee Committee v McGrarh, 3141 U.S. 123 at 178. The early cases

suggest that the breach of the audi alteram partem rule was recogni­

sed by the court on the sole ground that agrieved persons were not

given notice to theeffect that what were the charges and what were

the actions to be taken or proposed to be taken and this failure to

give notice was taken to mean the denial of an opportunity to be

heard on that matter. Important cases on this point are: '^he Bags
1 2 3^
case , Cooper v Wandsworth Board of Works , Ridge v Baldwin , Glynn
4 5
v Keel University , R. v Havering J.J< ex-parte Smith , Annamunthodo
6 7
v Oilfield workers Trade Union , Mardana Mosuq Trustees v Mahmud 9
'8 9
Lauliatmang v Disciplinary '-ommittee , R. v Liver pool Corporation ,
Raven v Southampton Justice1*1, Margan v Licencing Justice of Ayles

Ford11, B.B. Company v Onarth Semions for Country of London1?

A prior notice enables a person directly affected by proposed

administrative acts to (1) make representations on his own behalf;

(2) to appear at a hearing; (3) to prepare his case effctively;

(4) to give him the opportunity of offering to resign or to surrender

his licenc:e rather than to face the prospect of formal condemnation.

1. (1615) 11 [Link].93b.
2. (1863) 14 C.B. (N.S.) 180.
3. (1964) A.C.40.
4. (1971) 1 W.L.R. 487. 10. (1904) 1 K.B. 430.
5. (1974) 2 All E.R. 484. 11. (1906) 1 K.B. 437.
6. (1961) A.C. 945. 12. (1906) 1 K.B. 695.
7. (1967) 1 A.C. 13.
8. (1968) A.C. 391.
9. (1972) 2 Q.B. 299.
 663

Notice is the first limb of a proper hearing. It must be real#

definite and it must give ample time to the person notified to answer

the charges. Thus, the Andhra Pradesh High Court observed in [Link]-

* that "Opportunity given

kumari v Municipal Corporation of Hyderabad12
6
5
4
3

to the petitioner to show cause, is not at all reasonable as only

three days time was given to him. I therefore, quash the impugned

notice".

While it is sufficient to take reasonable steps to serve the

notice and the actual serving may not be necessary yet as has been

observed in R. v Kensington and Chelsea Rent Tribunal, ex-parte

3
Mcfarlane such proceeding may be valid but the tribunal shall be at

liberty to reconsider its decision in the light of representation

subsequently made by absent party. Thus, the general view should be

that the notice must be given with sufficient time, must be served

and must be received by the parties. The notice must contain the

charges specified with particularity. Notice is the minimum obliga­

tory condition, the violation of which would be the violation of

natural justice. It is thus, the part and parcel of the fair hear­

ing. The cases that have held so are, East India Commercial Co. v
d 5
Collector of Customs , Prem Bus Service v R.T.A., Munici al Board
6 7
V State Transport Authority, [Link] v C.I.T , Inayatullah
8
v Custodian, Evancee Properties , C.A.T.A. Sales Cooperative Socie—

ty v A.P. Government9, Laxmi Narayan Anand Prakash v Commissioner of

1. A.I.R. 1990, A.P. 159.

2. Ibid at 160.
3. (1974) 1 W.L.R. 1486.
4. A.I.R. 1962, S.C. 1793.
5. A.I.R. 1968, Punjab 344.
6. A.I.R. 1965, S.C. 459.
3: i:S: HB?-
9. A.I.R. 19.7, s.c. 2313.
 664

Sales Tax , Jaipur Udyog Ltd. v Commercial Tax Officer2, High Commiss-

ioner for India v I.M.Lal3*

A notice must adequate if it is insufficient and inadequate and

the grounds are not specific such notice shall not be treated as

notice at all. The important cases that have held so are: Nasir

Ahmed v Assistant Custodian General Evacque Property^, J

M«[Link]
* —
• . 5 A
ies v Union of India , N.S. Transport. Co. State of Punjab , J. Vilan-
*7
gandar'V Executive Engineer ; However# there is no invariable standards

which must be followed to satisfy the adequacy of notice and it may

vary from case to case.

The important test is that the interest of the parties should

not be prejudiced because of the non-availability of notice and the

courts conscience must be satisfied that the person concerned was

given a fair chance to rebut the charges. In their ’Law of Meetings’,

^ebag Shaw and Town Send, make it clear that, "Prima facie, where

notice is not effectively served, i.e. is not received by the intend­

ed recipient, the position corresponds to that in which no notice is

Q
given, and the meeting will in consequence be invalidated". Justice

Krishna Iyer has very rightly remarked that, "Justice must be felt

to be just by the community if the democratic legality is to animate

the rule of law. And if the invisible audience seen a man s case

disposed of unheard, a chorus of no confidence will be heard to say,

that man has no chance to defend his stance".

1. (1980) 46 S.T.C. 71 (Allahabad).

2. (1979) 44, S.T.C.459(Rajasthan).
3. A.I.R. 1948,P .C., 121 at 126. 7. A.I.R. 1978, S.C. 930.
4. A.I.R. 1980,S.C., 1157. 8. 1950, 2nd ed. p.53.
5‘ A.I.R. 1980,Delhi,200. 9. Mohinder Singh Gill vC hief
Election c ommissioner,A.I.R.
6. A.I.R. 1976, S.C. 57.
 & 665

The important cases on this point are; Laxmi Narayan Gupta v

Puri , Lalita Prasad v Inspector General of Police2, Burn and Co. v

Iheir Workmen , Jaishankar v State of Rajasthan4, Deoki Nandan v

5 7
State of Bihar , Kohtas Industries v Workmen5, [Link] v Jagmohan,

Keshav Mills v Union of India0, B.R. Singh v Union of India^, [Link]

Kumari v Municipal corporation of Hyderabad.10

Hearing:

Hearing is the second important content of the audi alteram

partem rule. Prof, de Smith says that, "What the audi alteram partem

rule guarantees is an adequate opportunity to appear and be heard

(subject to the proviso that in some situations prior notice may be

valid although not in fact received). The rule does not guarantee

that a hearing or inspection shall never proceed or that action shall

never be taken to a person's detriment unless every one entitled to

appear does in fact appear. There are indeed situations in which it

will normally be unjust to proceed with a hearing in the absence of

a person liable to sustain serious detriment by the outcome; but it

may still be justifiable in such situations to proceed if that person

has absented himself without reasonable cause. Clearly it will not

be justifiable to proceed if the time or place fixed for a hearing

is such that an interested party cannot reasonably beexpected to

attend or (if he attends) to be able to prepare his case properly.

1. A.I.R. 1954, Cal. 335. 6. A.I.R. 1977, S.C. 1867.

2. A.I.R. 1954, Alld. 438. 7. A.I.R. 1981, S.C. 136 .
3. A I.R. 1957, S.C. 38. 8. *
A.I.R. 1973, S.C 389.
4. A.’l.R. 1956, S.C. 492. 9. A.I.R. 1990, *S.C 1.
5‘ ( 1971) 10. A.I.R. 1990, A.P. 159.
1 S.C.C. 330.
 666

Nor should the tribunal proceed if it has reason to believe that a

party has failed to appear through some misapprehension about the

hearing.12
3
4

The rule of hearing simply means that the person affected is

given an adequate opportunity to rebut and explain the evidence given

by the opposite party. Thus, Swift J. has observed in Harriot v

2
Minister of Health that, 11 If one party is heard without the other

having an opportunity of knowing what he had said or of testing what

he has said by cross examination, or of making answer to what has

been said, then clearly there has been an infringement of the rules
3
of natural justice". Lord Loreburn has said in Board of Education v
4
Rice that the administrative authority should always give "A fair
opportunity to those who are parties in the controversy".8 Lord Hald­

ane observed in Local Government Board v Arlidge8, "They must deal

with the question referred to them without bias and they must give

to each of the parties the opportunities of adequately meeting the

case made against them". Justice Venkatramaiah Iyer J. said in Union

of India v T.R.Varma8 that, "Stating it broadly and without intending

it to be exhaustive, rules of natural justice require that a party

should have the opportunity of adducing all relevant evidence on

which he relies, that the evidence of the opponent should be taken in

his presence and that he should be given the opportunity of cross exa­

mining the witnesses examined by that party and that no material should

be relied on against him without his being given an opportunity of expla­

1. [Link]., p.200-201. 5. Ibid at 182.

2. (1973) 154 L.T. 47. 6. (1915) A.C. 120.
3. Ibid at 50. 7. Ibid at 140.
4. (1911) A.C. 179. 8. (1958) S.C.R. 499.
 667

ining them".

2
Bose J. emphasized in State of West Bengal v Anwar Ali Sarkar

that the procedure should be such as is realised by fair minded,

reasonable unbiased and resolute men who are not swayed by emotion

or prejudice and call it reasonable, just and fair.

The Indian judiciary has followed the lead given by Venkatarama

Iyer J. and has observed the same in the following cases; Phulwari
Tea State v Its Workmen^, M.P. v ^hintaman^, Mysore v [Link]^,

New Prakash Transport Co. v New Suwarna Transport Co.^, Dr. Sint.
, 7
Kuntesh Gupta v Management of Hindu Kanya Mahavidyalaya,^itapur
8
K.I. Shephard v Union of India , State of U.P. v Maharaja ^harmendra
9 10
Prasad Singh , Neelima Mishra v Harindar Kaur Paintai , B.R. Singh
11 12
v Union of India , Charan Lal Sahu v Union of India , Shridhar v
13
hagarpalika Jaunpur

It must be made clear that there is not a formal way or a

settled method of hearing. The only important point in the connection

is that the person concerned should have a reasonable opportunity

of presenting his case but it is the practiability rather than formal­

ised legality that bears importance. Justice Krishna Iyer has rightly

observed that "It is untenable heresy, in our view, to lockjaw the

victim or act behind his back by tempting invocation of urgency,unless

the clearest case of public injury flowing from the least delay is

1. Ibid at 507. 8. A.I.R. 1988,S.C. 686.

2. A.I.R. 1952, S.C. 75 at 104. 9. A.I.R. 1989,S.C. 997.
3. (I960) 1 S.C.R. 32. 10. A.I.R. 1990,S.C.1400.
4. (1961) A.I.R. S.C. 1623. 11. A.I.R. 1990,S.C. 1.
5. (1963) 2 S.C.R. 945. 12. A.I.R. 1990,S.C.1480.
6. (1967) S.C.R. 98. 13. (1990) (60) F. L. R. 386, S .C
7. A.I.R. 1987, S.C. 2186.
 668

self evident. Even in such cases a remedial hearing as soon as urgent

action has been taken is the next best< Our objection is not to

circumscription dictated by circumstances, but to annihilation as an

easy escape from a benignant, albeit inconvenient obligation• The

procedural precondition of fair hearing, however, minimal# even post-

decisional, has relevance to administrative and judicial gentleman—

liness".

Tucker L.J. observed in Duke of Norfolk's case^, "There are

no words which are of universal application to every kind of enquiry.

The requirements of natural justice must depend on the circumstances

of the case, the nature of theenquiry, the rules under which the

tribunal is acting, the subject matter that is being dealt with and
3
so forth". The circumstantial flexibility of fair hearing has also
been emphasized by Lord Ridge in Wiseman v Borneman^ and he has said

that the fundamental general principle should not degenerate into a

series of hard and fast rules. Our Supreme Court has also emphasized

the same in Charanlal Sahu's case where it has been said that all

civilised countries accept the right to be heard as part of the due

process of law where questions affecting their rights privileges, or

claims are considered or adjudicated. The court has emphasized that,

"But at the same time, these must be applied in a particular manner

in particular cases having regard to particular circumstances". In

this very case the court has observed that "Right to a hearing or

1. Mohinder Singh Gill v Chief Election Commissioner,

[Link]. 1978, S.C- 851 at 874.
2. (1949) 1 All E«R. 109.
3. Ibid at 118.
4. (1971) A.C. 297.
5. A.I.R. (1990) 1480 at 1547.
 669

representation before entering into a compromise seems to be embod­

ied in due process of law understood in the sense the term has been

used in the constitutional Jargon of this country though perhaps not

originally intended".12
6
5
4
3

It has been observed in many cases that oral hearing is not an

essential part of natural justice and that natural justice does not

necessarily predicate an oral hearing unless the context requires

otherwise. The important cases that have held so in India are;

Jagdish Chandra v University of Punjab , in Re Shanguma Mudaliar ,

[Link] v State of Madras'1, [Link] v Vice Chancellor,Gorakh

„ . ..5
pur University ,

However, oral hearing must be regarded as the integral part of

opportunity of hearing and as Prof. Markos has pointed out the conser­

vative form of the statement of law should not be welcomed and that,

"A more bold statement would be that a hearing indicates an oral

hearing unless the statute expressly or impliedly excludes it".A

hearing therefore, means an oral hearing. It has been held so in R.

7
v Immigration Tribunal ex-parte Mehmet . However, it is upto the

tribunal to decide the form of hearing. The question of personal hear­

ing is one of discretion and not of jurisdiction. Whether oral hearing

is necessary depends upon the circumstances of a case and the nature

of the deciding authority. The important cases that have held so are;
g _ 9
[Link] v State of Madras , [Link] v conector of Customs , Union

1. Ibid at 1541
2. A.l.R. 1952, Punjab 395. 7. (1977) 1 [Link]„495.
3. A.l.R. 1951, Madras 276. 8. A.l.R. 1950, S.C.27.
4. *
A.l.R. 1950, S.C 27. 9. A.l.R. 1957, S.C. 648.
5. A.l.R. 1975, Alld. 20.
6. [Link].. D. 220.
 670

of India v J.P.Mittal1, Kapur Singh v Union of India23

, M.P. Industries
□
V Union of India , P. Bhargava v Supdt. of Police4, ^avindra Nath

Ojha v Union of India5, Maharashtra S.R.T.C. v Niranjan S.Gode6,

Chandra Prakash Jain v Union of India7,' Ratiram Singh Yadav v Princi­

pal Government Polytechnic Harda?

Thus, we can conclude that the form of hearing cannot be given

*
a definite form The oral and personal hearing may be given but it

should not be made a rule otherwise it will be very difficult specia­

lly in student unrest cases to apply the rule of hearing. In educati­

onal institutions in the matter of maintaining discipline requirement

of natural justice must vary otherwise, the indiscipline among students

will grow because of the insistence on oral and personal hearing and

that will bring a bad name to the rule of hearing. We must remember

the observation of Prof. Robson when he says that, "The rules of

natural justice are unquestionably valuable, both subjectively and

objectively. If they are violated, injustice may be done and parties

may have psychological sense of grievance. But even if they are

observed with the utmost zeal, injustice may still be done. In short,
9
natural justice is not merely enough".

1. A.l.R. 1971, S.C. 1093. 7. A.l.R. 1985, Alld.362.

2. A.l.R. 1960, S.C. ^93. 8. A.l.R. 1990, M.P. 129.
3. A.l.R. 1966, S.C. 471. 9. Justice & Administrative Law,
4. (1984) 1 S.L.R. 23. 1947, 409.
5. (1985) L.A.B.I.C. 194.(labour and
industrial cases).
6. (1985) L.A.B.I.C. 194.
 671

Right to Cross Examination;

Right to cross examination is an essential element of right to

hearing. If it is denied that will be usually a denial of natural

justice. It is a fundamental rule of evidence that except for certain

exceptions provided in some of the provisions of the evidence Acts,

no statement should be used against any person unless he has had an

opportunity of testing the statement or matter by cross examination.

The person concerned may be given full opportunity to cross examine

the witness. It is an inherent right when a statement is sought to be

filed, the principles of natural justice demand that he should be

offered the opportunity to cross examination. If this valuable right

of cross examination is denied it simply means that the proceeding

is not a valid proceeding.

Right to cross examination has been recognised even by ancient

Indian Law givers. In ancient India the administration of justice had

been regarded not merely as a matter of public order but as a sacred

and religious duty, '^pasthumbs' and 'Gautam Sutras' have laid down

that witnesses should beexamined and in the course of the cross exa­

mination if false hood is detected, the witnesses should be condemned

and should be given severe penalty. The ^rthashastra of Kautilya

provides temporal punishment for perjury.

1. Book III, ch.I/2.

 672

The method of examining witnesses is given by Manu^".

The examination of witness is to be made in court and in the presence

of the parties. The Indian tradition gives power to cross examination

of witnesses to judges who put questions to the witnesses. However,

the party concerned is allowed to bring to the notice of the court

the circumstances disqualifying or discreditting a witness, but this

must be done when the witness is giving evidence. Witnesses are first

to be exhorted by the judge to speak truthfully on pain of the divine

displeasure and consignment of hell, and they are then examined in

the presence of the parties. It was believed at that time that when

the witness testified himself the divine agencies are at work and

when he gives the false witness he would suffer loss, pain or bereave­

ment within a short time of his gving evidence. The judges are given

a general warning that after the examination of witnesses the cause

must not be judged on mere precepts of law, and that the determination

should be guided by common sense and equity, as otherwise justice

will fail. Katyayan says that when in the cross examination the wit-
2
ness tells a lie he should be put to questions again and again.

Commenting on the test of Katyayan, Varadraja says that if there is

a doubt in the utterance of witness, he should be put to cross exam­

ination again and again but if there is no doubt about the truthful-

1. 8-79-80.
2. Quoted in Vyavaharnirnaya, 1942,p.119.
 673

1
ness, the question should not be put to him many times.

Prof. Wigmore says that, "The cross examination is beyond any

doubt the greatest legal engine ever invented for the discovery of

truth, cross examination, not trial by jury is the great and perma

nent contribution of the Anglo-American system of law to improve

2
methods of trial procedure".

The new testament states that when the Roman Prisoner Paul

arrived at Jeruslem the high priest and the Chief of the Jews infor­

med him against Paul, and besought him. Festus answered, "It is not

the manner of Romans to deliver to any man to die, before that he

which is accused have the accusers face to face and have licence to

answer for himself concerning the crime, laid against him. At the

trial the Jews which came down from Jerusalem stood round about, and

laid many and grievous complain against Paul which they could not
prove".3

Lord O'brian points out that when Emperor Trajan was asked to

advise the Governer of Bithynia as to the treatment of a new sect

known as Christian, the Emperor advised that, "Anonymous accusations

must not be admitted in evidence as against any one, as it is intro­

ducing a dangerous precedent, and out of accord with the spirit of

our times".
4
1. Ibid ~
2. Evidence, vol.V, 1940,1367.
3. Acts, C, 25 at Verse 2.
4. National Security and Individual Freedom, 1955,p.62.
 674

Confrontation and cross examination was not only known in

the crucial stages of trial by ordeal and trial by oath, it was

also known in a modified form in the mode of trial brought to England

by the Normans, i.e., trial by combat. Here the accused was permitted

to challenge the accuser to resolve the conflict by appeal to God's

judgement in the field of battle. He has also permitted to challenge

the complaint witnesses offered by the accuser to prove the substan­

tiality of his charge".12
3

In 1637, when Lilburne, a leader of the Dissenters, was accused

of illegally importing into the country books which attacked Bishop,

he stated, "I know it is warrantable by the law of god, and I think

by the law of the land, that I may stand on my just defence and not

answer your interogatories, and that my accusers ought to be brought

2
face to face, to justify what they accuse me of".

President Eisen Hower said in 1953 that there was a ^bilene

Code "Meet any one face to face with whom you disagree. You could

not sneak upon him from behind, or do any damage to him, without

suffering the penalty of an outraged citizenry. In this country, if

some one dislikes you, or accuses you, he must come up infront, he

cannot hide behind the shadow. He cannot assasinate you or your

3
character from behind".

1. Denial H. Pollitt, The Right to Confrontation, its History and

Modern Dress, Journal of Public Daw, [Link], 1956, 381 at 386.
2. Sir Thomas Smith, Commonwealth of England,Quoted in Stephen,
Criminal Procedure from the 13th to the 18th Century, Anglo-
American Legal History, 1908, 443 at 506.
3. Press Release?Nov. 23, 1953.
 675

The courts in U.S.A, have recognised the right to cross exa­

mination. It has been regarded as part of the concept of ordered

liberty. The important cases are; Reviaro v United otates\ ^enscks

v United States 2 , Brown v United States^, Carter v Kubler^, United

• 5 (Z. 7
States v Hicks , Matusow v United States0, Relly v Pinkus , Ohiobell

Telephone Co. v Public Utilities Commissioner^, Inrelivert

Inremurchison^^.

Denial H. Pollitt concludes that, "The right to confrontation

results from experience over the centuries that there is not better

way to ascertain the truth when factual issues are disputed. The

right to confrontation comes to the fore when the protection of

individual liberty is thought to clash with the demands of national

security. However, this problem is not peculiar to the mid-twentieth

century. The problem existed over 2000 years ago when the Roman

Emperor Trajan advised his Governor that "anonymous accusations must

not be admitted in evidence" against "a new sect known as Christians".

The problem existed in seventeenth century England and resolved in

favour of the religious political heretic. The problem existed in

eighteenth century America, and thosewho founded our nation wrote

the right to confrontation into the Bill of Rights of our Constitut­

ion. The right to confrontation is our birthright, but it is not

ours to give away. We hold it in just to use and conserve, and pass

on intact to our children and our children s children. The trust, to

11
this writer, should be held inviolable .
------------------------------------------------ 6. 229 F,end,335(C.A.5th,1956)
1. 353, U.S. 53, 60-61. at 347.
2. 353, U.S. 657, (1957) 7< 338, U.S.269 (1949) at 276.
3. 356, U.S. 148, 155-56(1958). g’ 301, U.S.292 (1937) at 300.
4. 320, U.S. 243, 247(1943). 9. 333, U.S.257, (1948)
5. 37,F.2nd,289 (C.A.9th, 1930) J?’ Ibid at 273.
at 292. 1:L* [Link]., at 413.
 676

In India after the decision of the Supreme Court in Varma's

case it has been a settled principle of law that where the evidence

of witnesses is relied on as against a party, natural justice requir­

es that the party affected should have the opportunity to cross exam­

ination such witnesses because a person cannot be said to have an

adequate opportunity unless he has an opportunity of destroying that

case by cross examination. The important cases on this point are;

Anglo-American Direct Tea Trading [Link]. v Labour Court, Coimbatore,

Anand Bajar Patrika v ^heir Employees^, Binny Ltd. v Their Workmen^,

5 6
Hasanlal v State of Rajasthan , Jainendra Nath Das v State of Orissa,
[Link] v Trade Fair Authority of India^, Sawai Singh v State of
8 g
Rajasthan , Shyam Sunder Mishra v State of Orissa .

The right to cross examination is, thus, an important ingradi­

ent of the right of oral hearing. It has more importance in administ­

rative proceedings. Our Supreme Court has observed in State of Kerala

v K.T. bhadule10 "It can hardly be disputed that cross examination is

one of the most efficacious methods of establishing truth and exposi­

ng falsehood'.'11 The Allahabad High Court has expressed the similar

12
view in Avtar Singh v State of U.P.

1. (1958) S.C.R. 499 at 507.

2. (1970) (20) F.L.R. 431.
3. (1963) (7) F.L.R. 240. 11. Ibid at 1631.
4. (1972) (25) F.L.R. 74. 12. 1989 (59) F.L.R. ^llahabad 23.
5. (1976) (32) F.L.R. 161.
6. A.I.R. 1954,Orissa, 241.
7. 1985 (2nd) L.L.J. 193.
8. 1986 (2nd) L.L.J. 390.
9. A.I.R. 1957, Orissa 222.
10. A.I.R. 1977, S.C. 1627.
 677

However, if the affected person does not avail himself the

opportunity of cross examination and later on attacks the decision

on the ground that he has not been given an opportunity to cross

examination the witness hence it is against the rules of natural

justice, the court will not entertain this pleading. "The doctrine

requiring testing of testimonials statements by cross examination has

always been understood as required not necessarily and actual cross

examination, but merely an opportunity to exercise the right to

cross examine if desired. The reason is that, wherever, the opponent

has declined to avail himself of the offered opportunity, it must be

supposed to have been because he believed that the testimony could

not or need not be disputed at all or be shaken by cross examination.

This doctrine is perfectly settled".1

It must be remembered, however, that the opportunity of hear­

ing which includes the right of the cross examination of the witness­

es is not an instrument through which an unnatural expansion of the

principles of natural justice can be sought. The court must be ready

to deny the relief sought for on the account of the violation of the

rules of natural justice if the totality of circumstances satisfies

the court that there is no denial of natural justice on account of

the denial of the cross examination. Our courts have held in many

cases after studying the circumstances, the petitions were filed'

simply on the ground that the right to cross examination was denied,

that the proceeding was not void. Specially in the cases of using

the unfair means at the examination, and in cases dealing with the

1. The Evidence Act; by Sarkar,Sth Edn. at 1133-34.

 678

offences with girls, the courts have held that it is not practicable

to give the opportunity to cross examine the witness. The important

1
cases on this point are; Kamalendu Prasad v Sambalpur University ,

Pramila v Secretary, Board of Secondary Education2, Ram Narayan v

3
Calcutta University , Hirahath Mishra v Rajendra Medical College,

Ranchi , Principal, Government Engineering College, Trichur v John ,

Sudhir Kumar Suri v Principal, Mahakoshal Arts Mahavidyalaya,Jabalpur^
*7
Peerzada Ahmed Salim Khan v Vice-Chancellor, Aligarh Muslim University.

The Madhya Pradesh High Court has held in Ratiram Singh ^adav v

Principal, Government Polytechnic, Harda^, that, "In educational insti­

tutions in the matter of conducting disciplinary proceeding a full-

fledged inquiry or trial as in a criminal action is neither expected

nor feasible as part of requirement of natural justice. In the matter

of maintaining discipline, requirement of natural justice varies with

circumstances in each case, and nature of indiscipline to be dealt

with by the authorities.

9
In instrumentation Ltd. v Labour Court and another the Patna

High Court held that when the opportunity of cross examination is

not asked for and no dispute was raised about veracity of statements

the party cannot succeed in any subsequent demand that there was no

such opportunity.

1. A.I.R. 1976, Orissa 134.

2. A.I.R. 1972, Orissa 224.
3. A.I.R. 1982, Calcutta, 1.
4. A.I.R. 1973, S.C- 1260.
5. (1) L.L.J.366 (Kerala High Court)
6. A.I.R. 1973, M.P. 278.
7. A.I.R. 1978, Alld. 76.
8. A.I.R. 1990, M.P. 129 at 134.
9. 1989, (59 F.L.R.) Summary of cases p.45.
 679

The cross examination may not serve the end of justice in

certain circumstances. There may be special circumstances where the

witnesses may not like to be confronted with the person against whom

they are testifying. In such cases the right to cross examination does

not exist. Our Supreme Court has held so in Jammu and Kashmir v
Bakshi Ghulam Mohammed?- In cases where the female are witnesses in

connection with the misbehaviour with them, it will be really an

embrassing situation for the female witnesses. For the social reasons

and to save the modesty and dignity of the women folk, it would be

better not to allow the person concerned to cross examine the women

witnesses. The court has rightly rejected the pleas of the male
2
students in Hiranth’s case that the proceeding was vitiated by not

affording them an opportunity to cross examine the girl students.

□
The court has held the same in [Link]'s case , The right to cross

examination is, no doubt, a very important right but it is not an

4
absolute right. In [Link] v State Bank of India , the Supreme

Court held that when the fact is not disputed there is no point in

demanding right to cross examination in formal way.

It is also made clear here that the technical rules of evidence

do not form the part of the proceedings where rules of natural

justice are to be applied. Only the probative value of the evidence

has to be taken into account. The witnesses shouldbe ^examined, the

right to cross examination should be afforded as far as possible

and the person charged should be given an opportunity to rebut the

evidence laid against him.

1. A.I.R 1967, S.C. 122.

2. A.I.R 1973, S.C. 1260
3. A.I.R 1973, M.P. 278.
4. A.I.R 1984, S.C. 273.
 680

Representation by Lawyers:

'Legal representation is one of the contents of the rule of

hearing. Article 22 (1) of the Indian Constitution guarantees the legal

representation and says that no person shall be denied the right to

consult, and to be defended by, a legal practitioner of his choice.

The recent rapid expanding of governmental functions makes it more

essential to have the legal representation because of the technicali­

ties of the functions of administrative agencies 1 Prof. Wade is of

the view that "The right to representation by a lawyer or other person

may prove to be a part of natural justice in suitable case. There is

also a right to legal assistance and representation under the European

Convention on Human Rights".^

Prof. Allen is of the view that, "Experience has taught me that

to deny persons who are unable to express themselves the services of a

2
competent man is very mistaken kindness".

.... 1' l.t does appear as if

representation increases the likelihood that appellants, will feel

they had a fair chance at the hearing. Appellants, value the repre­

sentatives as some one who can protect them and help them in a diffi­

cult situation. Some one who can get them through the experience of
3
appearing before a tribunal."

1. [Link]., 1988, p.546.

2. Administrative Jurisdiction, 1966, p./9.
3. •Lom Mullan, Representation at Tribunals, 53,M.L.R. 1990,
230 at 237.
 681

The European convention of Human Rights under its Article 6(3)

gives right to a citizen to defend himself through legal assistance

of his own choosing where he is charged with a criminal offence. How­

ever, the European court of Human Rights has interpreted this provi­

sion to ensure that its application does not exceed the bounds of

common sense. That is why the expression 'criminal offence' has been
Q x. ■ a. • . . court
given a restrictive meaning in article 6 of the convention, and^/has

observed that it therefore, cannot be said that natural justice

requires that person appearing before a tribunal should be legally

represented is an absolute rule, it has got a relative value.

'At common law, from thevery beginning, it has not been an abso­

lute rule that the person appearing before a tribunal should be given

an opportunity to be represented through lawyers.' It is, of course,

a part of the rules of natural justice but "it is not clear whether

representation, in particular, provided by professional lawyers is

indeed a necessary or desirable part of the procedure of domestic

tribunals and of those statutory bodies that have departed from the

model of a court of law. The Queen's Bench observed in Maynard v

3 that it is clear,
Osmond12 therefore, that one who is entitled to

appear in person before statutory tribunal is also entitled, in the

2
absence of express or implied provision to the contrary , to be repr­

esented by a lawyer or by any other appropriate spokesman of his

3
choice except in informal proceedings before a domestic tribunal.

1. (1977) Q.B. 240.

2. Ibid
3. Enderby Town Football Club Limited v Football Association Ltd.
(1971) C.H. 591.
 682

de Smith says 11 It would be contrary to natural justice

to allow one side to be legally represented but to refuse the same.

right to other. One must recall that natural justice demands only

minimum standard of fair adjudication and not ideal standard. The

reasons for excluding legal representatives are various: they tend

to introduce too much formalities, Ithey disturb witnesses, their

presence increases the likelihood of subsequent proceedings in the

courts. In general, legal representation on the right quality

before statutory tribunal is desirable, and that person threatened

with social or financial ruin by disciplinary proceeding in a purely

domestic forum gravely prejudiced if he is denied legal representati­

on.

In the beginning at the common law, the courts took a very

restrictive view of the question of the legal representation. Thus,

in Collier v Sir William Hicks^ the court refused the attorney or

advocate as it was not the practice of the court to allow the attor­

ney. Chief Justice Tenterden observed, "I think,it may be for the

benefit of the parties that such right should not be admitted,

The consequences would be, that the parties would in most cases be

put to a heavy, a grievious expenses. My own opinion is that, in

general the ends of justice will be sufficiently attained........... by

hearing only the parties themselves.... without that ^icety of dis­

cussions and subtlety of argument which are likely to be introdu^

2
by persons more accustomed to legal questions • Earlier the court

1. 2 B. and A.D. 663 (109 E.R. 1290).

2. Ibid at 670.
 683

had disallowed the legal assistance in Cox v Coleridge1. The other

cases that have rejected the right to legal assistance are; R. v The
Justices of Stafford Shire2, R. v Borron.3

The earlier statutes in England also did not permit the attor­

ney in proceedings. The first statute is, 1, Ric 3,45 C.3. The second
5
is 3 H. , C.3. The other statutes are 1 and 2 hend M.C.13, 2 and
3 P.H. and M.C.10.67
8

In all these statues the legislature seems to have contemplated

one agent only in the preliminary examination, viz., the Magistrates

and does not appear to have considered it as at all analogus to a

trial in which both sides were to be heard.

In those days it was not contemplated that the lawyers should

represent the case. However, with the increase of number of cases,

and the complexities of the matters concerned, made it impossible

for the ignorant party to defend himself without having any right to

legal advice or assistance. Thus, Chief Justice Glynn made it clear

7
in Barclee's case that in certain cases a party has right to attend

by counsel. The Attorney was at all events necessary to cross examine

witnesses. The ri^ht to legal assistance was also recognised in

Q
Dominus Rex v Paine; The right to legal assistance, however, was not

1. IB. and C. 37, (107 E.R. 15)

2. (1 Chitly 218).
3. 3B and A.L.D. 433 (106 E.R. 721).
4. Richard the First, 1189—1199 April 6,Sept.1191, 2 Sept.1192.
5. Henry the Third, 1216—1272, 28 Oct.1218 to 27 Oct. 1222.
6. Philip and Mary, 25 Jul. 1554 to 25 Jul. 1555.
7. 2 Sid. 101 (82 E.R. 1279)
8. 1 Salked 281 (91 E.R. 246).
 684

a frequent practice. Chief Justice Earle observed in Remacqueen and

, "As far as interests of justice are concern­
the Nattingham Society12

ed, I can foresee that there might be great failure of justice if

counsels were allowed to interfere in all cases. Earlier in Tillam

2
v Copp. , Maule J. has declined the help of counsel. But in the same

case Williams J. was of the view that, "An arbitrator who in anxious

to do his d ty impartially wouldbe wrong in refusing a party the

5 The right to legal assistance was

privilege of appearing by counsel.34

confirmed in R. v Assessment Committee of St. Mery Abbotts Kensington!

The most important statement with regard to the right to legal

5
assistance is that of Stirling J. in Jackson and Co. v Napper. His

lordship observed, "1 take it that, subject to certain well known

exceptions, every person, who is sui juris, has a right to appoint

an agent for any purpose whatever. And that he can do so when he is

exercising a statutory right, no less than he is exercising any other

right.... And I understand the law to be that, inorder to make out

that a right conferred by a statute is to be exercised personally,

and none by agent, you must find something in the Act, either by

way of express enactment or necessary implication, which limits the

common law right of any person who is sui juris to appoint an agent

on his behalf, of course, the legislature may do so, but, prima facie,

when there is nothing said about it, a person has same right of

appointing agent for the purpose of exercising a statutory right as

1. 9 C.B. (N.S. 793) (142 E.R.) at pp. 795-96.

2. 5 C.B. 211.
3. 142 E.R. 314.
4. 1 Q.B. 378.
5. 35 C.H.D. 162.
 685

far as any other purpose".1 in R. v Justice of Kent23

5 Uuain J. obser­
4

ved, rie ought not to restrict the common law rule, qui facit per

alium facit persay, unless the statute makes a personal signature

3
indispensable".

At common law, therefore, the right to legal assistance in

adjudicating process was restricted but, after the Franks Committee

reports on Tribuiials and Enquries, the majority of modern statutes

and statutory regulations which make provision for a form of hearing

expressly permit representation before tribunal or enquiry in quest­

ion usually unrestricted, of course, with some limitations, in resp­

ect of type of person. The courts have also taken the view that if

the right to legal representation is an aspect of natural justice,

then any regulation which restricts the right to legal assistance

can be challenged on the ground that it offends the rules of natural

4 5
justice. Pearlbery v Varty , and Wiseman v Borneman are the cases

which have held so.

The right to legal representation in the field of domestic^

bodies is more important and the courts have held that the right to

legal assistance as the requirement of natural justice cannot be

excluded by contrary provisions in a contract. The important cases

on the point are: Edwards v S.O.G.A.T.6, Paramus v Film Artist

7 8
Association , Enderby Town Football Club v Football Association ,

1. Ibid at 173. 6« (1971) C.H.354 at 376.

2. 8 Q.B. 305. 7. (1974) A.C.92 '5 at 941.
3. Ibid at 307. 8» (1971) C.H. 591 at 606-7.
4. (1971) 2 All E.R. 552.
5. (1971) A.C. 297.
 686

In fact, Lord Denning insisted in Pet v Greyhound Racing Association

Ltd. , ihe charge concerns the reputation and livelihood, and on

such an enquiry he is entitled not only to appear by himself but also

to appoint an agent to act for him.... Even a prisoner can have his
2
friend". This case, is of particular interest to members of the

academic profession. If the students demand an opportunity to be

represented by counsel in serious disciplinary cases, which would,

no doubt, affect their reputation, livelihood and future prospects,

what should be the procedure there? Prof. Wade, commenting on this

case says "It is probable that fifty years ago the court would have

held that they were not required to do so but is likely that today
they would reach an opposite conclusion".3

C.P. Seepersad is of the view that legal representation before

administrative tribunal is not aprerequisite of the audi alteram

partem rule. Where, however, the tribunal consists of legally quali­

fied personnel or one party to the issue is legally represented, then

it is sensible to grant the other party the same privilege. In cases

where a large fine may be imposed or a man may be deprived of his

livelihood or property or his office, justice demands that he be

allowed legal representation. Any rule contractual or otherwise

denying legal representation in these cases would probably be void.

In the country's economic misery it is hardly likely that legal aid

would be made available before all tribunals. Therefore, a new

1. (1969) 1 Q.B. 125.

2. Ibid
3. Natural Justice and Disciplinary Inquiries, 84, L.q.r.451.
 687

approach is a sine qua [Link] universities and polytechnics (with

the cooperation of the governmental agencies) should be designing

courses to prepare students, preferably graduates for undertaking

.^
advocacy and allied work before administrative tribunals'12

Seervai is of the view that on the question of principle it is

submitted that unless there are considerations of public policy over

ridding the claim of natural justice in any particular class of

matters, the assistance of counsel or agent is necessary if a person

2
is to have a fair opportunity to meet the case against him.

It must be made clear, that the legal representation is an

essential element of audi alteram partem rule in domestic tribunals

proceedings. J.E. Alder concludes that (1) in the context of statut­

ory and domestic tribunals a prima facie right to representation

exists upon the basis of agency. Such a right includes the freedom

to select a lawyer; (2) in the case of a domestic tribunal the right

can be excluded by contract; (3) the discretion of the tribunal cannot

exclude the right to representation except where the representative

selected is 'manifestly improper'; (4) in the context of a statutory

body, express words or necessary implication are required to justify

limiting or curtailing the right to representation; (5) where the

agency is excluded by contract, or where delegated legislation alth­

ough authorised in general terms purports to curtail representation

completely, the courts will be entitled to interfere upon the basis

of natural justice.

1. Fairness and Audi alteram partem, Public Law, 1975;

242 at 253.
2. [Link]., p.1451.
 688

Really speaking, the right to legal representation is a must

in the present day set up of the government. This does not mean that

the administrative adjudicating process should introduce lawyers in

each and every case. Many tribunals, specially the tax tribunals are

technical in nature. The person, whose right is affected by the deci­

sions of these tribunals, may be shy, unintelligent, nervous, inarti­

culate, and may be unable to grapple with thefacts and technicalities

and in that case the right to have a legal assistance must be granted.

They are not in a position to prepare a case, they lack the necessary

intelligence and they cannot do justice with them. Thus, in R. v

Home Secretary exparte Tariant^ Webster J. was of the view that it

would be unreasonable for any board to refuse legal representation

in view of thegravity and complexity of the charge. C.B. Levis is,

however, of the view that, "Legal representation is not a distinct

2
right". The English courts have adopted a balanced view of the

right to legal representation. After the recommendation of the Franks

Committee that the right to legal representation should be curtailed

only in the most exceptional circumstances, the courts have allowed

the right to legal representation in many cases. However, the House

of Lords declared in R. v Board of Visitors of [Link], the Maze,

ex-parte Hone that the right to representation is less persuassive

than the right of access to the court. Lord Goff observed that, to

recognise a right to legal representation "would result in wholly

unnecessary delay in many cases, to the detriment of all concerned

1. (1984) 1 All E.R. 799.

2. (1984) Public Law, p. 401.
3. (1988) 2 W.L.R. 117.
 689

including the prisoner charged, and to wholly unnecessary waste of

time and money, contrary to the public interest".12

3 His lordships,

however, accepted that though the rules of natural justice may requ­

ire legal representation before a board of visitors, "I can see no

basis that they should do so in every case as of right, every thing

must depend on the circumstances of the particular case". Thus, we

see that in United Kingdom it has been accepted that the rules of

natural justice require the right to legal assistance, yet it is not

given in every case. It depends upon the discretion of the tribunals.

Prof. Harry Whitemore is of the view that the situation in the

United Kingdom is far from being satisfactory. "The fact is that the

Franks Committee idea of an informal atmosphere in which an ordinary

man may have a fair hearing is just not working It seems that

legal representation, or indeed any representation, is exception

3
rather than the rule".

1. Ibid at 186.
2. Ibid at 186.
3. The Role of Lawyer in Administrative Justice, 33,
The Modern Law Review, 1970, 481 at 484.
 690

Position in U.S.A.

In the United States of America legal representation before

federal agencies is almost a rule rather than exception. It is virtu­

ally guaranteed there. Section 6(A) of the Administrative procedure

Act, 1946 talks of the legal representation. It says, "A person

compelled to appear in person before an agency or representative

thereof is entitled to be accompanied, represented and advised by

counsel... A party is entitled to appear in person or by or with

counsel or other duly qualified representative in an agency proceed­

ings". The due process cause of the American Constitution also guar­
antees the same. The U.S. Supreme Court held in Powel v Alabama4

that the right to be heard would be in many cases of little avail

if it did not comprehend the right to be heard by [Link] the

intelligent and educated layman has small and sometimes no skill in

thescience of law. He lacks both the skill and knowledge adequate to

prepare his defence, even though he has a perfect one. He requires

the guiding hand of a counsel at every step of the the proceedings

be
against him. Without it, though he may not^/guilty, he faces the dan­

ger of conviction because he does not know how to establish his

innocence. If that be. true of men of intelligence, how much more is

2
it of the ignorant and illiterate, of those of feeble intellect".

The other important cases that have held so are; Goldberg v

Kelly3, Reynolds v Cochran4, Johnson v ^erbest5, Gideon v Wainwright^

1. 287 U.S. (1932)

2. Ibid
3. 397 U.S. 254 (1970)
4. (1961) 365 U.S. 525.
5. (1938) 304 U.S. 458.
6. (1963) 372 U.S. 335.
 691

Douglas v California1, Cash v Culver2, Mcneal v Culver34

, Hamilton v
5
.. , 4
Alabama .

In the United States of America, thus, the legal representation

before tribunal is generally assured. However, as Prof. Harry White-

more has pointed out "This is not the position in many of the states

and this, in my view accounts for the administrative unfairness, and

even lawlessness, which is so much complained about by various civil

rights groups. In some states, despite Administrative Procedure Act,

prehearing procedures on such matters as licencing are virtually non­

existence. True it is that remedies exist in thefederal courts but

5
most of the sufferers cannot afford legal representations11.

However, the observation of Prof. Whitemore does not seem to

be correct at present because United States Supreme Court has inter­

preted the due process clause of the U.S. Constitution as guarantor

of the right to fair hearing accompanied by right to the legal

assistance. Many American Agencies have in fact their own specialised

bar of practitioners. The investigatory proceedings also permit

assistance of a counsel to any person compelled to appear before

the commission.

1. (1963) 37 U.S. 353.

2. (1959) 358 U.S. 633.
3. (1961) 365 U.S. 109.
4. (1961) 368 U.S. 52.
5. 33 M.L.R. 481 at 484.
 692

Position in Australia;

In Australia the right to the legal assistance is compulsory

except where there is a statutory exclusion. Prof. Whitemore states,

In Australia, I think, it isfair to say that there is a growing

tendency for lawyers to represent persons involved in administrative

decision making especially before tribunals, tegal aid schemes do

not generally go that far though, there are specialarrangements to

cover industrial accident tribunals but individuals, and especially

the trade unions, have become convinced of the need for representat­

ion before disciplinary and promotion tribunals, conciliation and

arbitration tribunals and tax tribunals. In thecase of tax tribunals

accountants have, in the past, to some degree pre-empted the field.

happily there now seems to be a trend towards legal representation

in the majority of cases. This may be due to the increasing complex­

ity of tax legislation. It may also be due to the inclusion of tax

law in graduate and undergraduate courses in the law schools. But

there are still some large gaps which can be filled only by extended

legal aid or creation of some special arrangements. It is my view

that this must be done if we are to have fairness in administrative

decision making".

At the beginning when the rapid growth of administrative

tribunal began to take place the lawyers in Australia looked upon

this growth with apprehension that the tribunals would not be the

1. [Link]., p.484
 693

proper guardians of rights and liberties of the individuals as the

courts have been. However, in the course of time, it was realised

that in the context of rapidly expanding governmental functions, the

tribunals are the new means of protection against the executive

government. Ernst Willhim remarks, "Partly no doubt because of its

initial suspician of administrative tribunals, the legal profession

in Australia has not flayed a major role in their proceedings, anoth­

er and perhaps more important reason is that many tribunals operate

in specialist fields about which lawyers have little knowledge and

which they have not taken trouble to study".12

However, "lawyers cannot remain indifferent to the important

developments in economic and social affairs that lie behind this

trend. Rather they should seek to give guidance and leadership in

the creation of new legal concepts, institutions and techniques.

In Australia the legal representation is given as a matter of

rule. “Exclusion of legal representation before commonwealth Admini­

strative Tribunal is widespread, and with perhaps one or two except-

ions, is based on substantial grounds." The Supreme Court of South

[Link] has held in Kurger v Pharmacy Board of Southern Australia3

that the applicant was entitled both to legal representation and

cross examination of witnesses. The case was otherwise with bodies

such as Football Association or Jockey Club or Prisoners rights and

freedom have been surrendered, in the first case voluntary and second

involuntary.

1
* Legal Representation before Administrative Tribunals,
. 43, The Australian Law Journal,64.
2. 43, A.L.J. 64 at 69.
3. (1979) 22, S.A.S.R. 39.
 694

When we talk of the legal assistance in the administrative

adjudicating process, we do not mean that there should be represent­

ation by lawyers in the sense in which the participation takes place

in the courts of law. We have already stated that technical rule of

evidence does not play an important role in the adjudicative process.

The legal representation must be given to the persons who are ignor­

ant of adjudicating process. The professional preparation reduces

the time spent in hearing cases. Some forms of assistance and indeed

a spokesman are clearly required in such cases. However, the quality

of the representation is of the utmost importance. Prof. Harry Wite­

mo re suggests that the legal representation must be of a qualitiative

nature and not of a perrymason in real life-the criminal lawyer par

excellence.12 The learned professor suggests that 11 In its own interest

and in the interest of the public, the legal profession ought to

recognise an obligation to improve the competence of the member who

appear before the tribunal and administrator.

He gives the following suggestions for the role of lawyers in

the administrative justice;

1) The trained lawyers should also be well trained to be excell­

ent administrators;

2) An administrative court should be enacted to prescribe fair

procedures not only before tribunals but also -for general administr­

ation;

1. 33 M.L.R.481 at 486-88.
2. 43 M.L.R. at pp. 486-489.
 695

3) There should be a body such as the council on tribunals to

exercise continuous oversight of the tribunals,

4) begal advice and representation must be made freely available

in all types of administrative adjudication - by legal aid schemes

or by other arrangements,

5) The law schools and other organisations concerned with the

training of the lawyers must place place much more emphasis on admi­

nistrative law and practice,

6) The judicial review must be made more of a reality than it is

at present.12
3

K.D. Zacharias concludes that there is a general tendency with

the administrators to disallow legal representation and some times

the courts approve such a stand. "This is partly because of a mist­

aken kindness towards the affected party and partly because a wrong

types representation by the lawyer. The kindness in meant to save

the party from delay and cost. Mistaken because is doing so he may

lose his right to a fair hearing, thereby his job, property or repu­

tation or all. In fact a thorough and professional preparation by

2
specialist advocates may reduce the time and cost.

Prof. [Link] is of the view that the position has thus reach­

ed, "that where a person trained in analysing issues of facts and

law represents the administration before adjudicatory authority, it ds

stLH a denial of the natural justice if the request of the affected

.3
party to have such an assistance is denied to him .

1. Ibid at 492-93. .
2. Right to Legal Representation before inbunals,
2, The Academy Las Review, 304 at 322.
3. [Link]., p.264.
 696

Position in India:

In India, ordinarily courts are of the view that the involve­

ment of the legal practitioners should be discouraged in order to

avoid delay and complexity. However, the courts have not ignored the

representation by lawyers in exceptional cases where denial of that

right may bring a failure of inquiry itself and a denial of proper

and effective [Link] is true that the legal representation is

not an essential element of natural justice in all cases, however,

claim for legal representation should normally be left to the dis­

cretion of the tribunals to allow it in exceptional cases. The courts

will not actively encourage participation by lawyers in domestic

inquiries such view of the court should not be used for unfairness

and therefore, whenever necessary, it is for the court to grant or

not to grant the right to legal representation. The courts have held
so in Kalindi v Tata Locomotive and Engineering [Link].} Brooke Bond

2 . 3
India Ltd. v Subbaraman , Dunlop Rubber [Link]. v Their Workmen ,
4
Krishna Chand v Union of India , Nripendra Nath Bagchi v Secretary
c
to West Bengal. The Supreme Court observed in the Board of Trustees
of the Port of Bombay v bilip Kumar6, "In our view we have reached

a stage in our onward march to fair play in action that where in an

inquiry before a domestic tribunal delinquent officer is pitted

1. A.I.R. 1960, S.C. 914.

2. (1961) 2 L.A.V.L.J. 417.
3. A.I.R. 1965, S.C. 1392.
4. A.I.R. 1974, S.C. 1^89.
5. A.I.R. 1961, Cal. 1.
6. A.I.R. 1983, S.C. 109.
 691

against a legally trained mind, if he seems permission to appear

through a legal practitioner the refusal to grant this request would

amount to denial of a reasonable request to defend himself and the

essential principles of natural justice would be violated".In

C.L. Subramaniam v Collector of Customs17 it was held that if the

23
6
5
4

case against a government servant was being handled by a trained

prosecutor, it was good ground for allowing him to engage a legal

practitioner lest the scales should be weighted against him.

Our courts have not taken an uniform view about the legal

representation. It has refused the right to legal assistance in S.C.

3
Sareen v Union of India in Standard Pottery Works v Standard Pottery
4 5
Works Employees Union , Braj Kishore v State of Orissa , Ameetteep
Machine Tools v Labour Court Haryana^.

On the other hand, the Bombay High Court has held in Antonio B.
7
Futado v Chairman and Managing Director, Bank of India that if the

petitioner is not allowed a legal representation, Article 21 of the

Constitution is also violated as the word 'life' has been given a

wider interpretation by the court, as including the right to liveli­

hood and if the outcome of the departmental inquiry is likely to

adversely affect the repurtation or livelihood of a person, some of

the final graces of human civilisation which make the life worth livi­

ng would be jeopardised. Justice must not only be done but must seem

1. Ibid at 113.
2. A.I.R. 1972, S.C. 2178.
3. A.I.R. 1976, S.C. 1686.
4. (1981) L.A.B.I.C.1132.
5. A.I.R. 1965, Orissa,183.
6. A.I.R. 1980, S.C. 2135.
7. (1986) L.A.B.I.C. Bombay High Court 613.
 698

to be done is not an euhemerism for courts alone• It applied with

equal vigour and rigour to all those who must be responsible for

fair play in action, and a quasi-judicial tribunal cannot view the

matter with equanimity or inequality of representation. Thus, the

courts are holding now that permission of legal representation is

minimum requirement of the rules of natural justice. The important

cases on this point are; [Link] v the D.I.G.^, Mohan Chand v

2
Union of India , [Link] v Indian Airlines Corporation -Regional
3
Director, Madras , Derby Textiles Ltd. v ahamantri Derby Textiles
Karmachari and Hhramik Union^, Suresh Lhandra Srivastava v Kendriya
5
Vidyalaya Langhatha .

In Bhagat Ram v State of Himachal Pradesh^ our Supreme Court

has laid down that denial of the legal assistance is the denial of

principle of natural justice.

It can be concluded, therefore, that legally speaking an empl­

oyee is not entitled to legal representation as a matter of right.

The employer or the enquiry officer may allow the legal assistance

in his discretion at appropriate cases. This word ’’may11 in appropri­

ate cases means ’.must

* The discretion vested in disciplinary author­

ity cannot be exercised arbitrary where there is a service rule which

enables the person concerned to avail of the assistance of a legal

practitioner, such opportunity must be provided to that employee.

The refusal to be represented by a legal practitioner in that case1

6
*5
3
2

1. (1986) L.A.B.I.C. Kerala High Court 980.

2. (1986) L.A.B.l.C. M.P. High Court 1245.
3. 1989 (59 F.L.R. Summary of cases, p.19, Madras)
4 1989 (59 F.L.R. Nummary of cases, 58 Rajasthan High ^ourt)
5. 1990 (60 F.L.R. 114, Allahabad).
6. 1983 (47 F.L.R. 95, S.C.)
 699

will be violative of the rule and that may result in serious prejud­

ice to the employee. When the management is represented by a legally

trained mind the denial of such an opportunity to the delenqent crea­

tes an imbalance, because he is pitted against a legal force and

that would amount to denial of reasonable opportunity to defend

himself. The delenquent may be a legally trained person, or his co­

employees may be legally trained, [Link] when the circumstances

demand that right to legal assistance is to be given, it must be

given irrespective of the existence of above facts. It is very perti­

nent to quote the opinion of Mr. Laxmi Swaminathan who says that,

•legal representation, if he so desires, to the civil servant against

whom disciplinary action is taken, should not be denied to him by the

courts saying that he can by his age, experience, number of witnesses,

nature of evidence and charges, effectively conduct his own defence,

the court should in the interpretation of Article 311(2), lean more

in favour of legal representation in such cases, than give it a rest­

rictive meaning, because to err on this wider meaning would be less

harmful in the circumstances. Besides, one must also not forget that

a lawyer would be an important actor in the stage of a ’life and

death' drama which a civil servant tries to enact against a powerful

callosus, viz., the government machinery who has all the brains,powers

and finances at its disposal. It is necessary to give the civil

servant a right to be represented by the Counsel, and the law should

1
be suitably amended and made clear on this point .

a Civil Servant Right to be Represented in disciplinary

Proceeding, 16# J.I.L.I. (1974) p.282.
 700

Th?_En]perical Aspect of -the Representation:

We have tried to conduct an emperical study of the problem of

right to representation in departmental inquiries. In that process

we have gained the practical aspect and experiece of the inquiry

proceedings, vis-a-vis the legal representation. While cent per cent

of the inquiry officers belonging to banking serviceshave rejected

outright the suggestion of the legal representation in the departme­

ntal proceedings, nearly 70 per cent of the delinquents in those

undertakings have preferred'to the right to legal assistance in dep­

artmental proceedings. The inquiry officers are of the view that an

experienced person of the same department is better than the legally

/

trained person. The delinquents, on the other hand, are of the view

that because of the policy of the management of divide and rule and

of predetermination of mind, it becomes very difficult in practice to

get justice, if the legally trained person is not employed by the

delinquent to present his case. We have also interviewed some lead­

ing lawyers who have been the defence representatives in department­

al proceedings. They all are of the view that legalisation of the

proceeding is not desired but they have experienced that the manage­

ment or the institutions engage the legally trained persons to cond­

uct their cases and the employee is going to suffer, if he is not

allowed to be represented by such person. They are of the view that

generally speaking in the departmental proceeding the balance of

convenience is tilted in the favour of management and it is the

 70 1

presence of the lawyers that prevents the tilting of balance and

ensures the evenly balanced counduct of inquiry.

We have also collected the views of some University teachers.

•The cent per cent views of those interviewed are that the engage­

ment of lawyers in departmental proceeding causes delay, complicatio­

ns and does not solve the problem. The lawyers are in the habits of

prolonging the proceedings, the result is that the departmental pro­

ceeding does not give its verdict in time. They have suggested that

the lawyers should not be engaged, the proceeding should be simple

and a reasonable .bpportunity must be afforded to the delinquent and

only in ordinary cases where legal question is to be decided, the

lawyers should be allowed to be present in the proceeding.

 70 2

THE POST DECISIONAL HEARING

Post decisional hearing has added a new dimension to the

principle of audi lateram partem. The basic foundation of this is

that the audi alteram partem rule is sufficiently flexible to permit

modifications and variations to suit the exigencies of myriad kinds

of situations which mayarise. The person affected must have a reas­

onable opportunity of being heard. What opportunity may be regarded

as reasonable would necessarily depend on the practical necessities

of the situation. ’It may be a sophisticated full-fledged hearing or

it may be a hearing which is very brief and minimal it may be hear­

ing prior to thedecision or it may be even post-decisional remedial

2
hearing 12
3
.

de Smith writes that "When provision is made by statute or by

the rules of a voluntary association for a full re-hearing of the

case by the original body or some other body vested with an exercisi­

ng original jurisdiction a court may readily conclude that a full

2
and fair re-hearing will cure any defect in the original decision'1.

□
In Calvin v Carr , the court observed, "There are, however, a

number of typical situations as to which some general principle can

be stated. First there are cases where the rules provide for re-hear­

ing by the original body, or some fuller or enlarged form of it.

This situation may be found in relation to social clubs. It is not

difficult in such cases to reach the conclusion that the first

1. MAneka Gandhi v Union of India (1978) 1 S.C.C. 291.

2. de Smith, [Link]., 243.
3. (1979) 2 W.L.R. 755.
 703

hearing is superseded by thesecond, or putting it in contractual terms,

the parties are taken to have to agreed to accept thedecision of the

hearing body, whether original or adjourned".12

4
3

Ihe essence of the pbst-decisional hearing is that there must

2
be an adequte substitute for proper rehearing. In De'vertueil v Knaggs

Lord Parmoor observed, "It must, however, be born in mind that there

may be special circumstances which would justify a governor, acting

*

in good faith to take action, even if he did not give an opportunity

to the person affected to correct or controvert any relevant statement

brought forward to this prejudice. For instance, a decision may have

to be given in an emergency, when promptitude is of great importance,

or there might be obstructive conduct on the part of the person affect­

ed. . . . But there is no reason why the acting governor may not at any

time review or alter a decision previously given, and it may be his

duty to do so, in the prudent exercise of his discretion on a further

3
consideration of all the relevant factors after full enquriey".

Lord Reid said, "I do not doubt that if an officer or body real­

ises that it had acted hastily and reconsiders the whole matter afresh,

after affording to the person affected a proper opportunity to present

4
his case, then its later decision will be valid".

Gaie J. observed in Posluns v Toronto Stock Exchange and

Gardiner^, "After giving the matter much thought I doubt that Lord

Reid intended his verb "annul" to be literally and strictly interpret­

ed. It seems to be, rather, that if the members of a tribunal engaged

1. Ibid at 765. 5. (1964) 46 D.L.R. (2nd 210) at 331.

2. (1918) A.C. 557.
3. Ibid at 563.
4. (1954) A.C. 40 at 79.
 704

upon a rehearing resolve conscientiously and honestly to reconsider

the matter without being influenced by the effect or terms of their

earlier decision, there has been a sufficient disavowal of that

decision to permit them to do justice, if Lord Reid’s other precepts

*
are also honoured In my opinion, no higher standard of approach
ought to be exacted from such bodies in these circumstances”.^

2
Mclennan, J. in appeal confirmed the judgement of Gale J.

Megarry J. posed a question in Leary v National Union of Vehicle

3
Builders. Can a deficiency of natural justice before a trial tribunal

be cured by a sufficiency of natural justice before an appellate

4
tribunal? and answered, ”If there is a defect of natural justice,

the proper course is for the body to which the jurisdiction is conf­

ided to rehear the matter de novo, rather than treat any further

hearing as an appeal or a fortiori.... ^'he sheet should be made as

clean as possible but I think it should be the same sheet and not a

different one. What is required is a ’venire denovo

* and not the

process of appeal. As a general rule, at all events, I hold that a

failure of natural justice,in the trial body cannot be cured by a

sufficiency of natural justice in a appellate body”.

In India, the trend was set in M/s Erusian Equipment and Chemi-
cals Ltd. v State of West Bengal6 by then Chief Justice A.N. Ray for

post decisional hearing. The company was black listed and its tenders

were not accepted, the order of the Board was given without hearing

1. Ibid at 331.
2. 53 D.L.R. (2nd 193) at 214.
3. (1971) 1 Ch. 34.
4. Ibid at 47.
5. Ibid at 48-49.
6. A.I.R. 1975, S.C. 266.
 705

the company. The learned Chief Justice said, “The authorities will

give an opportunity to the petitioners to represent their case and

the authority will hear the petitioners as to whether names should

be put on the black list, or not”•However, this order of post deci­

sional hearing was not given much importance because the court regar­

ded that order of black listing as a barrier between the persons

black listed and the government in the matter oE transactions# ‘In

other words the order was declared to be void. ‘The importance of

this decision is that the court insisted upon the hearing even after

the decision has been made without giving any other relief to the

petitioners as in the cases of other void orders.1

The most important and the pioneer case in the administrative

2
process is Maneka Gandhi v Union of India'. This case has expanded

the horizon of natural justice. The court ruled in that case that

the concept of natural justice is flexible one and if in a situation,

predicisional hearing is not feasible, then post-decisional hearing

may be given rather than denying hearing alltogether1• Dr. [Link]

says, "Thus, for the first time, the Supreme Court has laid down the

procedure of post-decisional hearing in a bid to reconcile the concept

of natural justice with the exigencies of the administration. By intro­

ducing post-decisional hearing in India the court has expanded the hor­

izons of natural justice as it will not be necessary to deny hearing in

situation where pre—decisional hearing may be unsuitable because

*
1 Ibid at 268-69.
2. A.I.R. 1978, S.C. 597.
 70 6

urgent action may be called for".1 Justice Bhagwati declared in that

case; "The audi alteram partem rule is not cast in a rigid mound and

judicial decisions establish that it may suffer situational modifica­

tions..... what opportunity may be regarded as reasonable would nece­

ssarily depend on the practical necessities of the situation. It may

be a sophisticated full fledged hearing or it may be a hearing which

is very brief and minimal; it may be a hearing prior to the decision

or it may even be a post-decision remedial hearing. ...11.

The court followed the post-decisional theory in Mohinder Singh

Gill v Chief Election Commissioner^, S.L
* Kapoor v Jagmohan^, Swadeshi

Cotton Mills v Union of India , C.I.T. v [Link] , Liberty

7 8
Oil Mills v Union of India , Union of India v Tulsi Ram Patel , Satya-
9 10
veer Singh v Union of India , Ram Chandra v Union of India , Walford
11 12
Transport v S.K. Mondal , Rama Varma v State of Kerala , Sunil Batra
13
v Delhi Administration .

'The post-decisional hearing, no doubt, was given a very impor­

tant status by Bhagwati J. in Indian Administrative Law. However,

the learned Judge was very much influenced by the observation of Lord
14
Parmoor in D'vertauial v Knaggs . He has even used the same words

used by Lord Parmoor in that case.

1. The Evolving Indian Administrative Law, 1983,pp.75-76.

2. A.I.R. 1978, S.C. 597 at 630.
3. A.I.R. 1978, S.C. 851.
4. A.I.R. 1981, S.C. 136. U. (1980) 50,Company cases 600.
5. A.I.R. 1981, S.C. 818. 12. A.I.R. 1979, S.C. 1918.
6. A.I.R. 1979, S.C.1725, 13. A.I.R. 1978, S.C. 1675 at 1723.
7. A.I.R. 1984, S.C.1271. 14. (1918) A.C. 557.
8. A.I.R. 1985, S.C.1462-63.
9. A.I.R. 1986, S.C. 556 at 569.
10. A.I.R. 1986, S.C.1171 at 1181.
 70. 7

The concept of post decisional hearing is not something new

to the Indian jurisprudence. The Industries (Development and Regulat-

ion)Act,19511, the Income Tax Act,196123
, provide for the post decisi­
4

onal hearing. However, for the first time this concept was transplant­

ed into the soil of administrative law by Bhagwati J. in Maneka Gandhi

3
case . If there is novelty that novelty is in this respect only.

The doctrine of post decisional hearing, no doubt, is an import­

ant facet of the rule of audi alteram partem. However, this should

not be regarded as a substitute for pre-decisional hearing. Prof, de

Smith says, "Primarily the courts must focus their attention on quest­

ions such as the adequacy of hearing on appeal and the powers of the
4
appellete tribunal". The learned Professor says that pre-decisional

hearing is the best course.

We are of the view that it is not enough to say that the rule

of post-decisional hearing should not be a substitute of pre-decision­

al hearing. The natural course of the rule of hearing is that post-

decisional hearing should not be a rule at all. It is against the

concept of natural justice. This rule may become easily a prey of

pride and prejudice, bias and predisposition. Everybody knows that

bureaucrates and heads of the departments are not amenable to the

spirit of the public opinion and democratic norms. They are rule bound

decision bound and very fond of precedent consciousness. They neither

have judicial mind, nor they accept the rule of the game, hence, once

decided, that will be a final decision for them.

1. Section 18 a.
2. Section 132(b).
3. A.I.R. 1978, S.C. 597.
4. (1962) 25 M.L.R. 455 at 457.
 70 8

Ihe Allahabad High Court has very nicely put that "There is a

world of difference between a hearing given before the determination

is made by an authority and a hearing given after such determination

*
has been made Rules of natural justice require a hearing before a
determination is made".12
3

Prof. M.P. Jain says, "It is doubtful whether a hearing given

by the government while its order remains in tact could be any thing

more than an empty formality because it is a natural human instinct

to support the order made and the decision already reached".The post

decisional hearing must be given with an open mind and the decision

without hearing should not be a final but a tentative one so that

there may be a chance to alter that, if the authority is really sati­

sfied, after hearing the case, that a change .should be made.

Dr. S.N. Jain has given the following defects of the post deci­

sional hearing;

1) The action may be based on incomplete or irrelevant materials;

2) There is increased likelihood of bias, by administration in

favour of existing decision;

3) It may slow down hearing process;

4) It may not require same care and attention which administrative

body may take in predecisional hearing;

5) It may cause injury or damage to property, person or to reputa-

3
tion remaining irreparable even by post-decisional hearing.

1. [Link]. v State, A.I.R> 1975, Allahabad, 29 at 34.

2. The Evolving Indian Administrative Law, p. 89.
3. Administrative Law Aspects of Maneka Gandhi’s case,
JILI, 1979, 382.
 7 09

Taking into account all these points Prof. Wade concludes that/

It cannot be fair procedure to take a decision first and hear the

evidence afterwards, even though the first decision is legally a

nullity• But usually the only possible course is for the same author­

ity to rehear the case.... Since the initial decision in such cases

will almost inevitably have a prejudicial effect, the law ought to be

slow to admit such dubious procedure”.12

4
3

Our Supreme Court, it seems, has changed its attitude towards

the rules of post decisional hearing and now the court has begun to

assert that this is not a good rule. Thus, Justice Rangnath Mishra,

as he then was, observed in [Link] v Union of India , "There

is no justification to think of a post decisional hearing. On the

other hand the normal Jrule should apply There is no justificat­

ion to throw them out of employment and then give them an opportunity

of representation when therequircment is that they should have the

opportunity referred to above as a condition precedent to accept.

It is common experience that once a decision has been taken, there

is a tendency to uphold it and a representation may not really yield

3
any fruitful purpose".
4
Mr. Justice M.M. Dutta observed in H.L. Trehan v Union of India,

"In our opinion the post decisional opportunity of hearing does not

sub-serve the rules of natural justice. The authority who embarks

upon a post decisional hearing will naturally proceed with a closed

mind and there is hardly any chance of getting a proper consideration

1. [Link]., pp. 553-54.

2. A.I.R. 1988, S.C
* 687.
3. Ibid at 695.
4. 1989, L.A.B.I.C. 1031.
 710

of the representation of such a post decisional hearing.

In Charan Lal ^ahu v union of Indial, the COurt ruled, 11 In

these circumstances, we feel that no Juseful purpose will be served

by a post decisional hearing on the auantum of compensation to be

considered adequate for settlement".2

It is important in this connection to note that post decisional

hearing may not always produce the desired result as happened in

Maneka Gandhi's case. She did not get any thing after rehearing even

though, the rule of post decisional hearing was evolved in that very

case in Indian context; It is, therefore, suggested that the same

authority should not give the post decisional hearing as has refused

the predecisional hearing. The presence of the same officer may create

a reasonable apprehension of bias in the mind of the party affected,

by such decision. The entire machinery should be replaced at the time

of post decisional hearing. That will assuage the feeling of the un­

heard party and ensure that principles of natural justice are not

violated. It should not look like a mere formality but it should

ensure that the end of justice is met. It will be very difficult for

the officers, who have refused the predecisional hearing, to decide

the case conscientiously and honestly. The affected party must

demand the opportunity of hearing as a matter of right, and, if it

is refused, he must approach the court of law to get the department

of officer concerned compelled to give a pre-decisional hearing.

1. A.I.R. 199ft, S.C. 1480.

2. Ibid at 1562.
3. A.I.R. 1978, S.C. 597.
 711

When the post—decisional hearing is given, the hearing authority

may approach the hearing with agreater institutional self interest

justifying its initial decision than it does in proceedings instituted

by a complaint. "Even when self interest of this kind does not affect

the ultimate decision, the apprearance of prejudgement is likely to

remain. This situation may have serious consequences; it may place a

cloud over the perceived fairness of the subsequent proceeding and

may induce some respondents to forego their statutory right to a

1
hearing".

We do not say that, the rule of hearing should be followed in

every case without considering the circumstances. If the public policy

demands the government can take a decision in the public interest.

What is stressed here is that, "Having invoked the exception to achie­

ve its immediate objectives, an administrative agency has an obligat­

ion in fairness to hold an adjudicatory hearing promptly so that the

adverse impact of its summary order on the individual will be confined

2
to the shortest possible plea". The judges in the United States have

made it clear that if there is too delay it must be "regarded as

3 4
unlawful during the delay". In United States v Harper Mr. Justice

Wizanski said, "The due process guarantee of a prior administrative

hearing may be validly limited (by summary action) only for the brief­

est of periods".5 It must be at earliest practical time "While the

length and consequent severity of a deprivation may be another factor

to weight in determining the appropriate form of hearing of same

kind".6
1. Summary Action by Administrative Agencies,40,University of Chicago,
Law Review, (1972-73) 1 at 33 Prof. Freedman.
2. Inid at 52. 5. Ibid at 906-07.
3. Labonte v Berlin, 85,N .H. 89 at 95. 6. Fuentes v Shevin am o
4. 335, [Link].904. 67 at 86 '4°7 U.S.
 712

Professor Freedman suggests the following points in the context

of post decisional hearing;

1) Expedition of the subsequent adjudicatory hearing in every way

consistent with sound administrative resolution of the issues prese­

nted;

2) The summary order should be effective for only limited period

of times, that period must be reasonable;

3) Judicial review to prevent abuses in the exercise of summary

authority must be there.

He concludes that "Fair administrative procedure most often results

when Congress and the administrative agencies share with the courts

the responsibility for creating it. The Administrative Procedure Act

has been successful in achieving greater fairness in the formal proc­

esses of adjudication and rule making because Congress, in drafting

its central provisions, struck a workable balance between prescrib­

ing fundamental principles of fair procedure and permitting administ­

rative agencies freedom to adapt these principles creatively to the

2
disparate patterns of their regulatory responsibilities".

Of the many informal processes that administrative agencies

engage in, summary action is particularly appropriate for thoughtful

study. "As an exception to the general constitutional norm that

government may not act against an individual befoe it has granted

him a hearing; it has the competence to permit effective governmental

action in emergency situations as well as the capacity wrongfully to

1. [Link]., 52-57.
2. Ibid at 64.
 71 3

inflict serious injury. Yet it’s exercise is almost wholly free of

administrative regulations or formalized agency practices. The Supreme

Court has recently begun to reexamine and refine the constitutional

principles governing the area. Summary action, in short, is ripe for

contemporary consideration'12
.1
3

Some times the determination is made by threat of publicity

without giving the person concerned any opportunity of hearing. The

administrative agencies is in the habit of getting its work done by

adopting any course of action. Prof. Francis [Link] is of the view

that the administrative agencies resort to publicity is a coercive

device in areas of social and economic regulation. "More importantly,

however, it is a product of a fact that administrative use of publi­

city in law enforcement has concentrated upon the threat of adverse

publicity, communicated in an unpublisized pretrial proceeding rath$r

than the actual application of the sanction informal hearings. In

such instances, it is even to the advantage of those coerced by the

threat of adverse publicity to conceal the fact that any such

2
coercion has occured".
3
In Maneka ^andhi’s case , the passport of Mrs. Maneka Gandhi

was impounded and wide publicity was given to this fact that she

might flee the country at the time of the crucial Shah Commission

proceedings in which her attendance was compulsory as an witness in

cases of emergency astrocities. Such threats are not the norms of the

government that is the government of rule of law and not of men. This

1. Ibid at 64-65.
2. Law Enforcement Through Publicity, 24, The University of Chicago,
Law Review, 225 at 231.
3. A.I.R. 1978, [Link] 597.
 714

threat of publicity, if it is used as an weapon to prevent the

process of hearing, is a sad commentary on the adjudicating proceed­

ings itself. It is legitimate as a protective measure but not as a

punitive or deterrent sanction. "The doctrine of exhaustion of admi­

nistrative remedies should not cause a court to refuse to rule until

some further administrative determination is made, the damage done

by a press release will not be remedied by agency itself or by post­

adjudication judicial review".1

1. Disparaging Publicity by Federal Agency, 67, Columbia Law

Review, 1512 at 1522.
 715

INSTITUTIONAL DECISION OR DELEGATED HEARING

The Cardinal principle of the rule of audi alteram partem is

that one who decides must hear. This rule was propounded by the Chief

Justice Hughes in the first Morgan case.1 The learned Chief Justice

declared, "The requirement of a full hearing has obvious reference

to the tradition of judicial proceeding in which evidence is recei­

ved and weighed by the trier of the facts.... The hearing is the

hearing of evidence and argument. If the one who determines the facts

which underlie the order has not considered the evidence or arguments

it is manifest that the hearing has not been given. That duty cannot

be performed by one who has not considered evidence or arguments. It

is not an impersonal obligation. It is a duty akin to that of a judge.

The one who decides must hear".^

The rule that one who decides must hear does not mean that in

vast administrative cases the ministers or other heads are bound to

hear personally and then to pronounce the verdict. If this rule is

literaly adhered to, government business will be brought to a stand

still. "The facts of administrative life make it impossible for a

minister personally to persue all the evidence, even asuming that he

can attend the cases at all. Nor can it be ri ht to sub—[Link] him in

every case and demand to know his exact state of mind..... But what

the Supreme Court of United States continued to require was that the

decision should be the personal decision of the minister in the sense

that he sees the record and exercises his personal judgement upon.

1. Morgan v United States, 298 U.S. 468 (1936)

2. Ibid at 480-81.
3. Prof. Wade [Link]., 996-97.
 716

The case may be predigested for him in his department/ but he is the

one who is required to decide. He must therefore/ hear in the sense

of applying his mind to both sides of the case

* 12
4
3
.

In fact/ the Chief Justice Vinson of the Court of Appeals for

the District of Columbia/ made the phrase of Chief Justice Hughes of

[Link] Court clear in the following words: in Southern Garment

Manufacturers Association v Flaming^. "While
the
* one who decides

must hear
*
, *
it must be remembered that 'hear is used in the artistic

sense of requring certain procedural minima to ensure an informed

judgement by the one who has the responsibility of making the final

decision and order. That did not necessitate the secretary becoming
3
a presiding officer at the hearing in the Morgan Litigation
.
**

Prof. Davis opines that/ a literal application of the "one who

decides must hear

* ’ principle enunciated in Morgan First to the admin­

istrative process is clearly impossible for it would mean that,"The

evidence would have to be taken before the officers who make the
4
final decision/ that would wipe out the examiner system". It must

be remembered however, that the learned Chief Justice in the First

Morgan case56 himself made it clear, "This necessary rule does not

preclude practicable administrative procedure in obtaining the aid

of assistants in the department. Assistants may prosecute inquiries.

Evidence may be taken by an examiner". The South Carolina Court

1. Prof. Wade, [Link]., 996-97.

2. 122, F 2D, 622.
3. Ibid at 625.
4. Administrative Law, 1951 at 332.
5. 298, U.S. 468.
6. Ibid at 481.
 717

thus observed, "The Morgan case does not hold , as it is sometimes

cited as holding, that the administrative agency which rnders a

decision, in a quasi-judicial proceeding must actually hear the,evide­

nce and see the witnesses, It does hold that the administrative agency

which makes the findings must address itself to the evidence, and

upon the evidence before it must conscientiously reach a conclusion

which it deems such evidence to justify".12
3

Prof. Bernard Schwartz says, "It is clear that when Chief

Justice Hughes declared that, "The one who decides must hear", he

was not using the word 'hear' with its usual or common meaning. Instead

he used 'hear' in a nonaural sense, as meaning that the one who decides

must give heed to the case and, directing his mind to it, must be the

one who actually exercises the deciding function. The one who decides

in form must be the one who decides in fact. The rule of the first

Morgan case is thus in reality-less elegant though it may sound than

the actual statement by Chief Justice Hughes; the one who decides
2
must decide".
3
rte must make it very clear that Morgan case did not decide

that the minister or the head of the department must be personally

present at the hearing. The ruling in that case only expected from

the head of the agency to consider and appraise the evidence collect­

ed by his assistants in the course of hearing and then to pronounce

the judgement. It is application of the mind that is more important

1. Pettiford v State Board of Education; 218, S.C. 322 at 362.

2. Institutional Administrative Decisions and the Morgan Case:
A Reexamination; 4 Journal of Public Law, 1955, 49 at 60.
3. 298, U.S. 468.
 T1Q

than that of sitting at the hearing procedure. In fact, it was made

clear in the second Morgan case^ that, "The Supreme Court has not said

that it was a duty of the Secretary of Agriculture to hear or read all

the evidence and in addition there to, to hear the oral arguments and

to read and consider briefs. If the Supreme Court had said that it

would have meant that the Packers and Stockyards Act.... cannot be
2
administered".

It is not the business of the court to "Probe the mental process -

es of the secretary in reaching his conclusion if he gave the hearing

which the law required".3 The American Supreme Court held in the Fourth
4
Morgan case that this type of interrogation of a deciding official

was improper. The court said "The short of the business is that the

secretary should never had been subjected to this examination

such and examination of a judge would be distructive of judicial

responsibility.... just as a judge cannot be subjected to such scru­

tiny .... so the integrity of the administrative process must be

5
equally respected".

It is clear, therefore, that the administrative agencies of

the government cannot follow strictly the rule that one who decides

must hear. The decider has to take the help of many assistants in the

decisional process of his department. A decision, which is taken in

such process, is called the institutional decision. Prof. Schwartz

says, that an institutional decision is a "vicarious type of hearing

1. 304, U.S. 1 (1938).

2. Ibid at 17 (2 3F. Supp.380 at 382).
3. 304, U.S. 1 at 18 (1938).
4. United States v Morgan, 313, U.S. 409 (1941).
5. Ibid at 422.
 719

and decision . Evidence is taken before a hearing officer..

** specia­

list on the staff contribute to the writing of the reports and recomm­

endations. The agency heads.... depends so heavily on the work of the

staff that they themselves may not know the details of cases decided

in their name11.

The institutional decision therefore, is not the personal deci­

sion of any individual officer but it is the decision of the agency

as an administrative entity. The work load of the agency heads is

too heavy to allow them to hear personally and to perform all the

duties imposed upon them by the law. This compulsion compells them to

take the help of the device of delegation. The United States Attorney

General final report of the Attorney Generals Committee on Administra­

tive Procedure says, "In general, it has been customary to designate

hearing officers before whom evidence may be adduced whether they be

a board of th ee or more individuals, or as is more common, a single

hearing officer, variously known as a trial examiner, a referee a

presiding officer, a district engineer, a deputy Commissioner or a

ii 2
registrar .

Clark J. is of the view that the practice of institutional

decision is just like the practice followed by English Court of

Chancery. The judge at that time took the help of Chancery examiners

in making the final judgement. Gradually these examiners’ responsi­

bility became more heavy. The learned judge observes, "Once having

entrusted discretion it was easy to expand its limits and make the

1. Administrative Law - A Case Book, 1977, pp. 493-94.

2. 44 (1941).
 720

deputization more actual. So we find the ancient office of master in

Chandery. His duty was not only to collect and collate but also to

report and recommend. With the growth of the centralised and centrally

placed quasi-judicial body, the time space factor compelled an

increased resort to both kinds of assistant. So nearly every one of

the federal boards employs some kind of field hearer11.12

The Advantage of the Institutional Decision:

The institutional decision ensures the cooperative process within

the agency. The opinions of experts in various fields play an important

role in the institutional decision making. Prof. Davis says, "An insti­

tutional decision of an administrative agency is a decision made by an

organisation and not by an individual or solely by agency heads. A

trial judge decision is personal, the judge hears evidence and agru-

ments and decides the case. In the administrative process evidence

may be taken before an examiner, the examiner or other subordinates

may shift the evidence, various kinds of specialists of the agencies

staff may contribute to the writing of proposed and final reports,

and the agency heads may in fact lean so heavily on the work of the

staff as to know little or nothing about the problems involved in

2
many of the cases decided in the agency’s name".

1. N.L.R.B. v Baldwin [Link], 128 F.2D. 39 at 54.

2. Administrative Law, 1961 at 330.
 721

Ihus, the institutional process is different from the courts

procedure and free from the technicalities of the courts. It ensures

the cooperative process within the department and saves the time and

money of the party affected. It also makes the administrative process

workable because 11 administration would come to a virtual stand still

if the heads of the governmental agencies were themselves required to

preside at every hearing to receive testimony".It is based on the

administrative convenience. Prof. Davis has rightly said# “The stre­

ngth springs from the superiority of group work-from internal checks

and balances, from cooperation among specialists in various discipli­

nes, from assignment of relatively menial tasks to low paid personnel

< 2
so as to utilise most economically the energies of high paid personnel”.

However, it does not mean that since institutional decision making

is different from the court proceedings, it is also free from apply­

ing the rule of fair play. Thus, the [Link] Court emphasized in

Second Morgan case that it is the function and not the institution

that is important in determining the procedural requirements. If the

function is judicial in nature, its exercise should be performed,“in

accordance with the cherished judicial tradition embodying the basic

.4 It does not matter whether it is performed
concept of fair play'12
3

by the court or by the agency.

5
In Local Government Board v Arlidge , the House of Lords held

that the institutional decision complied with all the essentials of

1. Gellhorn, Administrative Law; Cases and Comments. 1947,p.68y.

2. Administrative Law, 1951/ p. 330.
3. 304, U.S. 1 (1938).
4. Ibid at 22.
5 . (1915) A.C. 12U.
 722

justice. The decision in such cases, the court declared/ must of

necessity, be that of the agency as a whole, rather than that of any

known official or tribunal. Delegation by the head of the agency in

whose name the decision is made, is necessary to enable the agency

to perform its duties. Lord Haldane, the Lord Chancellor, declared,

the minister at the head of the board is directly responsible to

Par 1.1 oment J ike other ministers. He is responsible not only for what

he himself does but for all that is done in his department. The volu­

me of work entrusted to him is very great and he cannot do the great

bulk of it himself. He is expected to obtain his materials vicariou­

sly through his officials, and he has discharged his duties if he

sees that they obtain these materials for him properly, io try to

extend his duty beyond this and to insist that he and other members

of the board should do every thing personally would be to impair his

efficiency. Unlike a judge in a court he is not only at liberty but

is compelled to rely on the assistance of his staff. When, therefore,

the board is directed to dispose of an appeal, that does not mean

any particular official of the board is to dispose of it". Lord

dhaw was of the view that, the demand of a partcular party to know

the actual mind behind the decision that affected him was infact to

individualise the department for private purposes. "In my opinion,

this demand is unjustifiable. It is not supported by statute, it

would be inconsistent with past administrative practice, and it would

2
not tend to but might seriously impair, administrative efficiency".

1. Ibid at 133.
2. Ibid at 135-36.
 723

Thus, we see that the Alridge case1 gave the adminisration a green

light to fashion its own procedure.

The Disadvantages of Institutional Hearing:

The critics of institutional hearing are of the view that the

institutional decision unjustly deal with rights and obligations of

the parties affected by it. Prof. Alien23 is of the view that in insti­

tutional decision nobody knows exactly how it is arrived at. It is

impossible to say who makes the actual decision.

The United States Attorney General Report says that as the con­

duct of an administrative hearing ’’becomes divorced from responsibi­

lity for decision two undesirable consequences ensue. The hearing

3
itself degenerates, and decision becomes anonymous'1. Landis says,

"You must satisfy, that requirement of the individual who comes

before an administrative tribunal, ithat feeling that he wants to tall

4
the man who is going to decide that case". The chairman of the Attor­

ney General's Committee on administrative procedure, Dean Achenson

says, "The agency is one great obscure orgination with which the

citizen has to deal. It is absolutely amorphous. He pokes it in one

place and it comes out another. No one seems to have specific autho­

rity. There is some one called the commission, the authority, a meta­

physical omniscient brooding thing which sort of floats around the

air and is not a human being. That is what is baffling.... lhere is

1. (1915) A.C. 120.

2. Law and Orders, 1945, p.165.
3. 1941 at 45.
4O 9 Americal Law School Review, 139 at 182.
 724

no (sic) idea that Mr. A heard the case and then it goes into this

great bilding and mills around and comes out with a commissioner’s

name on it but what happens in between in a mystery. That is what

bothers people".12
8
7
6
5
4
3

Whatever the advantages or disadvantages of the institutional

decisions are, we must remember that it is not possible in the present

setup of administrative adjudication that the person who decides must

himself hear the person affected. The Morgan case^ didnot intend that

and the practical aspect of administrative adjudication cannot afford

it. The officials who assist in decisional process are the alter ego

of the minister of the department and "Since he is subject to the

fullest control by his superior is not usually spoken of as a deleg-

3 4
ate". The cases that have held so are; Lewisham Borough v Robers,
R. v Skinner^, Regolden Chemical Products Ltd.^, Woollett v Minister
7
of Agriculture and Fisheries.

The court have recognised that, "The duties imposed on minist­

ers and the powers given to ministers are normally exercised under

the authority of the ministers by responsible officers of the depart­

ment. Pub 1 i<- business could not be carried on if that were not the
i. 8
case".

1. Quoted in Davis Administrative Law, 1951, at p.357.

2. 298 U.S. 468 (1936).
3. de Smith [Link]., 307.
4. (1949) 2 K.B. 608 at 629.
5. (1968) 2 Q.B. 700.
6. (1976) ^h. at 307.
7. (1955) 1 Q.B. 103.
8. Carltona Ltd. v Commissioners of work
(1943) 2 All E.R. 507 at 563.
 725

^>ro^
* *^ e Smith says "There seems to be no general rule that

ministers when discharging functions of a judicial character must

direct their own minds to the cases before them. Nor is it necessary

for a minister to act personally in the exercise of powers of a legi­

slative character. In some departments statutory instruments are

signed by senior officials acting under a general grant authority from

the minister".1

The orders drastically affecting the liberty of the person how­

ever, have been required by the courts to be personally exercised by

the minister or to be personally attentive to such problems. The depo-

2 . 3
rtation orders , detention made under war time security regulations ,
. . 4
discretionary orders for the rendition of fugutive offenders are

some of the measures that affect the person drastically and the minis­

ters are required by the court of law to be more attentive, if possi­

ble, to look into the matter personally.

It is to be remembered that the main object of any decisional

process is to strike a reasonable balance between the interest of

individual, the interest of other persons and the national interest.

This balance cannot be achieved unless the head of the agencies are

well acquainted with the factors that have bearing upon an individu­

al's case. It is true that they cannot conduct hearings and inquiries

themselves but they are expected to use their wisdom and practical

1. [Link]., 308-09.
2. [Link] Police Station Supdt., ^x-parte ^ackstder (1918),
1 K.B. 578 at 585-86.
3. Liversidge v Anderson (1942), A.C. 206 at 223-24, 265, 281.
4® R. v Brixtonprison Governer, Ex—pairte [Link] (1963),
2 Q.B. 455 at 466.
 726

good sense in arriving at the decision

* They are not judges but they

have to act like judges

* "To put it another way, if one is empowered

.1 When we say that the

to act as a judge he should act like a judge'12
3

head of the department should act like a judge, we do not mean that

the procedure must be that of court. There are differences between

court and the agencies. In court procedures the judge personally

hears the matter and decides the case. In administrative procedures,

the hearing and evidences are taken by someone and decision is given

by some one else

* In the court procedure every material is put before

the parties concerned and there is no ground for complaint that any

material has been used against a particular party without giving an

opportunity to rebut the same. In administrative procedure, on the

other hand, the notings on the files and other routine departmental

activities go on and sometimes the rule of audi alteram partem is

violated.

We agree with the observation made by Lord ^haw in Local Govern-

2
ment Board v Arlidge , that "The judiciary should presume to impose

its own method on administrative or executive officers is a usurpat­

ion. And the asumption that the methods of natural justice are exne-
3
cessitate those of courts of justice is wholly unfounded".

However, it does not mean that a complete licence should be

given to the heads of the administrative agencies to decide the cases

without conforming to the fundamental principles of justice. It is

true that as a practical matter the heads are required to rely upon

1. Matter of Joice v Bruckman, 15 N.Y.8. 2nd, 679 at 681

2. (1915) A.C. 120.
3. Ibid at 138.
 727

internal assistance from others within the agency. This, however,

does not relieve the head of the department of the duty of personal

decision. The actual determination," must be made by the authority

itself, practical necessities demand that the authority be permitted

to assign performance of much of the preliminary work to trained sub—

ordinates". The agency heads are to determine how much actual consi­

deration they shall give to the record and how much they shall rely

upon the work of their staff. It depends upon their wisdom and

practical good sense.

The courts are required to regulate the procedures of the agen­

cies. In the name of administrative inconveniences the courts cannot

renounce their role which they have to play in the adjudicating proc­

ess. "Judicial abnegation and judicial abdication are two entirely

2 3
different things". Willis has thus, warned the English people agai­

nst the weakening judicial control over the agency functions. The

control exercised by thecourts over the institutional decisions must

be there to assuage the feelings of the parties affected. It is the

application of mind of the heads of the departments that is more imp­

ortant. Where the statute requires that a fair trial be given by a

fair and impartial hearing officer by weighing and appraising the

evidence, and if this procedure is not followed the court cannot

abdicate its responsibility and it will have to interfere to ensure

that the fair procedure is followed.

1. Weeks v O'Connel, 107, N.E.2D, 290 at 292 (1952).

2. Schwartz, 4, Journal of Public Law, 1955, 49 at 72.
3. The Parliamentary Powers of English Government Departments,
1933, p.3 quoted by ^chwartz in [Link]., at p. 73.
 728

A delicate balance has to be maintained between the administra­

tive functions and the interest of the parties. The administrative

heads must exercise their own personal judgements and decide solely

upon the basis of the materials in the public records. Prof. Schwartz

concludes "The agency would still be able to rely upon its institut­

ional resources, but it would have to do so subject to the scrutiny

of the parties. There may well be an additional burden on the agency,

yet it is not an intolerable one, and is more than justified by the

elimination of a basic grievance that private parties have against

the administrative process".^ In this connection, we must follow the

advice given by Lord Sumner in R. v Local Government Board . His

lordship suggested, "If it was our function to advise the Local Govern­

ment Board as to its procedure generally, or to criticise the procedu­

re actually adopted as such, I should for my part suggest that the

more open the procedure is the better. By all means let both the

appellant and the local authority see the Inspector's Report. By all

means let the appellant and the local Jauthority, too, lif it wishes,

see and address the judge: it is all in his day's work. Time spent

in removing a grievance or in avoiding the sense of it is time well

spent, and the Boards' Officials will, like good judges,

amplify
3
their jurisdiction by rooting it in the public confidence".

If this approach is adopted a proper, fair and satisfactory

decision may be made and it will satisfy the complaining party that

he has had the fullest opportunity of impressing his view point to

4
persuade the decision maker directly.

1. Schwartz [Link]., at 92.

2. (1914) 1 K.B. 160.
3. Ibid at 203-04.
4. [Link], "The One who decides must hear".
e J.I.L.I. 1959, p.423.
 729

In India, the institutional decision depends upon the rules

of business, if the rules of the department empower the heads to act

1
m a judicial manner, he is bound to do that. India v bhripati Ran j an

is the case on this point. The Supreme Court adhered to the rule of

the business clause in Samsher Singh v State of Punjab2. In Union of

India v [Link] the same line of reasoning was given. The sum

and substance of these rulings is that the President of India can

take the assistance of experts and as he is a constitutional head

his ministers can dispose of the appeals in his name.

However, the Supreme Court has provided a procedural safeguard

in the institutional decision that the party affected should be infor-

med of the official who has considered the matter. The court observed

11A party who approaches the Government in exercise of a statutory

right for adjudication of a dispute is entitled to know atleast the

4
official designation of person who considered the matter” . The other

important cases on this point are: Mahabir Prasad Santosh Kumar v

5 ,6 7
State of U.P., I.G. Joshi v Gujarat , [Link] v State of Madras ,
8
Rukmini Bai v Madhya Pradesh , Sanwal Ram v Additional District
9
Magistrate .

1. A.I.R. 1975, S.C. 1755.

2. A.I.R. 1974, S.C. 2192.
3. A.I.R. 1971, S.C. 1093.
4. Travancore Rayons, v India. A.I R. 1971, *S.C 862 at 864.
5. A.I.R. 1970, S.C. 1302.
6. A.I.R. 19§8, S.C. 870.
7* A.I.R. 1970, S.C. 1102.
8. A.I.R. 1975, S.C. 991.
9. A.I.R. 1982, Raj. 139.
 730

The Indian judiciary has been following the tradition of Arlidge

1
case . The court realises the practically speaking it will be imposs­

ible not to recognise the institutional decision in the administrative

adjudicating process. In Pradot Kumar v Chief Justice Calcutta2 the

Supreme Court held that it was not necessary for the Chief Justice

himself to make inquiry. In that case, the dismissed Registrar of

the High Court was given a hearing by another judge of the High Court

who was authorised by the Chief Justice to make an inquiry and submit

a report. The court saw nothing wrong in this process but insisted

that in such administrative powers the judicial standards had to

precede the exercise of the power.

What the court insists in such proceedings is that the rules

of natural justice should be followed. If the decision maker does

not submit the report to the affected party, on whose basis he decides

the case, it is not the violation of natural justice because the

person affected has been given hearing by the inquiry officer and

there the matter ends. The court did not agree with the petitioner
3
in Suresh Koshy George v University of Kerala , that a copy of the

report on the basis of which the notice was issued should be made

available to the affected person. The other cases that have held
4
so are: Keshav Mills [Link]. v Union of India Shadilal Gupta v

1. (1915) A.C. 120.

2. A.I.R. 1956, S.C. 285.
3. A.I.R. 1969, S.C. 198.
4. A.I.R. 1973, S.C. 389.
 731

State of Punjab1, Hiranath Mishra v Rajendra Medical College23

, Satwant
4

Singh v Board of High School and Intermediate Education.

The Supreme Court, it seems, followed the Morgan case^ in G.

Nageshwara rao v A.P. State Road Transport Corporation5. The court

observed, ’’This divided responsibility is destructive of the concept

of judicial hearing; If one person hears and another decides, then

personal hearing becomes an empty formality".67

This decision, if implemented, will be very difficult to follow.

In Raghav Menon v I.G. Police the Kerala High Court has held that
g
the Gulapalli case does not mean that the evidence should be taken

by the officer who makes the final decision. The same High Court
Q
stated in Moideen Kutty v State of Kerala that the rule "One who

hears must decide" does not preclude administrative tribunals from

reasonably delegating some of their functions and that what is required

by such authority is that they must conscientiously apply their minds

the record the case and reach their own conclusion on material so

placed. The Allahabad High Court took the same lining in Triambak
Pati v Board of High School and Intermediate Education,Allahabad?’0

However, the Madhya Pradesh High Court adhered to the rule that one

who decides must hear in Kumar Keshari Das v Divisional Engineer

Telephones.11 The High Court quashed the order of the Divisional

Engineer who relying on the satisfaction of the Commercial Officers,

passed the order of disconnection.

1. A.I.R. 1973, S.C. 1124.

2. A.I.R. 1973, S.C. 1207. 8< A>I>R<
1959, S.C. 308.
3. A.I.R. 1974, *lld. 273. 1961,
g. A#I„R. Ker. 301.
4. 298 U.S. 468. 10. a.i.r. 1973, All. 1.
5. A.I.R. 1959, S.C. 308. lle AeIeR. 1984, M.P. 158.
6. Ibid at 327.
7. A.I.R. 1961, Ker. 299.
 732

Prof. M.P. Jain says, “The statute of the rule ’one who decides

must hear remains uncertain in India. The executive may however,

accept the Gullapalli case as a pointer to improve the procedural

safeguard where the deciding officer himself does not conduct the

hearing, by making provisions which may ensure impartiality of the

hearing officer, impose in him the necessity of making a full and

adequate report to the ultimate decision maker along with his own

initial or recommended decision, which may be communicated to parties

before the final decision, require him to give reasons for his find­

ings, and give an opportunity to the parties to make representations

against the findings and recommendations of the hearing officer

*

These procedural improvement would serve the needs of society better

1
than a literal application of the ^ullapalli and a rigid principle".

Prof. Nathanson comments on the Gullapalli case in the following

words: "The danger of this approach is that if such implications are

drawn too freely and tend to impose substantial burdens on efficient

administration, the legislature will be tempted to dispense entirely

with theexplicit safeguards which provided the basis for the impli-

cation".
3
In Indore Textile Ltd. v Union of India the Madhya Pradesh High

Court did not follow Cullapalli where the official heard and the

Minister decided the case of take over of a mill under the Industries

(Development and Regulation) Act,1951. Our Supreme Court has turned

1. [Link]., p. 282. .
2 The Rioht to Fair Hearing in Indian, English and American
Administrative Law, J.I.L.I. vol. 1, 1958-59, 493 at 519.
3. A.I.R. 1983, M.P. 65.
 733

the institutional decision as ’very interesting question’ and has

s£an nothing wrong in this method of decisional process.^

lhe inotitutional decision has been upheld by the Privy Council

in Jeffs v New Zealand Dairy Production and Marketing [Link]

court of appeal upheld the same in R. v Preston B. C. Ex-parte Quiet-

3
lynn Ltd. Thus delegation of hearing is permitted but it should be

held in a reasonable and satisfactory mannero

The institutional decision is a solid weapon in the hands of

administrative agencies to cope up with the problems of vast admini­

strative functions, '■'•'he courts are preoccupied with other judicial

problems. In order to secure the advantages of efficiency and special­

isation and to get the laws of social and economic impact enforced,

the institutional decision has been very helping device. It is trure

that every device is likely to become the prey of misuse. Departmental

bias may also grow in the course of institutional hearing. "When the

administrative process is under fire we hear much of bias of the admi­

nistrators, forgetting that the creation of the more controversial of

these agencies was brought about by an explicit fear of the bias of

the judiciary. This fear cannot be counter acted by the accepted pro­

position that the courts are honest, because honesty is not enough.

The asserted judicial bias is not a bias towards individual litigants

4
but one against the policy of the basic statutes". To enforce the

new policies of the government is the responsibility of the administr­

ative agencies. They are free to reshape the procedure which they

want to adopt to meet the new situations.

1. [Link] Association of India v Modi A and C Ltd.
A.I.R. 1990, S.C 1744 at 1747. Administrative Law Investigat-
3’. (WW 83?’ug!r?308. [Link] Lar Review.599.
 734

The fear of abuse and misuse of the procedure should not be the

basis for discarding a procedure. It is true that some administrative

agencies are the prey of the over jealousness. Mcfarland has pointed

out, "this idea is so stressed that the result often amounts to zeal

to restrain proper administrator".1 This should be avoided. The insti­

tutional decisions are the part and parcel of the administrative

process today. It should not be distrubed. However, a free licence

should not be given to the agencies to act arbitrarily, disregarding

the fundamental principles of justice and fair play. The satisfaction

of the persons concerned is the real aim. The agencies must adopt such

procedures as will satisfy the requirements of the affected parties.

If the agencies fail to maintain a delicate balance between the

interest of the individual and the public interest, and if they tend

to become over jealous in their administrative tone, the whole of the

purpose of the institutional decision will be defeated. The courts

hands should always be long enough to reach the mischief of such

agencies. It is heartening to note that Indian judiciary has trans­

grassed the limits of Anglo-American courts in this area. Our court

has been insisting that it will not interfere for the sake of inter­

ference in administrative adjudicating process but that it will also

not give a blanket licence to the agencies to do whatever they like.

This is the most welcome attitude of the court.

"What is essential is", Says Sir E.C .[Link], "That ever and above

the political doctrine of Ministerial responsibility there shall be

a standard or administrative process. The standard should be regula­

ted by law, and safeguarded by right of appeal to the court.... Wide

1. Judicial Control of the”Federal Trade Commission and the Inter-

State Commerce Commission, 1933,p.l •
 735

discretion, there must be in all • •

ln ail administrative activity, but it
should be discretion defined in terms which can be measured by legal

lest cases of manifest injustice Jo unheeded and punished

*
!

1. "The Courts and the Administrative Process".

63/ The Law Quarterly Review/ 1947, 164 at 173<
 736

EXCLUSION OF THE AUDI ALTERAM PARTEM RULE

The audi alteram partem rule is not an absolute rule. It has

got some exceptions and limitations also. This rule can be excluded

by the very nature of the power, by the absence of legitimate expect­

ation, by the rule that a hearing would make no difference, by the

refusal of remedies in discretion and by rule that the employees can

be dismissed at pleasure.

Thus, the audi alteram partem rule cannot be applied blindly in

each and every situation. Prof. Wade remarks that 11 In truth the lesson

of the host of cases that have been brought before the courts is that

exceptions are conscpicuous by their absence wherever genuine admini­

strative power has been, exercised under statute with any serious

administrative effect on a man’s property, liberty or livelihood.

Where a right to be fairly heard has been denied, it is more probably

a case of a bad decision than of a true exception. The rule must come

close to deserving the judicial tributes quoted earlier: ’a principle

of universal application, a duty lying upon every one who decides

3
anything”.

The audi alteram partem rule is not applicable to the making of

legislation unless it is provided by statute. It has been held so in

Bates v Lord Hailsham4, R. v Whalley exparte Bordin and Co.5, Essex

Country Council v Ministry of Housing and Local Government6, Creednz

7
v Governor General
*
17 (1967) 2 A.C. 337”
2. Ibid at 349. r
3. [Link]., at 573. 6« 66 23.
4. (1972) 1 W.L.R. 1373. (1981) 1 M.Z.L.R. 172.
5. (1972) V.R. 748.
 737

The right to fair hearing may be excluded in the national secur­

ity cases. Lord Drplock observed in Council of Civil Service Unions

v Minister for the Civil Service12

3 that the executive Government

decided that the interest of national security required that no notice

could be given the judicial process is totally inept to deal

with the sort of problems which it involves. National security is the

responsibility of the executive government. What action is needed to

protect its interest is.... a matter upon which those upon whom the

responsibility rests and not the courts of justice, must have the
2
last word".

Lord Scarman echoed the same when he said "There is no abdication

of the judicial function, but there is a common sense limitation reco-

gnised by the judges as what is justiciable".

However, the word exception should not be read too much. Bhagwati

J. observed in Maneka Gandhi v Union of India45 "the word exception

is really a misnomer because in these exclusionary cases the audi

alteram partem rule is held inapplicable not by way of an exception

to fair play in action, but because nothing unfair can be inferred

5
by not affording an opportunity to present or meet a case".

Prof. Wade has rightly observed that one of the reasons why the

right to be heard "is a universal principle is that so little harm

can be done by granting it. The fewer exceptions that are made, the

sooner will all administrators will learn that this is some thing

which will never be denied or overlooked. The law should lose no

1. (1985) 1 A.C. 374.

2. Ibid at 412.
3. Ibid at 406.
4. A.I.R. 1978, S.C. 597.
5. Ibid at 629.
 738

opportunity to teach this lession".12

Prof, de Smith is of the view that parliament may by “apt words

expressly dispense with the need for notice or hearing although it

is prima facie requisite. It may permit enforcement powers against

persons and property to be exercised exparte. In the interest of

administrative efficiency and expedition it has excluded the operat­

ion of the rule, wholly or inpart in various other context".The

learned author has enumerated the following factors in which a prima

facie right to prior notice and opportunity to be heard may be held

to be excluded by implication.

1) Where the functions of the competent authority are held to be

non judicial;

2) where the authority in which is vested the power to decide is

entrusted with a wide discretion;

3) Where legislation expressly requires notice and hearing for

certain purposes but imposes no procedural requirement for

other purposes;

4) Where the action taken constitutes denial of a privilege as

distinct from interference with a right;

5) Where to impose an obligation to disclose relevant information

to the party affected would be prejudicial to jthe public interest.

6) Where an obligation to give notice and opportunity to be heard

would obstruct the taking of prompt action, especially action

of a preventive or remedial nature;

1. [Link]., at 579.
2. [Link]., at 183.
 139

7) Where for any other rpasnn ,-4. j

J reason it is impracticable to give prior
notice or opportunity to be heard;

8) Where appropriate substitutes for prior notice and opportunity

to be heard are available;

9) Where the matter in issue or the monetary value of ithe interest

at stake is too trivial to justify an implication that notice or

opportunity to be heard be afforded before action is taken;

10) Where the power exercised is disciplinary.12

5
4
3

In India, our courts have accepted the exclusion of the rule of

audi alteram partem on the ground of urgency in Maneka Gandhi and

Mohiner oingh Gills's cases. The court has generaJJy followed the

general exclusion of the common law. However, we must remember, as H.

M. deervai has pointed out that, "The British Parliament can exclude

or modify the requirements of natural justice, while in India any

enactment excluding or modifying these requirements must stand the

3
test of being consistent with fundamental rights". Our Supreme Court
4
has held in Union of India v [Link] that the requirements of

natural justice may be dispensed with either by the express words

of a statute or by necessary implication and a departure from these

rules may also be justified by necessity. The statutory rules and

provisions are important factors in deciding the fact that rules of

natural justice have been contravened orlnot. It should not be decided

5
by any preconceived notion.

1. de Smith, [Link]., 184-194.

2. A.I.R. 1978, S.C. 597; A.I.R. 1978, S.C
* 851.
3. Constitutional Law of India, vol.2nd, 1984, P-1444.
4. A.I.R. 1971, S.C. 40 at 42.
5. New Prakash Transport Co. Ltd. v New buwarna transport [Link].
A.I.R. 1957, S.C. 232.
 740

The rule audi alteram •

partem is a dyanamic rule. It can vary
with the varying circumstanraq t+-
es. It can be excluded where the necess­
ity so demandsbut it should ,
not be excluded simply to satisfy the
whims of the departments if
t the rules are excluded and the specific
law substitutes the rule of natural
natural justice that substituted law
Should be observed fully and that will be deemed to be compliance

with the rule of natural justice. The cases that have held so are:

, Fairman v Union of
S.K. Chakravorty v Director of Postal Services12
3
• 2
India , Bengal Potteries Ltd. v Bengal Potteries Workers Union\ N.P.

Nachane v Mukund Iron and Steel Works Delhi4, Girimint Colliary of

West Bengal Coal co. Ltd. v Workmen Gaze of India56

, Burn and Co. v
8
7

Workmen . In Mohinder Singh bill’s case the Supreme Court observed,

We may not be taken to say that situational modifications to notice

and hearing are all together impermissible. The Glory of the Law is
that
not^sweeping rules are laid down but that it tailors principles to

practical needs, Doctors remedies to suit the patients, promotes not

Q
freezes, life's processes, if we may mix metaphors".

1. 1963, 1 L.L.J. 698.

2. A.I.R. 1954, S.C. 587.
3. 1952, 1 L.L.J. 44.
4. Govt. Gaz. 1, L, 25967 p.3066.
5. 13567. 1689 (IT)
6. 2 F.J.R. 217.
7. A.I.R. 1978, S.C. 851.
8. Ibid at 874.
 741

effect of the Breach of the^uax Aiteram Partem Rule

rhe effect of the breach of audi alteram partem rule is that

the decision taken in violation of the rule is null and void. The

judicial declarations that a judicial tribunal ought not or must not

condemn any one unheard or behind his back, "have always been common.
10 Though, [Link] does not agree with
The duty is undoubted".12
9
8
7
6
5
4
3

the view that the breach of the rule goes to the jurisdiction,"And

these declarations by no means implied that the objection to deciding

against a party not heard was an objection to jurisdiction"•Yet

the fact remains that the breach of the rule goes to jurisdiction and

"a judgement is void if made without jurisdiction". There are many

cases which hav& described the breach of this rule by the administr­
ative agencies as a void act on their part. Such acts are void^, a

5 6 7 8
nullity , null and void , wholly void , void abinitio and void and
9 10
of no effect. It was held in Sir Nicholas Bacon's case that depart­

ure from either of the rules of natural justice brings about voidness.

1. The Observance of Law, as a condition of jurisdiction, 1931,

part II, The Law quarterly Review, p. 557.
2. Ibid at 557.
3. The Marshalsea (1612) 10 [Link].68B.
4. Banks v Transport Regulation Board (1968) 42 A.L.J.R. 64
at 70 Attorney General v Rayon (1980) A.C. 143.
5. R.v Natbell Liquors Ltd. (1922) 2 A.C. 128 at 160.
6. Cooper v Wilson (1937) 2 All E.R. 726 Vine v [Link]
board, (1956) “11 E.R. 939, Cieeworth v Barrow (1978) 20 A.L.R.
359 at 371. - .
7. Allinson v General Medical Council (1894) 1 Q.B. 750.
8. Barrier Reef Broadcasting [Link]. v Minister for Post and
Telecommunications (1970),19 A.L.R. 425 at 447. *
9. Forbs v New South Wales Trotting Club Ltd. (1979) 25,AL.R.i at 35.
10. (1563) 2 Byer 220B.
 742

The older authorities emphasize that the breach of this rule is

the erosion of the jurisdiction and that goes “To the root of juris­

diction". The other cases have held the breach of this rule as a

clear , manifest or gross excess of jurisdiction^. There is there­

fore, no doubt that the breach of this rule entails jurisdictional

vice.

We have got the clear authorities on this point that convictions

and orders of the tribunals made without service of summons or other

original process upon an absent defendant are made without jurisdict—

z- T
ion. Ihese older authorities are: Capel v Child , Bonaker v Kvans ,
p
Cooper v Wandsworth Board of Works t Hopkins v Smethwick Local Board
9 10
of Health , Brutton v St. George's, etc. Vestry , Labouchere v Bari
11 12 13 14
of Wharmcliff , Russel v Russel , Wood v Woadx , Bmith v R. , Mason
v Barker I'3, R. v Evans Inrehammer Smith Rentcharge"'-^, R. v Benn and

18 19 20
Church , Harper v Cock , R. v [Link] D.D. , In exparte Thomas
21 22 23
Kinning , R. v Simpson , Cibbs v Imauel Stead and W. Reed , R. v

1. Andrews v Michell (1905) A.C.78.

2. Ex-parte Northern Rivers Rutile [Link]. Reclaye (1965),
82, W.N. (N.S.W.) 514 at 519-20.
3. R. v Foster, Exparte Issacs, (1941) V.L.R. 77 at 83.
4. Exparte Blackwell, Reheatley
5. R. v Wandsworth Justices, exparte Read, (1942) 1 All E.R.56.
6. (1832) 2 C.R. and J. 558 at 579.
7. (1850) 16 Q.B. 162.
8. (1863) 14 C.B. (N.S.) 180.
9. (1890) 24 Q.B.D. 713.
10. (1871) L.R. 13, E.Q.345.
11. (1879) 13 C.H.D. 364 at 350.
12. (188 ) 14 C.H.D. 471 at 478.
13. (1874) L.R. 9, Ex.196. 20. 8 T.R. 209 at 210.
14. (1878) 3 A.C. 614. 21. 4 C.B. 507 at 526 (136 E.R.605)
15. (1843) 1 [Link] K.100. 22. 10 M.O.D. 377 at 380(88 E.R.771
16. (1850) 19 L.J.M.C. 151. at 772).
17- (4 Ex.87 at 97) 158 E.R.1136. 23. 8 B.& C. 527 (108 E.R. 1138).
18. 6 T.R. 198 (101 E.R.509)
19« 7 T.R. 275 (101 E.R.972)
 743

Francis and John Rogers1, r.v Smith2

v Vicar of St. James Colch-
3
ester , R. v Governors of Darlingston School^, Fishe v Lane^, R. v
John Wilson6, Painter v Liverpool Gas
7
Q
Co. , R. v The Ballif of
Ipswich , R. v Venabels9
v The Bishop of London1^, R. v Dyer11,
12
R. v Totnes Union , The Agincoura12 11
10 14
9
8
7
6
5
4
3
2
1
13 , Winning’s case^\ Hammond v
Bindyshe15, R. v The Arch Bishop of C
nterbury1617
, R. v The Ghesire
17
Lines Committee , r, v C.iean1820
19 D
■ yy , k. v Kingston upon Hull Rent Tribunal,
exparte Black , R. v Manchester Legal Ai<J Committee r.a_

and ‘-O. Ltd. , R. v Huntington Confirming Authority21.

1. 3 A.D. & E. 425 at 431 (ill E.R. 475).

2. 5 Q.N. 614 at 622 (64 R.R. 590).
3. Eater Term 7th Nov. 1835 (64 R.R. p. 596).
4. 6 6.B.D. 695 at696 (66 R.R. 531)
5. (95 E.R. 1065) at 1068)
6. 3 A.D. and E. 817 (ill E.R. 624).
7. 3 A.D. and E. 435 (ill E.K. 478).
8. 2 L.D. Ray.1232 (92 E.R. 313).
9. 2 L.D. Rayn.1406 (92 E.R.415).
10. 13 E'.A.S.T. 419 at 427 (12 R.R. 393).
11. 1 Salkeld 181, (91 E.R. 165)
12. 7 Q.B. 690 at 699 ( 68 R.R- 539).
13. 1 Hagg. and A.D.M. 271 (33 R.R. 717).
14. 10 Q.B. 730 at 740 (116 E.R. 277).
15. 13 Q.B. 869 at 873 (116 E.R. 1495).
16. 1 E.&. E. 545 at 559 (120 E.R.1014).
17. 8 Q.B. 344 at 348.
18. 8 M.O.D. 4 (88 E.R
* 3).
19. 8 All E.R. 260 (1949).
20. 1 AH E.R. 480 at 490 (1952).
21. (1929) 1 K.B. 698 at 713.
 744

The logical conclusion , therefore, is drawn from the above

decisions that the breach of the audi alteram partem rule is unjusti­

fied, ultra vires and void. The tribunals who disregard this rule are

said to have no jurisdiction and a decision made without jurisdiction

or power is invalid. The courts must be satisfied that the essential

elements of defined factual situations are all present. If these are

present, the courts will not sustain the decision. It is the duty of

the court to see that the tribunals and other administrative agencies

are not permitted to travel beyond their permitted boundaries. 1'he

jurisdictional facts become more important, these facts are concerned

with the constitution of the tribunals, if they are appointed invalid­

ly or appointed for the purpose other than the stipulated purpose in

the Act, it is enough ■ for the courts to declare the actions taken

by such agencies as void, having to legal effect at all.

The central principle of administrative adjudicating process is

that these tribunals, agencies and other public authorities may not

act out side their powers. The courts maintain their control over

these agencies by the art of statutory construction. "It is presumed

that parliament did not intend to authorise abuses, and that certain

safeguards against abuse must be implied in the Act. These are

matters of general principle, embodied in the rules of law which

govern the interpretation of statutes. Parliament is not expected to

incorporate that expressly in every Act that is passed, -they may be

taken for granted as part of the implied conditions to which every

Act is subject".1

!• Prof. Wade,[Link]., P-40.

 745

The action of the agencies which is ultravires, that is, which

is done without the authrority of doing that, is unauthorised by law

*

out side jurisdiction, is null and void, and of ho legal effect. When

the rules of natural justice are violated, they go to the jurisdiction

and they are held to be voidunder the same implied statutory conditions

Prof, de Smith is of the view that the breach of "Natural justice

goes to jurisdiction (or is closely akin to jurisdictional error) and

makes a decision void".12
4
3

2
In Fuller v Fotch Chief Justice Holt said/ "This diversity that

if the commissioners had intermeddled with a thing which was not

within their jurisdiction/ then all is coram non judice".^ Thusr the

learned Chief Justice was of the clear view that actions of the auth­

orities which disregard the principles of natural justice are without

jurisdiction and such acts are null and void.

The jurisdictional fact is more important in administrative adju­

dication. If a tribunal "has jurisdiction to go right he has jurisdi-

4
ction to go wrong". Prof. Wade says, "In this area jurisdiction is

a hard worked word. Commonly it is used in its broadest sense, meaning

simply power. In some context it will bear a narrower sense of power

to decide or power to determine but there will be no technical differ­

ence. In fact, except in the special case of error on the face of

the record, the principle Jhere at work is basically that of ultravires,

whichis synonymous without side jurisdiction or in excess of power".5

In Terry v Huntington5 the commissioners were authorised to levy duty

T. [Link]., p.152.
2. (1695) darthew 346.
3. Ibid
4. Per Lord Reid in R. v Governor of Brixton Prison exparte
Armah (1968) A.C. 192 at 234.
5. [Link]., 280 6. (l688) bardr. 480.
 746

only on 'strong wines' but they had levied on 'low wines'. i’he courts

termed the action of commissioners as ultravires. Hale C.B. said this

is, a stinted limited jurisdiction, though the information before

them supposes the matter to be within..their power and jurisdiction,

yet the party is not thereby concluded butthat he may aver the

contrary • The other cases holding the same dicta are Fuller v Fotch?
3
St. Johns’s case .

Thus, the jurisdictional fact decides the validity of the action.

“Jurisdiction is an expression which is used in a variety of senses

and takes its colour from its context"/ Lord Denman C.J. observed,

“The question of jurisdiction does not depend upon the truth or false­

hood of the charge but upon its nature, it is determinable on the

commencement, not at the conclusion, of the inquiry”.

Thus, it is on the commencement of the inquiry that the juris­

dictional question comes in, if the acts of the agencies are out side

of their jurisdiction, they are declared null and void by the courts.

At the beginning many High Courts of our country had invalidated the

action of the tribunals on the ground that they have not been validly

constituted or they have done the acts for which they were not consti­

tuted. The important cases are: Maharaja Shri Umaid Mills Ltd. v
Industrial Tribunal Jaipur^, Sasamusa Sugar Morks v State of Bihar ,
8 9
Rangaraj v Gram Panchayat Thinwel , Jivaram v Pancbayat Adalat ,

1. (1688) Hardr. 480. '* 1955,Pat. 49.

1952,Raj.144.
2. (1695) Carthew. 346. *
3. (1601) 5 [Link].61B. y- 1952,All.510.
4. Anisminic Ltd. v Foreign Compensation
Commission; (1967);3 W.L.R.382 at 394.
5. R. v Bolton (1841) 1 0-B. 66.
6. A.l.R. 1954, Raj.274.
 747

Mewar Textiles Mills Ltd v Industrial Tribunals1. The courts have

insisted that the tribunals must not travel beyond their stipulated

boundaries.

rte have tried to make a detailed account of the jurisdictional

fact to make our point clear that breach of the audi alteram partem

rule goes to the root of the jurisdiction. [Link] has, no doubt,

shown that historical research indicated that breach of the rules was

attacked by means of the writ of error before the prerogative writs

were well developed, and for this purpose such breach was classified

an error infact, which rendered the resulting judgement voidable not

2
void. But Akehurst, M.B. is quite right when he points out that as

long as the writ of error and the perrogative writs coexjisted it

is hardly to be supposed that the intrinsic nature of the defect would

vary according to the techniques of review adopted. But after the

abolition of the writ of error in 19th century, the very concept of

the error infact came to be forgotten.

Lawyers who regarded jurisdictional defects and error of law on

the face of the records as the only two ground justifying the issue

of certiorari, which in the mid 19th century was the main form of

reviewing administrarive decisions, were faced with the txocrusteen

task of fitting breach of the fules of natural justice into one of

these two categories. Breach of those rules did not normally appear

on the record, and therefore, like jurisdictional defects but unlike

error of law on the face of the record, it could be (and in practice

had to be) proved by affidavit. For these reasons there was considered

2. Certiorari^nd the Revival of Error in Fact (1926) 42 L.Q.R.521

at 526.
 748

to be no alternative to analysing breach of rules of natural justice

in jurisdictional terms

the fact that this conclusion is-based on a misunderstanding

of legal history does not necessarily mean that it is not good law

to day. In examining modern law, the question to be asked is not

whether a principle is historically sound, but whether it is support­

ed by strong authority, consistent with logic, and in accordance with

the requirements of contemporary society".1

The learned author says that many of the alleged logical object­

ions regarding breach of the natural justice as going to jurisdiction

are based on an over restrictive definition of jurisdiction. I'he

courts have always regarded jurisdiction as a notoriously elestic

concept, and there is moreover, a difference between want of juris­

diction and excess of jurisdiction. The breach of the audi alteram

partem principle might produce either a want of jurisdiction (e.g.

where a defendant is not summoned) or an excess of jurisdiction (e.g.

where he is summoned but not allowed to address the court) .

It is, clear, therefore, that the failure to observe the audi

alteram partem rule renders the decision void. It has been observed

in many cases2 that breach of the natural justice always vitiate a

decision, whether or not there was a substantial miscarriage of

justice, and whether or not the decision would Jhave been the same

if the rules had been observed. The court has no option but to quash

or reverse decision and it is immaterial whether the decision was

1. Void or Voidable? Natural Justice and Unnatural Meaning,

31, The Modern Law Review, 1968, p.1-2.
2. General Medical Council v Spackman (1943); A.C.627 at 644-45;
R. v Smith, (1844) 5 Q.B. 614; R. v Recorder of Cambridge (1857)
8 E.& B. 637 at 647.
 749

void or voidable. "On the whole, then, breach of the rules of the

natural justice is regarded as rendering a decision void".1*3

5
4

2
Ridge v Baldwin made it very clear that the rule of audi alteram

partem is an important rule and if it is violated it will render the

decision void. Lord Keid observed, “Then there was considerable argu­

ment whether in the result the watch committee’s decision was void

or merely voidable, lime and time again in the cases I have cited it

has been stated that a decision given without regard to the principles

of natural justice is void and that was expressly decided in Wood v

3
Woad . I see no reason to doubt these authorities. The body with the

power to decide cannot lawfully proceed to make a decision until it .

has afforded to the person affected a proper opportunity to state

4
his case". Lord Hodson also observed, “In all the cases where the

courts have held that the principles of natural justice have been

flouted, 1 can find none where the language does not indicate the

opinion held that the decision impugned was void. It is true that

the distinction between void and voidable iis not drawn explicitly in

the cases, but the language used shows that where there is a want of

jurisdiction as opposed to a failure to follow a procedural require­

ment the result is a nullity"

In this case however, Lord Evershed argued that watch Committee's

decision was not void but voidable, and if the decision were merely

voidable the court need quash it only in case of real substantial

miscarriage of justice.^ Commenting on this, Prof. Wade says. This

F. 31 M.L.R. 1 at T.
2
* (1964) A.C.40.
3. (1874) L.R. 9 Ex. 190.
4. (1964) A.C. 40 at 80.
5. (1964) A.C. 40 at 136.
Ibid at 91.
 750

policy is open to the objection that it would introduce dangerous

uncertainty - one might say, palm-tree injustice. Natural justice

has for centuries been enforced for a matter of law and not of dis­

cretion.... it is not discretion that is needed but consistency. The

right to natural justice should be as firm as the right to personal

liberty. This is a vital part of the rule of law".12

4
3

In Attorney General v Rayan^ the Privy Council has said "it has

long been settled law that a decision which offends against the

principles of natural justice is out side the jurisdiction of the

decision making authority".

Lord Diplock observed in Isaacs v Robertson^ "The contrasting

legal concepts of voidness and voidability form part of the English

law of Contract. They are inapplicable to orders made by a court of

unlimited jurisdiction in the course of contentious litigation. Such

an order is either irregular or regular."56 Lord Diplock made it

clear in that very case that the breach of the natural justice entit­

les a party to have the order set aside exdebito justitiae (meaning

as of right).

Lord Russel has observed in Fairmount Investments Ltd. v becre-

tary of States for the Environment "It is to be implied, unless the

contrary appears, that parliament does not authorise by the Act the

exercise of powers in breach of the principles of natural justice,

and that parliament does by the Act require, in the particular

1. [Link]., 527.
2. (1980) A.C. 718.
3. Ibid at 730.
4. (1985) A.C. 97.
5. Ibid at 103.
6. (1976) 1 W.L.R. 1255.
 751

.
procedures, compliance with those principles'
* 12
4
3

Megarry J. has said, A decision reached by a tribunal wholly

out side its jurisdiction and in complete defiance of natural justice

is about as void as anything can be, but if nobody who is entitled

to challenge or question it choses to do so, it remains in [Link]

to describe such a decision as being voidable is to use that word

in a sense that is not only very special but liable to mislead1'. 2

ihus, Ridge v Baldwin is a milestone in doing away with the

controversy with regard to the result of the breach of the audi

alteram partem rule. It clearly held that the breach renders the deci­

sion void. [Link] comments,"Since Ridge v Baldwin restored light

to an area benighted by the narrow conceptualism of the previous

decade, those wielding statutory or contractual power in a wide vari­

ety of contexts have found its valid exercise made conditional .upon

compliance with the requirements of 'fair play in action'. In the

train of the recognition that 'good administration' imports not merely

impartiality but the affording of a hearing that is fair in all the

circumstances, the stultifying shibholeth made of the classification

of functions as 'judicial1 or 'administrative' has been increasingly

abandoned. It would not be immoderate to describe as dramatic the

4
pace of consequent advancement beyond the old frontiers".

1. Ibid at 1263. , . ,
2. Hounslow London Borough Council v Twickenhan Garden Development
Ltd. (1971) Ch.233 at 259.
3. (1964) A.C. 40. .
4. Natural Justice, Substance and Shadow: 1975, Public Law,p.27.
 752

Despite the clear decision by the House of Lords in the Kidge's

case that the breach of the rule of the audi lateram partem rule

renders the decision void abinitio; and has never been of any effect,

the Privy Council held in ^urayappah v Farnando2 that an order dissol­

ving a council in contravention of the audi alteram partem rule was

voidable but not a nullity. "Their lordship therefore, are clearly of

opinion that the order of the minister was voidable and not a nullity.

Being voidable it was voidable only at the instance of the person

against whom the order was made, that is the counciJ, but the council

had not complained• The appellant was no doubt mayor at the time of

its dissolution, but that does not give him any right to complain

independently on the council. He must show that he is representing

3
the councel".

The Privy Council in that case took up the void or voidable part

of Lord Evershed's dissenting speech in Ridge’s case but applied it

in a different way for a different purpose. “Although in substance

they followed the decision of the majority of the House of Lords in

Ridge v Baldwin, holding that the principle audi alteram partem was

applicable, they showed an evident preference for Lord Evershed's

dissentient reasoning designed to arrive at the opposite result. Thus

part of his doctrine about 'void or voidable' has been interwoven

with a decision with which it is inconsistent, there is also an obvi­

ous inconsistency of purpose. Lord Evershed s propositions were

devised for the purpose of holding that the dismissal of a chief

1. (1964) A.C. 40.

2. (1967) 2 All E.R. 152.
3. Ibid at 160.
 753

constable, in violation of natural justice, was valid, unless the

court elected to avoid it, as between the watch committee and the

Chief Constable. But the Judicial Committee used it for a new rule

about the rights of third parties, under which it seems that certio­

rari may now be refused to all except persons against whom an order

is made directly" .

lhere is no doubt on this point that breach of the rule of audi

alteram partem is void and it has got no legal effect. Kelson has

rightly said, It is a true annulment, and annulment with retrospect­

ive force, lhere must be something legally existing to which this

decision refers.... It has to be considered as a norm annuled with

. 2
retro-active force by the decision declaring it null abinitio".

Dr. Peterbrest is of the view that breach of the rule of audi

ateram partem makes the decision void. “Gross breach of the natural
3
justice rules amounts to excess of jurisdiction’.'

Thus, we see that when an authority is invested with the power

to make decision affecting the rights, privileges and intersts of

the persons, he has to follow the procedure prescribed by the statute,

failure to comply with these requirements renders the decision ultra-

vires. Upon these statutory obligations there is super imposed the

further duty of observing the rule of natural justice, the breach of

which will make the decision null and void.

1. Unlawful Administrative Action: Void or Voidable: 83,

The ^aw Quarterly Keview,499 at 506 ([Link]).
[Link] Theory of Law and State, p.131.
[Link] on Constitutional and ^administrative Law, 1962 p.403
*
 754

When we say that, the breach of audi alteram partem rule renders

the decisions void, and that it is of no legal effect, we do not mean

to say that it will automatically cease to have any effect. It is

true that, such decisions are destitute, of legal effect, they can

be ignored with impugnity, they confer no legal right on any body and

also that some times the courts refuse to entertain appeals against

void decision because they are nugatory. Yet, as de Smith has pointed

out, Although an ultravires decision is in—effective against the

party agrieved, he may need, for his own protection a formal pronoun­

cement of a court setting the decision aside or declaring it [Link]

void. If he takes no judicial proceeding at all within the prescribed

statutory time limit, the void decision will become as impregnable

as if it had been valid in the first place. And until he has obtained

such a judicial pronouncement in an appropriate form of proceedings,

third parties (lacking locus standi to impugne the invalid decision)

may be obliged to treat it as if it were valid".12

Thus, the decisions of the administrative agencies taken in

flagrant disregard of the rules of natural justice are void. It is

2
true that "There are no degrees of nullity". Yet the difference

between the void and voidable Jshould not be stressed too much, de

Smith rightly says, "For although the courts have expanded the range

of errors that go to the jurisdiction for some purposes (especially

the avoidance of apparently absolute bare to judicial review), they

have been unwilling to extend for all purposes what might be regard­

ed as the logical implications of nullity. The realm of lest legal

1. [Link]., 153. . .
2. Anisminic Ltd. v Foreign Compensation Commission (1969)
2 A.C. 147 at 170, per Lord Reid.
 755

effectiveness may be reserved for those decisions that ex facie are

ultravires or without jurisdiction".1

Lord Moris echoes the same in Kidge v Baldwin23

. His lordship

observed, It was submitted that the decision of the watch committee

was voidable but not void. But this involves the inquiry as to the

sense in which the word voidable, a word deriving from the law of

contract, is in this connection used. If the appellant had bowed to

thedecision of thewatch committee and had not asserted that it was

void, then no occassion to use either word would have arisen. When

the appellant in fact atonce repudiated and challenged the decision ,

so claiming that it was invalid, and when in fact the watch committee

adhered to their decision, so claiming that it was valid, only the

court could decide who was right. If in that situation it was said

that the decision was voidable, that was only to say that the decis­

ion of the court was awaited. But if and when the court decides that

the appellant was right, the court is deciding that the decision of

the watch committee was invalid and of no effect and null and void.

The word voidable is therefore, opposite in the sense that it became

necessary for the appellant to take his stand, he was obliged to

take action, for unless he did, the view of the watch committee, who

were in authority, would prevail. In that sense, the decision of the

■ 3
watch committee could be said to be voidable".

It is clear, therefore, that an order passed in violation of

principles of natural justice is void and not voidable., but the key

1. [Link]., 152.
2. (1964) A.C.40.
3. (1964) A.C. 40 at 125.
 756

note of the problem is that the word void is not an absolute term.

Its relativity is to be emphasized. Prof. Wade says, "Void' is there­

fore meaningless m any absolute sense. Its meaning is relative,

depending upon the court's willingness to grant relief in any parti­

cular situation. If this principle of legal relativity is borne in

mind, confusion over void or voidable can be avoided. A case could

be made for using either term in relation to invalid axts. But so

long as the ultra vires doctrine remains the basis of administrative

law, the correct epithet must be void".12

Seervai is of the view that the decision rendered in violation

of the audi alteram partem rule is no doubt a void decision.

It is, thus, clear that the void order in itself is not going

to give relief to the party affected. The court has to be approached

to get that order set aside. It would be better for the person affect­

ed to approach the court for that otherwise he may be put in difficu­

lty. Prof. M.P. Jain says, "Accepting the voidness rule will make

authorities take more care in passing orders after fulfilling all the

necessary formalities. It will also denude the ccurts of a discretion

whether to set aside an order or Jhot in case of violation of natural

ustice. However, there may be some situations when violation of a

void order may not be excusable, e.g., when a prisoner escapes from

the prison thinking that the administrative order under which he

has been detained is void.... It is an area where no general princi­

ple can be held applicable to all the varying situations because

1. [Link]., 353.
2. [Link]., 1281.
 757

What has to be reconciled here is public interest with private rights.

In most of the cases, the courts can meet the difficulty by using

their power to grant stay orders, i.e. staying the implementation of

the order challenged until the court is able to decide the question
« ■ i, 1
on merit”.

It is interesting to note in this connection the opinion of

Lord Denning, M.R. His contribution to the field of administrative

law is remarkable. However, after the trend setting judgement of

2
Ridge v Baldwin his lordship began to observe that bad faith or

breach of natural justice would make an order voidable only and not

a nullity. He has held so inthe following cases: R. v Paddington

3
Valuation Officer Ex-parte Peachy Property Corporation Ltd. , Director
4 5
of Public Prosecution v Head , Macfoy v United Africa Co. Ltd. , James
v Minister of Housing and Local Government4
*67
, R. v Secretary of State
7 8
for the Environment ex-parte ostler , However, in Firman v Ellis
his lordship seems to have changed his opinion and concluded that the

orders made in violation of natural justice is void. “On being set

aside, it is shown to have been a nullity from the beginning and

void"? He has also remarked in his book 'The Discipline of Law' "I

canfess that at one time 1 used to say that such a decision was not
the error of my ways"}^
void but only voidable But I have seen

Thus now he is of the view that a decision rendered in violation of

the rules of natural justice is a void decision and it has to be set

aside by the court.

1. [Link]., 306-07. 7. (1977) Q.B. 122.

2. (1964) A.C. 40. 8. (1978) Q.B. 886
3. (1966) 1 Q.B. 380 at 402. 9. Ibid at 908.
4. (1959) A.C.83. 10. The discipline of Law,
5. (1962) A.C.152 at 160. 1977, 109.
6. (1966) 1 Q.L.R. 135
 758

The Indian Judicial Thinking:

The Indian judicial thinking is not much different from the

British tradition. The order not complying with the principles of

the natural justice, is said to be void, but in effect, it has been

treated only voidable. It means that the order would have some effe­

cts and would exist in law until it is so declared by the competent

body or the court. This shows that Indian judiciary has accepted the

doctrine of relativity of voidness propounded by Prof. Wade, though

as Prof. S.N. Jain said, "There was no compelling necessity for the

court, in India to adopt these English concepts”.1

However, some judgements go to show that the proceeding of

administrative bodies taken in flagrant disregard of the rule of audi

alteram partem is completely void. Thus, justice [Link] of the

2
Supreme Court observed in Sirsi Municipality v C.K. Tellis, "Violat-
3
ion of rule of natural justice results in a legally void decision11.
4
In Nawab Khan Abbas Khan v State of Gujarat Krishna Aiyer J. obser­

ved, "We express no final opinion on the many wide ranging problems

in public law of illegal orders and violations thereof by citizens,

grave though some of them may be. But we do hold that an order which

is void may be directly and collaterally challenged in legal proceed­

ings. An order is null and void if the statute clothing the administ­

rative tribunal with power conditions it with the obligation to hear,

expressly or by implication. Beyond doubt, an order which infringes

a fundamental freedom passed in violation of the audi alteram partem

1T mIs an Individual "bound by an illegal executive order? distinction

between ’void1 and1 voidable! Administrative Orders .16 J.I.L.I.
322 (1979).
2. A.I.R. 1973. 4. A.I
R«
* 1974, S.C
* 1471.
3. Ibid at 861.
 759

rule is a nullity. When a competent court holds such official act

or order invalid, or sets it aside, it operates from nativity, i.e.,

the impugned act or order was never valid11

The learned judge further said that, ’’The legal chaos in this

branch of jurisprudence should be avoided by evolving simpler conce­

pts which work in practice in Indian conditions. Legislation, rather

than judicial law-making will meet the needs more adequately. The

only safe course, until simple and sure light is shed from a legisla­

tive source, is to treat as void and ineffectual to bind parties,

from the beginning, any order made without hearing the party affected
2
if the injury is to a constitutionally guaranteed right”.

3
In Maneka Gandhi’s case Chief Justice Beg again ruled that the

order of the Government of India impounding the passport of the peti­

tioner was void because of the breach of the audi alteram partem rule.

Majority in that case also observed that the impunding of passport

was clearly in the violation of the audi alteram partem rule and that
3
it was fatal defect which could void the order. But the court, taki­

ng note of assurance by the Attorney General on behalf of the Govern­

ment of India that a time bound early opportunity would be given to

the petitioner to make her representation, declined to interfere

4
with the impoundment order.

The court clearly ruled that the breach of the rule renders the

decision void but the court is required to pronounce its judgement

on that and if the court is satisfied that deficiency at the first

1. Ibid at 1479-80.
2. Ibid at 1479. r
3. A.I.R. 1978, S.C. 597 at 612.
4. Ibid at 624.
 760

stage can be mitigated by the sufficiency at the second stage then

the void decision can be turned into a valid one. The Supreme Court

ruled the same in Swadeshi Cotton Mills v Union of India1, in Tea

Trading Corporation v Pashok Tea Co.^, [Link] v Jagmohan^, In S.

Kapoor s case the Municipality was superseded without giving a

hearing# lhe court held the order void but did not set aside the

decision,

M.P, Singh comments “The court has not recorded any sound

or convincing reason for relegating the requirement of hearing to an

expost-facto hearing in case of passports, as K.C . Davis has pointed

out, unless the law expressly so provides the ex-post-facto hearing

cannot be substituted for a prior hearing. 1Maneka Gandhi1 thus modi­

fies the Nawab Khan ruling to the extent that non observance of the

principles of natural justice in reaching a decision affecting funda-

4
mental rights does not necessarily result in its nullity'
* .

It is, clear, that in India the trend is as has been

therefore,
5
ruled in Collector of Monghyr v Keshav Prasad and State of Orissa v

Binapani Dei that the decision made in the breach of audi alteram
7
partem rule renders it void. In Trade Hills Produce v l.T.O. Justice

Mathew (as he then was) of the Kerala High Court said “All acts of

public authorities are either lawful and valid or unlawful and void.

i'hat is why viodable has never played a part in administrative law

and it is erroneous to suppose that unlawful administrative act can

have legal effect only if it called voidable and as opposed to void.

T. A.I^R. 1981, S.C. 818.~ 5. A.l.R. 1962, S .C • 1674.

2. (1981) 4 S.C.C. 113. 6. *
A.l.R. 1967, S.C 1269.
3. A.l.R. 1981, S.C. 136. 7. (1971) K.L.T. 646 at 654.
4. Administrative Action in violation of Natural Justice Affecting
fundamental rights. (1979) 2 S.C.C. Journal Section p.1-8.
 761

If a void act is not challenged in law it would have legal effect as

a valid act.

That the orders made in breach of natural justice are rendered

void have been held in the following cases: Suresh v State of M.P.^/

Jwala Prasad v State of Rajasthan^, shiela Devi v Executive Engineer/

President/ The Common Wealth Cooperative Society v Joint Registrar/

• . . 4
Cooperative Societies t Jabalpur Electric Supply Co. v M • P • Elec tricity
5, Serajuddin & Co. v Orissa67
Supply Co. v M.P. Electricity Board1
4
3
2 9
8
,
7 Q
Laxmidhar v Orissa ,Karunakaran v Director of Public .Instruction ,
Q
Dhakeshwari Cotton Mills Ltd. v Commissioner of Income Tax , Shivaji
Naghubhai v Union of India1017
,11 Mafatlal Naraindas Barot v division
16
15
14
13
12

11 12
Controller State Transport , [Link] Sharma v State of U.P.’ ,A.N.
13 14
Shukla v State of M-P. , Kashi Ram v State of Bihar , Sarjoo Prasad

v General Manager 15 , Virendra Kumar v Union of India16

1 , State of U.P.
17
v Dharminder Prasad Seth

The Rajasthan High Court has held in Major Sindhu Hardeep Singh
v Union of India18 that disciplinary action proposed to be taken would

be void as it was in a clear violation of fair play and natural justice.

1. A.l.R. 1970, M.P. 154.

2. A.l.R. 1973, Raj. 187.
3. A.l.R. 1971, rtll. 343.
4. A.l.R. 1971, Ker. 34.
5. A.l.R. 1974, Cal. 309.
6. A.l.R. 1974, Cal. 296.
7. A.l.R. 1974, Or. 127.
8. (1966) K.L.T. 290.
9. A.l.R. 1955, S.C’ 65.
10. A.l.R. 1960, S.C. 606.
11. A.l.R. 1966, S.C’1364.
12. A.l.R. 1962, S.C.1334.
13. A.l.R. 1979, S.C.1923.
14. A.l.R. 1978, Pat. 265.
15. A.l.R. 1989, S.C.1481.
16. *
A.l.R. 1981, S.C 41.
17. A.L. 1989, S.C. 997 at 1005 and 1010.
18. 1990, (60 F.L.R.)p.5 at 6.
 762

Our Supreme Court has set aside the order of the 'Commissioner'

Varanasi division setting aside the order of Municipal Board Jaunpur

appointing the appellant as tax Inspector in Shridhar v Nagar Palika,

Jaunpur. Mr. Justice K.N. Singh observed, "The order of appointment

conferred a vested right in the appellant to hold the post of tax

Inspector, that right could not be taken away without affording oppor­

tunity of hearing to him. Any order passed in violation of principles

of natural justice is rendered void"The other cases holding the

same are: B.R. Singh v Union of lndia\ Bhabagrahi Panigrahi v Union

R
of India , Bhupindra Kumar Singhal v P.R. Mehta?

In M/s Gandhi & Co. v the State of Maharashtra0 petitioner from

grant of book maker licence for three years relying on solitary state­

ment of employee and not on the examination of polic officer and other

employees violated rules of natural justice.

Thus, the failure to observe the audi alteram partem rule

renders the decision void. When the decision is set aside the party

affected is given an opportunity to state his case and the authorit­

ies on the other hand get an opportunity to reconsider the case on

the basis of the evidence provided by the individual concerned. Dr.

S.N. Jain says "In the matter of failure of audi alteram partem the

courts have adopted any one of the three alternatives as the justice

of the situation demanded simply quashing the order, not quashing the

order but maintaining the statusquo and directing the government to

1 1990, (60 F.L.R.) 386 S .C

2 Ibid at 390.
3 A.I.R. 1990, S.C. p.l
4 A.I.R. 1990, Ori. 42.
5 A.I.R. 1990, Guj. 48.
6 A.I.R. 1990, Bom. 218
 763

give a hearing, and finally not only quashing but prohibiting the

government from reconsidering the matter".12

Really speaking the nature and quality of administrative decis­

ions do not remain the same in each and every case. That is why, a

clear cut direction by the court is not coming, though the balance

of convenience is in favour of rendering decisions, taken in violat­

ion of the audi alteram partem rule, void. Yet some times, we hear

the decisions of the courts rendering such decisions as voidable only,

"The difficulty of picking a logical path between ’void1 and

'voidable' in the administrative field suggests that this distinction

should not be decisive for the reviewing court, indeed, this bald

classification may be misleading in that it leaves out of account the

discretionary nature of the many of the court's review powers. The

distinction may possibly be more relevant to colleteral proceeding,

where a court without full powers of review may have to give effect

to a statutory authority's decision, even one that is 'voidable',

2
but is not bound to enforce a decision which is a nullity".

Dr. [Link] says, "Void and voidable are vague and imprecise

words. When a decision is void and when it is voidable is a highly

mystifying part of the law. No articulated tests have been developed

to Airnish an answer. There is no unanimity on the question whether

failure to observe audi alteram partem makes the decision void or

voidable".3

1. Effect of Failure of Natural Justice, The Ultimate Relief

24 (1 & 2) J.I.L.l. 13 at p.23.
2. A. . Bradely, A Failure of Justice and Defect of Police (1964)
The Cambridge Law Journal, 83 at 102-03.
3. Is an Individual Bound by an Illegal Executive order? Distinction
netweem vpod amd vpodan;e ad, omostratove prder.j J1LI 16(1964)p 322
 764

It is true that every decision, taken in violation of the rule

of audi alteram partem has not been declared void and the word void­

able has also been used but it does not mean that our judiciary is

indecisive on this matter. It has taken care to see that too much

interference by the court does not bring the administrative process

to a vanishing point.

We agree with the view that the audi alteram partem rule is

there to inject justice into the law. It is not there to make the

law ’lifeless, absurd, stulifying, selfdefeating or plainly contrary

to the common sense situation. Justice Bhagwati has rightly observed,

"Since the life of the law is not logic but experience, and even

legal propostion must, in the ultimate analysis, be tested on the

touch stone of pragmatic realism, the audi alteram partem rule could

by the experimental test, be excluded".

The question of ultimate relief to be provided to the party

affected by proceedings rendered as void because of breach of audi

alteram partem rule is also an important question. We are not in

favour of applying the concept of nullity in a mechanical way. The

judiciary does not conform to the view that always in such proceeding

the party concerned is to be relegated to his original position

because,"It may not be physically possible to restore the party to

his original position for several reasons. Ihe property under dispute

may have been already destroyed as a result of administrative action

or because of the lapse of time it is physically impossible to restore

1. Maneka Gandhi v Union of India, A.l.R. 1978, *S.C 597 at 629.

 765

the original position, e.g., when a student expelled from the college

gets the relief after a lapse of considerable time when the academic

session has already ended or is almost to end or the situation has

so fundamentaly changed that restoring the party to the original posi­

tion will create administrative crisis or paralyse administration,

adversely affecting public interest e.g., dissolving a democratically

elected body and appointing someone else to take over its administra—

ation or ordering new election. Further, the administration is not

generally debarred from taking the same action again removing the

deficiency of hearing. In such a case public interest may require that

the original position may not he restored for if it is done the party

may so act that it frustrates the ultimate adverse action after

hearing. Then the court may decline to make a consequential order on

quashing an administrative order if it is futile, or the authority

may pass immediately a fresh order under the powers given to it by

statute as the original order making a contrary order ineffective'1.

The Reverse Situation;

It is clear, therefore, that the breach of the audi alteram

partem rule renders a decision void. We do not use the term void in

its absolute sense. The logical conclusion, therefore, is that when

a party takes benefit of a void order, and subsequently that order

is withdrawn, the benefitted party loses its benefit obtained under

that void order. The pertinent question that arise in such situation

1. Effect of Failure of Natural Justice: The Ultimate Relief

[Link], 24 J.I.b.I. 13.
 766

is as to what should be the

role of audi alteram partem rule. It must
be remembered that the rule
of Jaatural justice furthers the ends of
justice, it cannot be
used to pollute it. It is applied with equal
force to both sides.

In Sameen Banu v Sta-bp . 1

of Gujarat , the director of Education
issued orders, hich were without legal authority for admission of

certain candidates to different educational institutions. Subsequently

these orders were withdrawn, and resultantly the admissions were also

cancelled, the effected candidates challenged the cancellation in

the High Court of Gujarat on the ground that no opportunity of hearing

was given to them, before withdrawing the aforesaid order. The court

held that the person who had obtained so called benefits under the

void abinitio and illegal orders, cannot invoke and press into serv­

ice the principles of audi alteram partem.

!• A.I.R. 1932, Guj. N.O.C. 111.

 767

DISCRETIONARY natural justice

It has been an established principle that violation of the

audi alteram partem rule renders the decisions void and that they

are to be set aside by the courts. However, seeing the flood of

litigation the courts have begun to realise that procedural object­

ions are often raised by unmeritorius party. The judges have often

argued that the court does not act in vain and that in many cases

a hearing would only be an useless formality, because there is noth­

ing that the person affected could say aganist the action taken. Thus,

the judges have refused to provide the relief on the ground that a

fair hearing could have made no difference to the result. The courts

are of the view that when the hearing does not make any difference

on the result of the administrative action, a hearing should not be

insisted.

However, this dicta of judiciary, is not in the tradition of

Anglo-American jurisprudence. Lord Wright declared in [Link] v

bpackman1 11 If the principles of natural justice are violated in

respect of any decision, it is, lindeed, immaterial whether the same

decision would have been arrived at in the absence of the departure

from the essential principle of justice. The decision must be decla-

red to be no decision".2 it was emphasized in Annamunthodo v Oilfields

Workers Trade Union3 by Lord Penning "It is prejudice to any man to

deny justice".4 Megarry J. observed "As every body who has anything

1. (1943) A.C. 627.

2. Ibid at 644-45.
3. 11961) A.C. 945.
4. Ibid at 956.
 768

to do with the law well knows, jthe path of the law is strewn with

examples of open and shut cases which somehow, are not; of unanswer­

able charges which, in the event, were completely answered; of in­

explicable conduct which was fully explained; of fixed and unalter­

able determinations that, by discussion, suffered a change".

lhe dicta of the same effect has been given in Fullbrook v

Berkshire Magistrate s Courts Committee^, R, v Secretary of State

for Environment ex-parte Brent BBC3. In all these cases "No difference"

argument has been rejected.

However, in Byrne v K.R. Society Ltd.^ it was ruled that the

plaintiff could have contributed nothing of value to the proceeding

of the tribunal/ therefore/ she had been allowed a right of

"If/
5
audience/ she could not have altered the result". In Queens Bench
Division in Ridge v Baldwin^ Holroyd Pearce L.J. echoed the same. He

said/ "So important is the necessity for fair hearing when inquiry is

quasi-judicial/ that/ in any case where there is any reasonable chan­

ce that it might have altered the result/ the courts must insist on

it". It is clear, from this statement that, though the learned

judge accepted the importance of giving the opportunity of hearing,

yet he linked that opportunity with the view already expressed by

Harman J. in Byrne case8 that the hearing should be given only in

such situations as will alter the result without conforming to that

1. John v Rees (1970) Ch.345 at 402.

2. (1970) 69 L.G.R. 75 at 97.
3. (1982) 2 W.L.R. 993 at 734.
4. (1958) 1 W.L.R. 762.
5. Ibid at 785.
6. (1963) 1 Q.B. 539.
7. Ibid at 571
8. Supra note 4.
 769

process. It means that if the affording of opportunity of hearing is

not going to alter the result already pronounced by the administrati­

ve agencies, in the view of the courts, Ithe courts will not insist

upon that
*

In his dissenting judgement Lord ^vershed took essentially the

same view as Holroyd Pearce L.J. had taken in the court of appeal
*

His lordship observed that only if a breach of audi alteram partem

rule resulted in a, “Real substantial miscarriage of justice11^, that

would affect the validity of an order.

This disturbing emergent trend of judicial dicta has been desc­

ribed by [Link] as a ’discretionary natural justice’? This trend

3
has been again shown in Glynn v Glynn, Kelle University. In this

case the plaintiff was alleged to have appeared naked in the area of

*
students Union causing offence to many members and employees of the

University. The Vice Chancellor was satisfied, after making private

inquiries, that plaintiff was one of the students who was a party to

that act. The Vice Chancellor exercised his disciplinary jurisdiction

in a summary fashion without affording the plaintiff an>.. opportunity

of presenting his case. He was fined ten pound and was excluded from

residence on the campus for the whole of the following session. On

his motion for an injunction to restrain the University from imple­

menting the sanctions imposed upon him without any vestige of prior

notice or hearing. Pennycuick V. • recognised that non-compliance

with the audi alteram partem rule constituted an administrative *3

1. (1964) A.C. 40 at 92.

2. 1975, Public Law 27 at 44.
3- (1971) 1 W.L.R. 487.
 770

illegality. Yet he was of the view that had the plaintiff been afford­

ed a hearing, the result would have been the same. The decision by

which he was aggrieved was "intrinsicially a perfectly proper one".1

Malloch v Aberdeen Corporation23

5 is the another important case
4
. 3
where a new prominence was given to the issue raised in Flynn’s case.

Lord Simon observed "It is unnecessary to determine whether a normal

effect of a failure to proceed in accordance with natural justice by

affording a hearing before dismissal-namely, that the proceedings

are a nullity might be obviated were it shown that such hearing could

only be a useless formalitiy either because the employer had no discr­

etion save to dismiss or that there was nothing that the eimployee
4
could say against dismissal". Lord Moris observed that in such a case
5
there can be dismissal "even for no reason at all", and that there­

fore a prior hearing, which postulates a case to be met, could be

pointless.

Clark criticises these observations and says "The facile and

uncritical acceptance of a particular value judgementof public inter­

est in this context is strongly reminiscent of the judicial attitude

evinced until recently towards both the withholding of relevant

evidence under a claim of crown privilege and failure by the crown

to pay agreed salary to its civil servant".6 The same trend was seen

in [Link]. v Byran.7 In [Link] Societies Ltd. v Tipton8,

Lord Bridge took the same view inspite of the criticism of the jurists

1. Ibid at 496H.
2. (1971) (1 W.L.R. 1578).
3. (1971) 1 W.L.R. 487.
4. (1971) 1 W.L.R. 1578 at 1600B.
5. Ibid at 1589B.
6. [Link]., p.41R.
7. (1979) 1 L.R.94
8. (1986) 2 W.L.R. 306.
 771

of the theory of the discretionary natural justice. He observed

"Breach of an agreed disciplinary procedure will not result a finding

of unfair.... a dismissal, if the adoption of a correct procedure

could have made no difference to the outcome. There may be cases,

where dismissal is inevitable, an employer could reasonably refuse to

entertain a domestic appeal because it would not affect the outcome"}

Prof. Clark says, An important question of principle is therefore

raised by recent decisions and dicta to the effect that notwithstand­

ing a failure in this aspect of natural justice, an administrative

decision thereby tainted will be upheld if the court adjudges that,

looking to the substantive merits of the case, the plaintiff has not

suffered through denial of procedural due process. The radical nature

of this new departure should not be underestimated; its effect is

that the 'right12 to notice of the case to be met and to adequate

opportunity to answer, hitherto established prospectively from the

nature of the power in question and the gravity of the impossible

sanction, is at best a presumptive entitlement that may be retrospe­

ctively negated by the strength of the case against the party denied

the fundamental elements of a fair hearing. Not only is the elemental

protection of audi alteram partem thus made dependent on the result

of the 'trial' (an absurdity as a matter of logic), but the effecti­

ve decision is made in hindsight by a court functioning nominally as

a review body and not in an appellate capacity, on the basis of specu­

lation as to what would Jhave been the outcome if the accused had

not been deprived in whole or in part of the opportunity to conduct

a defence".

1. Ibid at 316.
2. Clark [Link]., 44.
 772

He concludes that "The essential mission of the law in this

field is to win acceptance by administrators of the principle ithat

to hear a man before he is penalised is an integral part of the deci­

sion making process. A measure of the importance of resisting the

incipient abnegation by the courts of the firm rule that breach of

audi alteram partem invalidates/ is that if it gains ground the miss­

ion of the law is doomed to fail to the detriment of all Effective

enforcement is however, ultimately the critical issue. There must be

no sliding scale of due process embodying the criterion of the appea­

rance of guilt or innocence, for such is the antithesis of fairness.

Suggestions to the contrary in Mallcch must be countered by clear

reaffirmation of the principle enunicated by Lord Wright in Spackman

1 2
v General Medical Council " .

Prof. Wade says, "Judges are naturally inclined to use their

discretion when a plea of breach of natural justice is used as the

last refuge of a claimant with a bad case. In the case of a discret­

ionary adminisgrative decision, such as the dismissal of a teacher

or the expulsion of a student, hearing his case will often soften

the heart of the authority and alter their decision, even though it

is clear from the outset that punitive action would be justified.

This is the essence of good and considerate administration, and the

3
law should take care to preserve it •

The judiciary should not withhold the remedies in such case.

If administrative convenience is made the touch stone of the void­

ness, the society itself will be put at inconvenience. If those, who

1. (1943) A.C. 627 at 644-45.

2. Clark,[Link]., at 60-61.
3. [Link]., p.535.
 773

are to be dismissed from the services without getting an opportunity

of hearing in the name of administrative conveniences, and inaccord­

ance with the dicta that the hearing would make no difference to the

result already declared by the administrative agencies, are thrown

out of office; they will be inclined to adopt the corrupt and condem-

ned means to earn money to sustain their families. They may commit

robberyz dacoity and may adopt other antisocial means and this will

create a very inconvenient situation for the society. If their wives

are forced to adopt immoral means to maintain themselves9 this will

also be a grave menance to the society. The courts must take into

account this social justice aspect before refusing the remedies sought

for. The judicial discretion in withholding remedies should be very

carefully exercised. The judiciary must not abdicate its role in

preserving the social morality in the society. It is heartening to

note that the Indian judiciary is far ahead from the English judicial

system in this field. In Englandthe courts maintain that in certain

situations the rule of audi alteram partem can be dispensed with.

However/ in India it has been held that dispensation with the rule is

not a good thing and that if the emergency situations so demands the

deficiency at the predecisional stage must be compensated by the

sufficiency at the postdecisional stage. However/ our judiciary has

cautioned that compliance with the rules of audi alteram partem is

a must and is should not be a practice to denY predecisional hearing

at the pretex of Jthe postdecisional one. Justice Bhagwati, ..thus,

says, “Some times an attempt is made by lawyers appearing on behalf

of the government to contend that even where prior hearing is not

 774

given the exercise of i-bo

P wer does not become bad and it can be
cured by postdecisional hPaHn„ » .
P
* But this is a gross misunddrstand-
ing of the decision of th a 1
Preme Court in bill’s case and Maneka
Gandhi’s case^".

fore, suggested that the sooner we say goodbye

to the idea of discretionary i •
y natural justice, the better would be
the prospect of the application nF i , . . .
pp ation of the rule of audi alteram partem.

1. A.I.R. 1978, S.C. 851.

2. A.I.R. 1978, S.C
* 597.
3. Foreward to I.P. Massey’s Administrative Law, 1985,p. IV.
 775

DISCRETION TO DISOBEY THE ILLEGAL ORDER

It is a moral and legal duty to obey the law, even if one

disagrees with it. However, there are such situation as will justify

the disobediance of law on the moral basis. Our Supreme Court in

Nawab Khan Abbas Khan v State of Gujarat^ did not .lay down as general

proposition of law that an individual can disregard with impugnity

every illegal order. However, the court held that the appelant was

entitled to disregard the order and no prosecution could be launched

against him as the "order charged with the duty of complying with

natural justice in the exercise of the power before restricting the

fundamental right of a citizen is void and no legal efficacy".

The court, nevertheless, emphasized that the law and order will

be in jeopardy, if the doctrine of discretion to disobey invalid

order were to prevail. Thus, the law and order is the important factor

which prevails in the path of a free discretion to disobey the illeg­

al executive order. Dr. S.N. Jain says, "The law and order problem

is one aspect of the problem. The other has a bearing on individual

liberty.- It is the profound duty of the courts to guard the indivi­

dual against illegal order of the government. Taking the view that

individual is justified in ignoring illegal orders will not encourage

persons to disregard governmental orders for in ignoring them the

individual runs the risk of suffering the consequences in case it is

latter determined by a court that the order was not illegal. The

1. 1. A.I.R. 1974, S.C’ 147.

2. Ibid at 1479-80.
 776

court should have disposed of the question in issue on the simple

ground of policy considerations. However, (Lit makes the issue unnece­

ssarily 'thorny' and the court completely ignores the Indian Statutory

Provisions which would have been successful in applying the policy

1
consideration11.

Prof. Lloyd relates the discretion to disobey with the doctrine

of negative freedom. He says, "This question must be considered from

two different aspectso First, in its exteeme form as a right of

rebellion against an unjust regime, and, secondly as a right of civil

disobedience to particular policy of laws within a society".

The demonstrations, sit - ins and other disruptive practices are

aimed sometimes at deflecting or influencing government policies, the

Rasta Roko agitation, the student agitation taking an ugly turn inform

of seif immolation, are the means which are adopted by those who are

of the view that it is good for them to disobey the order of the

government that is manifestly illegal.

Some natural lawyers have sought to justify such activities as

being lawful, possibly even when violence is deployed, if the activi­

ties or the law which is the subject of attack is demonstely contrary

to natural law. The modern jurists are also of the view that in certain

circumstance violation of law should be treated as lawful, or atleast

should not expose the preperators to legal prosecution. Dwarkin, thus,

argues that3 if we are to take fundamental human rights seriously, we

must be ready to acknowledge that, public protest in their defence,

17 16, J.I.L.I. 1974,3227

2. Introduction to Jurisprudence, 1985,p.46.
3. Taking Rights Seriously: (1977) Ch.7 and 8.
 777

even if involving acts contrary to law, such as rioting, should be

regarded as justifiable and therefore not answerable to legal process.

In his Obligation and Obedience' Macguigan puts the case for

civil disobediance on moral grounds. He argued that it may be justi­

fied if it take the form of a public nonviolent act of illegality

performed for a moral purpose. And for this even violence may be

justified, if it is proportionate response to serious injustice. He,

however, doubts whether a coersive element can ever be an apt reacti­

on to an unjust law within a fram work of democratic Government.

*
1 Finnis is of the view that the good citizen may be morally 11 required

to conform to an unjust stipulation to the extent necessary to avoid

weakening the law, the legal system.... as a whole’*. However, he

argues that since the ruler should repeal such a law rather than

enforce it, he has no right to expect conformity to it.

The next important question arises in this context is the enfo -

rcement of unjust law by judges. Should judges enforce the unjust law

or should they simply disobey it. This question depends upon many

factors, the political context, the independence of judges, the

context of rule of law in society, the form of the government, etc.

’’Failure to implement an unjust law in such circumstances might well

lead to unpleasant consequences for him but he would .hot be violat­

ing a moral principle. His assumed obligation of fidelity to law is

over ridden by the circumstances of his appointment.... Even within

a democratic system there are circumstances where a judge, or other

1. Political and Legal Obligations (Nomos XII) 1970, Pennock and

Chapman edited.
2. Natural Law and Natural Right,1980,p.361—62•
 778

official, may be said not to be in violation of his duties to uphold

the law when he refuses to implement an unjust law. Just as a soldie­

r’s duty to obey commands does not extend to order to shoot

unarmed civilians, so a judge’s obligation to implement the law

has moral limits; what these are will depend on the content of the

law, the social and political context and the consequences of apply-
ing it and not applying it”.12

John Kawls is of the view that in democratic set up the theory

of constitutional civil disobedience has an important role to play

in disobeying the unjust orders. He justifies the conscientious

refusal of compliance with a more or less direct legal injunction of

administrative order. ”It is refusal since an order is addressed to

us and given the nature of the situation, whether we accede to it

is known to the authorities. Typical examples are the refusal of

the early Christians to perform certain acts of piety prescribed

by the pagan state, and the refusal of the Jehvah’s Witnesses to

salute the flag. Other examples are the unwillingness of a pacifist

to serve in the armed forces, or of a soldier to obey an order that

he thinks is manifestly contrary to the moral law as it applies to

war, or again, in rhoreau’s case, the refusal to pay a tax on the

grounds that to do so Jwould make him an agent of grave injustice to

2
another.

1. Lloyd, [Link]., pp.10-102.

2. A Theory of Justice, 1985, 368-69.
 779

Our Supreme Court has also recognized this right in Bijoe

Emmanuel v Kerala. In that case some children belonging to Jehovah's

witnesses did not sing the national anthem because it was against

the Tenents of their religious faith. Because of their denial to

sing the national anthem they were expelled from the school. They

filed a writ petition in the High Court of Kerala which rejected the

prayer of the children, on appeal, the Supreme Court justified the

action of the children of not obeying the instructions because of

their religious belief. Mr. Justice ^-hinnappa Reddy observed, 11 We do

endorse the view suggested by Davar J.'s observation that the quest­

ion is not whether a particular religious belief or practice appeals

to our reason or sentiment but whether the belief is genuinely and

conscientiously held as part of the profession or practice of religi­

on. Our personal views and reactions are irrelevant. If belief is

genuinely and conscieentiously held it attracts the protection of

Art, 25 but subject, of course, to the inhibitions contained there-

in".1
2

It is clear, therefore, that the conscientious refusal to obey

the orders is legally and moraly justified. However, if the refusal

to obey the law creates a chaotic situation care should be taken to

prevent it, though a citizen is fully justified to disobey the law

that is transparently void. Benjamin Courtis, a former judge of the

Supreme Court of United States of America, while arguing to the

senate on behalf of president Andrew Johnson, during the latters

1. A.I.R. 1987, S.C. 748.

2. Ibid at 955 •
 780

impeachment trial a century ago, said "I submit to senators that

not only is there no such rule of civil or moral duty but that it

may be and has been a high and patriotic duty of a citizen to raise

a question whether law is within the constitution of the country"

He said that it is asserted to be the civil and moral duty of all

men to obey those laws which have been passed through all the forms

of legislation until
* they shall have been decreed by judicial autho­

rity not to be binding, but he was of the

* view that it was too broad

a statement. In Straud v Bradbury "Asanitary Inspector entered to

the appellant house under the provisions of the Public Health ^ct,

1936. But the Act contained that a prior notice was a condition

Precedent to enter the house. The appellant obstructed to the entry

of the Inspector in his house. The court held that the act of the

appellant obstructing the entry of the inspector is perfectly justi-

3
fied. In India, in Kesho Ram v Delhi Administration the appellant

was prosecuted and convicted for three years for having obstructed

and assaulted certain officers of the respondent who attempted to

seize a buffalo belonging to the appellant in the discharge of their

duty to realise milk tax from him. The Delhi Municipal Corporation

Act enjoined that there must be a prior notice. The appellant was

not served the demand notice. He assaulted a sub—inspector of the

Delhi Municipal Corporation leading to a bleeding of the nose and

a fracture too.

1. Quoted in Discretion to Disobey. Kadish and Kadish-quoted by

Krishna Ayier J., [Link]. 1974, S.C. 1471, at 1476-77.
2. (1952) 2 All E.R. 76.
3. A.I.R. 1974, S.C. 1158.
 781

The Supreme Court, was of the view that the inspector was act­

ing in good faith and he had, if at all, simply errored in exercise

of his powers. But since the inspector acted improperly in the mode

of the exercise of the powers the sentence of the three years was

reduced to the period already undergone.

Had the appellant not attacked the subinspector, and would

have run away from his residence, he would have not been convicted

because the act of the subinspector was void, though he acted in a

good faith. The act of running away of the appellant would have been

perfectly justified by the court. “It seems that but for ithe overt

act resorted to by the appellant in this case, the fate of administr­

ative act in this case also would have been the same. It seems that

inspite of the overt act and consequential injury to the employee of

the corporation the administrative action in the case ought to have

been declared as abinitio void. As to the question who should be

protected-a citizen exercising his constitutional right or the offi­

cer exercising his official duties even under a mistake, the answer,

it is submitted, is not an easy one".

I.P. Massey suggests, “When the Government of India seriously

addresses itself to administrative law reforms, it is necessary that

the forms of redress against official conduct must receive priority.

There seems to be a strong resistance to any significant change, as

we saw in the law Commission’s and Administrative Reform Commission’s

1. Violation of Natural Justice: void or voidable [Link] Kumaran

Nair (1979) 3:1, The Academy Law Review, 27 at 41.
 782

attempt to instigate widespread reform which was resisted by the

government. The convas of grievance redress strategies must be spread

wide to include 'right to know' and 'discretion to disobey’ besides

other judicial and administrative techniques if the rampant corrupt­

ion and the abuse of power is to be checked effectively before the

people lose complete faith in democracy in India".

The natural lawyers have emphasized the necessity of a higher

natural law to repulse the man made invalid evil laws. "The Nurenmben

trials which sentenced Nazi Leaders to prison and execution for carry­

ing out the law of the land, is often cited as an example of the need

for an external natural law to take precedence over positivitive man,

enacted evil. Only if there is a higher law, it is argued, a natural

law, can the citizen have the right to disobey evil laws and punish
2
evil law makers".

3
Lord Denning declared in Director of Public Prosecution v Head

that the original order if void would in law be a nullity. "There

would be no need for an order to quash it. It would be automatically

null and void without more ado. The continuation orders would be
4
nullities too because you cannot continue a nullity".

Lord Denning again repeated the same in R. v Paddington

5
Valuation Officer, exparte Peachey Property Corporation Ltd.

1. Administrative Law, 1985, p.423.

2. John M. Frank, The structure of Impartiality; 1968,p.77.
3. (1959) A.C. 83.
4. Ibid at pp. 110-112.
5. (1966) 1 Q.B. 380.
 783

There are many cases in which the invalidity of the law was

raised. The important cases are: Commissioners of Customs and Excise

v Cure and Deelay Ltd.1, r. v Commissioners of Customs and Excise

ex-parte Hedges and Butler Ltd.2, Daymond v Plymouth City Council3,

Wandsworth L.B.C. v Winder4, R. v Reading Crown Core Ex-parte

Hutchinson,5 R. v Lambeth B.C. Ex-parte Ciayhope Properties Ltd.67

In all these cases, the validity was challenged with a record

success. However, as Prof. Wade has pointed out, the doctrine cannot

be carriedto the point of dispensing altogether with some legal requ­

irement such as a licence. ”If the licensing authority refuses a

licence invalidly, for example unreasonably or in breach of natural

justice, this cannot be pleaded in defence to a charge of acting

7
without a licence". The learned professor is of the view that there

can be no hard and fast rule for determining when the courts may or

may not allow collateral challenge. He suggests that the position of

the invalid orders should be the same as that of the position of the

officers and judges appointed invalidly having no legal power at all,

but their acts are held to be valid. In such cases, such officers

are called officer or judge defacto. "An officer defacto is one who

has the reputation of being the officer he assumes to be, and yet is
Q
not a good officer in point of laws".

1. (1962) 1 Q.B. 340.

2. (1986) 1 All E.R. 164.
3. (1976) A.C. 609.
4. (1985) A.C. 461.
5. (1987) 3 W.L.R. 1062.
6. (1987) The Times,17 June,1987.
7. [Link]., p.333.
8« R.v Bedford Level Corporation (1805) 6 East 356 at 368 per Lord
Chief Justice Allen Borough.
 784

The traditions of English courts are that they have been treat­

ing such acts of officer in administrative adjudicating process as

defacto one. The important cases on this point are: Margatepierco v

12
Hannam , Scadding v Lorant , Waterloo Bridge Co. v Cull , Buckley v
4 .5
Edwards , Redlridge , “The defacto doctrine has along history and

has been applied to a wide variety of officers.... Just as a wrongful

occupier of land may validly exercise an owner’s power against all

but true owner, merely on the strength of the fact of possession, so

wrongful occupier of an office may validly exercise its powers as

against members of the public merely on the strength of his authority

defacto. Both titles to land and unlawful administrative acts are

subject to a similar principle of relativity
*
. 6*

It has to be remembered that right to disobey the invalid law

or orders is not an absolute one. It enjoys a presumption of validity

unless, of course, a court of law invalidates it. Therefore, there

is no much force in the dicta of Lord Denning that such order is auto­

matically null and void without more ado. Lord Radcliffe has observed,

very rightly, 11An order, even if not made in good faith, is still an

act capable of legal consequences• It bears no brand of invalidity

upon its forehead. Unless the necessary proceedings are taken at law

to establish the cause of invalidity and to get it quashed or other

wise upset, it will remain as effective for its ostensible purpose as

7
the most impeccable of orders”.

1. (1819) 3 B & A.L.G. 266.

2. (1851) 3 H.L.C. 418 at 447.
3. (1859) 1 E & E.245
4. (1892) A.C.387
5. (1893) 15 NLR 361
6. Wade, [Link]., 337-338.
7. Smith v East Elloe Rural District Council(1956)
A.C. 736 at 769.
 785

In U.S.A, the right to disobey an illegal order is recognised

in Write v Gargia , State of West Virginia v Adams2, [Link] has

quoted a case of the California Supreme Court of U.S.A. In that case

Yick was arrested on the ground of illegal entry in the country and

was put into the jail. He escaped from the jail and his abettor in

the escape was alone caught and convicted. The Supreme Court found

that the Dy. Sheriff had no legal authority to arrest and so held

that the order of imprisonment was unlawful and that escape was no
3
offence.

Our Supreme Court has held in Maharao Sahib Shri Bhim Singhji
4
v Union of India that sub-section (1) of Section (27) of Urban Land

Ceiling and Regulation Act (33) of 1976 of the Act is invalid in as

far as it imposes a restriction on transfer of any urban or urbanised

land with a building or a portion only of such building which is

within ceiling area. Such property will therefore, be transferable

without the constraint mentioned in sub-section(1) of section 27 of

the Act".5

After this judgement of the Supreme Court a lawyers delegation

in Varanasi met the Ceiling Officer of Varanasi on 9.9.1988 to seek

the clarification as to why such an invalid act is enforced. The

Ceiling Officer accepted that the law was invalid but he pleaded his

inability to do anything . It is submitted that this act is declared

to be invalid and if the citizens disobey it, they are perfectly

justified to do that.
1. 773, U.S. 284 (1963)
2. 70, A.K.R. 2D,1425.(1960)
3. Lectures on Administrative Law,1980,p.255.
4. A.I.R. 1981,S.C. 234.
5. Ibid at 238.
 786

Dias, has linked the discretion to disobey the unjust laws with

the Inner Moral Liberty to obey or to disobey it. However, the learned

author enumerates the following disadvantages of the discretion to

disobey:

1) It may set a bad example,

2) Disobedience may inflict hardship on others,

3) It may also entail undue expense in preventing or minimis­

ing its effect.12

He concludes “For obvious reasons it is in permissive societies

that disobedience begins to assume the proportion of problems. In

them the emphasis on liberty, which inevitably inspires resistance to

duty, and coupled with this there in such societies an amelioration

of sanctions and consequent weakening of fear of them. Finally, a

permissive society fosters rapid changes in moral ideas, thus produc-

2
ing increasing tension between laws and behaviour". He futher says.

that obedience should always be the norm so that disobedience needs

to be justified. If a society is to continue, there must be law and

order and conformity with ito

The discretion to disobey the illegal order does not mean that

a citizen is entitled to disobey the law knowing that it is null and

void apparently on the face of the record. He has to take there course

to the court of lav; to get the declaration that the particular order

is null and void. It is true that inner moral sense of a citizen

may encourage him to disobey the unjust law yet he has to

1. Jurisprudence, 1976, p. 140.

2. Ibid at 431.
 787

be ready to face the consequences of not obeying the law.

Dr. [Link] Ramachandran concludes that “The citizen has a discr­

etion to obey or not to obey a law which in his judgement he deems

as void, (a) It is open to him to obey the law andgo to court for a

declaration that the law is invalid, praying for grant of damages,

if any, he has suffered, (b) It is also open to Jhim to disobey the 1

law. A mere obstruction by him to the law enforcing authority cannot

be deemed as landing him into any offece.

2) The good faith of the enforcing authority cannot make a void

law into a valid law,

3) If in his option the party chooses to disobey a void law, he

cannot claim immunity, if he commits offences in that process except

where it is a proven valid self-defence. Any excess over self defence

is punishable. It is for the court to decide this issue.

4) It is erroneous to urge that a party should wait for a judicial

pronouncement as to the invalidity of the law. It is open to him to

disobey. If really it is found that the law is void, he is fully

absolved. If it is found that the law is valid, then the party must

reap the consequences for wrongly exercising his discretion. Good faith
will be no defence for him in such cases'’.^

1. Administrative Law, 2nd Edn. 1984,p.942.

 788

REASONED DECISION

Reasoned decision has been described by the ^onoughore Scott

Commission, commonly known as Committee on Ministers Power, as the

third principle of the concept of natural justice. The Committee in

its report stated that "A party is entitled to know the reason for a
1
decesion . The Franks Commission opined that openness is taken as

one of the characteristics required of acceptable decision making.

It noted that, “Almost all witnesses have advocated giving of reason-

ed decision by tribunals". The recommendations of the Frank Commiss­

ion was implemented by the Tribunals and Inquiries Act,1958, replaced

by the Tribunals and Inquiries Act, 1971. Section 12 of the Act says

that the tribunals are required to “Furnish a statement, either

written or oral, of the reaons for the decision if requested, on or

before the given or notification of the decision, to state the

3
reasons". This is the most important of all the Franks Committees

achievements in the sphere of tribunal’s procedure.

Reasoned decision is necessary, if the administrative procedures

are to be fair and just to the citizens.. “If people are to be convin­

ced that decisions are just, they must be able to know the reaons

on which theyare based. Though many of us often are willing to accept

the judgement of a man we respect, that acceptance depends on our

sometimes knowing and approving his reasons. It is inherent in the

1. Cmd 4060, Section III, 313 p. 80,100.

2. Cmd 218 (1957) Paras, 98 and 531,p.5.
3. Section XII, of the Tribunal Inquiries Act,1971.
 789

concept of judgement that it is based on reasons, and only# if

reasons are sometimes available for independent criticism and assess­

ment, can we ever come to trust a man’s judgement at all. Reasons

must sometimes be available,or decisions will seem arbitrary/ and

will not enjoy pubiic confidence. The requirement that reasons should

always be available goes further. It recognises a party’s right to

be disappointed by an adverse decision, and the need to assuage it.

Instead of demanding simply that he trusts the judge, it allows that

the judge could conceivably be wrong, and that the disappointed party

could, without irrationality, attribute the adverse decision to an

error of judgement on the judge’s part, and therefore goes some way

to allay this suscpicion by exposing the reasons to scrutiny, and

enabling everybody concerned to assess them and feel their force

for themselves".

Reasonable or reasoned decision connotes the sense of justice.

Justice therefore is nothing but the embodied reason. Lucas, thus,

says that, "The word justify in English simply means to give reasons.

... Justice, is, thus, the condition of our being able to enter into

the reasoning behind decisions and accept them, even though adverse

as our own. Besides this internal aspects, it also, specially inlarge

imperfect societies, has an external aspect. It not only enables us

to identify with adverse decisions, but arises from our identifying

.... 2
with the victims of adverse decisions ♦

1. Lucas, On Justice, 1980, pp. 79-80.

2. Ibid at 69.
 190

y peaking the reasoned decision removes the reproach of

backward lookingness and reveals "the difference between arguments

of justice and those of expendiency, enlightened self interest and

utility”.1

Reasoned decisions are essential part of fair procedure. "Giv­

ing of reasons is one of the fundamentals of good administration”•

The Council of Tribunals stated that a requirement to provide reasons

"helps the parties to understand the decision and contributes to the

openness and fairness of the decision and the proceedings, also it

encourages a high standard of decision making and consistency of deci­

sions, it enables parties to give proper considerations to

further,
□
the possibility of taking a case to the High Courts”.

Giving reason is the means through which arbitrary power of

the decider is controlled. Galligan for example, aruges that "Reasoned

decisions is a condition for the legitimate exercise of many govern-

4
mental power that it should be rationally used.”

Prof. Prosser has described the insistence on reasoned decisions

as "Perhaps the most legitimate role of all the reviewing court”.5

Really speaking the reasoned decision serve the three important

purposes of the adjudicating process. They are: the facilitation of

appeals, fairness or the satisfaction of the parties and the improve­

ment of the quality of decision makers. "Of the three, the facilitat­

ion of appeals is the mostfrequently mentioned. Reasons are seen as

17 Ibid at 63. T
2. Breen v A.E.U. (1971) 2 Q.B. 175 at 191 per Lord Denning.
3. Annual Report for 1981-82.
4. Discretionary Justice (1971)pp. 103-106.
5. The Cases for the Poor, (1983) p.53.
 791

essential in order both to indicate to the parties whether any grounds

for appeal exist and to privide the appellate body with a record of

the tribunal s findings and/or reasoning. The provision of satisfact­

ion to the parties is also commonly referred to".

Jenevra Richardson concludes that the statutory duty to give

reasons is most commonly employed as an adjunct to the imposition by

the courts of their traditional measures of invalidity

* However/ "The

potential of reason giving has been set far higher than this by both

commentators and the judiciary themselves. In one sense, only empiri­

cal research can establish either the validity of the aspirations or

the extent to which they are currently met but, if they are to be

taken at all seriously, more thoughtmust be given to the underlying

purpose or purposes of any statutory requirement to give reasons. If

the duty to give reasons is ever effectively to encourage real ration­

ality and responsiveness in public decision-making, then it must be

expressly designated to do so.

In the first place, the relevant legislation must indicate the

precise legal consequences of a failure to provide adequate reasons.

But this alone is insufficient. The legislation must also specify in

detail the issues to be covered by the reasons in any given case.

Such developments are essential if the court's supervision of reason

2
giving is ever to fulfill its crucial role”•

1. The Duty go Give Reasons; Potential and Practices;

Public Law, 1986, 437 at 449.
2. Ibid at 469.
 792

Reasons are the "Sign post on the high way to justice'.'1 Sir

Edward Coke declared that the common law of England was 'Perfection

of reason and that 'reason is the life of the law".23

9 Sir John Powell
8
7
6
5
4

observed, "Let us consider the reason of the case. For Inothing is law

that is not reason". sir Ernest Barker told that 'The law is the

rational product of thought, deriving its ultimate sanction from the

conviction in the minds of man that it is in its essence rational’

Law is , says Aristotle, "Reason without passion"

Dennis Lloyd says, "The conclusion at which we have arrived

and it cannot be claimed to be a particularly novel one is that the

law is or should be ’rational1 process in that its judgements are

based on reasoned principles whether of general expediency, the bala­

nce of convenience, moral standards or whatever other legitimate

principles a court might have recourse to".^

D.M. Gordon points out that the weight of authority, indeed,

"Favours the rational view that if a tribunal is to form an opinion

7
it must form it on such reasons and grounds as seem good to it”.

Thus, Lord Bramwell observed, "If a man is to form an opinion he

g
must form it himself on such reasons and grounds as seem good to him".

In fact, only that law is good law which is based on reason

and rationality. Bentham, thus, wrote "Good laws are. such laws for
i 9
which good reasons can be given".

1. Reason and Logic in the Common Law, 64, The Law Quarterly Review,
468 at 484 (1948).
2. Instt. Part I, 138.
3. Coggs v Bernard, (2 LD) [Link] p.911.
4. In a Broadcast Talk March.3, 1947, Quoted in 64 L.Q.R. at p.468.
5. Politics, 1278 P.
6. 64 L.Q.R. 468 at 482. , .
7. The Observance of Law as Condition of Jurisdiction,
47, L.Q.R. 386 at 394 (1931).
8. Allcroft v London (Lord Bishop) (1891) A.C.666 at 678.
9. Bentham Works,vol.9,p.357.
 793

Giving reason is a simple but fundamental rule of administrative

law. the orderly functioning of the process of review requires that

the grounds upon which the administrative agency acted be clearly

disclosed and adequately sustained?12

Prof. Davis writes, "The requirement of findings is based upon

adequate practical reasons, the few decisions giving the requirement

a constitutional base are unnecessary and unsound".34

5 He further states

that the law thus becomes clear that "Reasons must be stated, that

the basis of action must be clear, and that even the theory underlying
the agencies action must be stated with clarity".3

Really speaking the reasons tend to encourage greater deliber­

ation, self consciousness, and consistency in the exercise of admini­

strative discretion and thereby reduces the livelihood that an agency

will act arbitrarily. "I3y promulgating rules and providing statements

of reasons, an administrative agency creates a body of standards

against which its performance can be measured by congress, the courts

4
and the public, and thereby, tends to make the law more democratic".

The statement of reasons must be sufficient to enable the parties to

know the actual basis for the agency’s decision". The statement of

reasons would diminish the importance of judicial review by enhancing

5
integrity of the administrative process". It increases the predict­

ability and consistency in administration.

1. Sec. v Chenery Corporation, 318 U.S.80 at 94.

2. Administrative Law Text, 1959, p. 306.
3. Ibid at 304. , .
4. Summary Action, Freedman, The University of Chicago Law Review,
vol. 40, 1, 1972 at p.44.
5. Environmental Defence Fund, Inc. v Ruckelseus, 439 F.2d.548 at
598.
 794

In his The path of the law1 justice Holmes writes "A body of

law is more rational amd more civilised when every rule it contains

is referred articulately and definitely to an end which it subserves,

and when the gournds for desiring that end are stated or ready to

be stated in words".

The process of reasoning is essential for the determination of

true facts as well as the meaning of the laws, whether human or divine.

In fact, even divine law is based on the reason of those "privileged

to receive the divine communication and that is why natural law was
□
closely linked with reason". When the conduct of a reasonable being

is to be judged, absence of reason will fail the purpose of judging.

The philosophical theory argues that, "Lex Alterna is the law of

reason of the cosmos and human reason is an emanation of cosmic reason.

Voluntarily or under invincible compulsion, man must obey this natural

law, since ittranscends him in every respect".4 Thus, it is dictate

of the right reason that determines the just conduct of the man.

Lord Diplock is of the view that reasons for the decisions play

a measure part in the modern adjudicating process. His lordships

writes, "In a modern democratic state which acknowledges the rule of

law and recognises limits imposed by the constitution or by legislat­

ion upon the executive powers of government, if there is made avail­

able to a court of justice material that enables it to ascertain how

and why a decision was taken to do or to refrain from doing a parti­

cular administrative act, the legal training and the human instinct
17 10 Harvard Law Review, 457 at 469.
3*. *
Laif Judges
and Justice, [Link], 1986, Dialogue Publication,

Nasik,p.44. n -r A.
4. Jullius Stone, Human Law and Human Justice, p.41.
 795

of the judges who compose the court will make them do their utmost

to set the decision aside if they are of opinion that the administra­

tive act did not fall within the limits, constitutional or statutory,

of the authority under which it purported to be made or that the

decision to do or to refrain from doing it was arbitrary or was arri­

ved at in a way that was not fair to someone affected by it. And,

being lawyers, they will find some principle of law to justify what

they do".

To give reason for a decision is indispensable and dynamic

quality of law. Reason indicates in part the hold which the law proc­

ess has over the litigant. [Link] says, "Reasoning by example in

the law is a key to many things. It indicates in part the hold which

the law process has over the litigants. They have participated in the

law making. They are bound by something they helped to make. Moreover,

the examples or analogies urged by the parties bring into the law the

common ideas of the society. The ideas have their day in court, and
2
they will have their day again".

Prof. Lloyd says, "It is rather a question of presenting a

succession of commutative reasons which severally cooperate in favour

of saying what the reasoner desires to urge".3 Reasons are valid

criteria for resolving disputes. They are outcome of the notions of

acceptability. They are not an "Instrument of mathematical precision

but possess what has been happily described as an open texture

They are not linguistic or logical rules but to a great extent rules
4
deciding".
1. 1974, The Cambridge Law Journal,233 at 241.
2. An Introduction to Legal ,Reason?g^1?t39?40
*
3. Introduction to Jurisprudence, 1985,113
4. Ibid at 1140.
 796

Reason is the very opposite of arbitrariness. It ensures that

a purely haphazard irrational and fortuitous conclusion is not reach­

ed. It protects "The courts power by giving some assurance that

private views are not masquerading behind public view”.1 Prof. Lloyd

concludes that ’‘The essence of legal reasoning is in all essentials,

save that the lawyer engages in a more searching inquiry for precise

reasons for his decisions, comparable to the process of reasoning in

ordinary life, whether concerned with ethical or practical problems.

Thus, when we decide that something is good or desirable, beautiful

or ugnly, we mean to express a judgement. ... It involves implicitly

or explicitly the idea that we can give reasons in support of that

judgement. So too, if a practical decision is called for, such as

the choice of a profession or of a candidate by a selection committee,

the choice may be purely arbitrary, but more likely will be based on

a weighing of reasons why one rather than another choice is to be

. H 2
made”.

When a decider has to take a decision, he has to base is reas­

oning on many factors. We cannot say that the purpose of legal reason­

ing is simply the logical deduction from some concepts. In the present

administrative complexities, it will be impossible to ignore the

consideration of social needs, policies and personal evaluations. If

these are not taken into account, the decisions based on mere logical

inference will be the decisions belonging to what [Link] calls

"Categories of illusory reference". The social needs, experience of

1. E.H. Levi, Law and Philosophy, Hook Edited, p.281.

3_- 69, Columbia Law
Review, 1162 at 1176-82.
 797

life, are very important in giving shape to reasoning in the adjudi

cative process. The famous lines of Jhering are very important in

this context. He says, "Life is not here to be servant of concepts,

but concepts are here to serve life. What will come to pass in future

is not postulated by logic, but by life, by trade and commerce, and

by human instinct for justice"We find the same expression in the

most striking phrases of Justice Holmes. He says, "The life of law

has been not logic but experience".2

J. Wisdom is of the view that if we claim that reasons are

confined to logical deduction and words, such a view will be distort­

ing and denigrating legal discussions. The learned author says, "It

ignores the way that rational pursuation proceeds, by setting a

problem in a certain context of life and different cases, and showing

how certain factors or reasons may be brought to bear inorder to

satisfy us that one course rather than any other or others is

3
desirable * right12
"
4
3

Again writing in Gods the learned author says, "The reasons are
4
like the legs of a chair, not the links of a chain". What he means

to say is that the process of arguments is not a chain of demonstra­

tive reasoning. If one of the links of a chain is broken the whole

will not fall, but however, if the leg of the chair is broken the

whole process of adjudication will crumble in the absence of legs,

because chair will also fall in absence of legs. Reasons, therefore,

1. (19) American Journal of Comparative Law, 215 at 226. (1971)

2. Common Law, p.l,
3. Philosophy and Psychoanalysis. 1953.p. 249.
4. Aristotalian Society, Proceedings, 1944, pp. 157—58.
 798

like legs of a chair, cannot be put in an arbitrary way. They must

be based on experience of so many factors.

Plato has remarked "The wise man speaks with authority when

he approves of his own life".1

Harry Wellington is of the view that the reasons are to take

into account the society's set of moral principles and their influence

in concrete situations."It would provide an environment conducive to

rumination, reflection and analysis."Reason, not power, would be the

2
motto over its door".

It must be remembered that reason is a democratic value and

experience of life, is an important element of the judicial reason­

ing. "In fact, there are reasons for supposing that our moral sensors

function best under the pressure of experience. Most of us did not

fully wakeup to the immorality of our most recent war until we were
3
shown pictures of Viatnamese children being scalded by American Napam".

Reasons, if based on philosophical theories, are empty vessels. The

experience of life is the structure on which the reasonings must be

based. Robert Dahl says, "After nearly 25 centuries, almost the only

people who seem to be convinced of the advantages of being ruled by

4
philospher kings are a few philosophers".

It is clear, therefore,that basing reasons mearly on logic,

where it can be deductively inferred from given premises, will not

make reason a practical and acceptable one. Rather it will put it

into straight jacket and will not enable it to meet the new needs,

1. The Republic,Book IX, in 2, The Dialogues of Plato,455.

2. 'Common Law Rules and ConstitutionalDouble Standards ; Some Notes
on Adjudication', 83 Yale L.J. 221 at 246 - 47 (1973).
3. Democracy and Distrust, John Hartley, 1980, p.57.
4. Democracy in the United States, 1976, *PP 233-34.
 799

requirements, adjustments with aspirations of a changing society.

Reasons must be referred to the explicit policy determination. Reason

must be based not on concepts, but on scientific analysis and invest­

igations of the social needs, requirements and experience. "The Common

Law", says Holmes J. in Holmes - Laski letters12

,"is not" a brooding
7
6
5
4
3

omnipresence m the sky” * We have to take into account bare reality

of life
* Concepts and philosophical attitudes may serve in giving

good reasons but mere reliance on them will not meet the requirements
*
"Concepts are", says Prof. Lloyd, "Good servants but bad masters’’.^

Lord Wright once said, "A good judge is one who is the master, not
4
the slave of the cases".

The reasons must be freed from the jurisprudence of the concept

and they must be based on the broader underlying issues or policies,

they must pay increasing attention to the effects of the decision on

commerce, industry, trade, trade relation, social tranquility, that

is to say on the society in general, thus the experience, and not the

logic, should play an important role in shaping the reason. The reas­

ons have to satisfy the public needs and the social expedience. Porter

J. observed, "The decision is a matter of outlook and impression,

5
rather than one for logical arguments".

6
Willies C.J. said in Davis v Powel "When the nature of things
7
changes the rule of law must change too". Thus, both the legislat­

ure and the courts should change rules to keep the law abreast of

change. It is there, that basis of reason becomes the needs of the

T. Ilnd p. 822.
2. Ibid
3. The Idea of Law, p. 293.
4. Legal Essays and Addresses. p
79.
*
5. Philadelphia,National Bank v Price (1937) 2 All E.R.391 at 397.
6. (1737) Willies,46.
7. Ibid at 51.
 800

society. Lord Masfield observed, “The reason and spirit of cases

make law, not the letter of particular precedents”.12

*4

We do not say that there is no place of logic in the reasoning

process. Concepts play an important role there. What we stress is

that there should not be over emphasis of the conceptual and philo­

sophical aspects in the decisional process ignoring the needs of

the society. When the judges and adjudicating officers are busy in

deciding the burning points, conceptual aspects will not help much.

lhe social effect of the reasoning become more important there.

Justice Cardozo rightly says, “Logic and history and custom have

their place. We will shape the law who conform to them when we may,
. . 2
but within bounds”. Selzinck is of the view that legality and just­

ice are the most important factors for Jthe reasoner to take into

account. If these two ideals are taken into account, it will not

bring a conflict between concept and social conditions. Facts of

society and values of concepts cannot be separated. He calls them

’universal values’. Reasoner must know that law cannot be separated

4
from its social context”.

Reasons are implicit in the concept of a hearing and the oppor­

tunity of hearing, coupled with the reasoned decision, ensure that

the adjudicating processes are not empty jestures. “The concept of

basic fair play requires that the parties and reviewing courts have

disclosed to them that which is to be reviewed. . • Keasons are, of

1. Fisher v Prince (1762) 3, Bu 1363.

2. Nature of Judicial Process; p.67.
3.
-(1961) 6 Natural Law Forum, 84 at 93.
4. Review of Fuller Anatomy of the Law, 83 Harvard L.R. 1474
at 1478.
 801

course indispensable corner stones of every .... decision".1* Thus,

we see that unless reasons are stated the courts will be charged

with the allegation that they have blindly endorsed the mistake of

law committed by the administrative agencies. The statement of reason

would enable the court to be in a better position to evaluate the

matter put before it.

Generally speaking, at common law, there is no universal rule

or duty to state reason for ljudicial and administrative decisions.

There are some judicial decisions to the effect that a statement of

reasons is not required by the rules of natural justice. These are

the important cases in which such dicta has been laid down. Fontaine
2
v Ghastarton , R. v Gaming Board for Great Britain exparte Benaim
• 3 4 5
and Khaida , Payne v Lord Harris , R. v Briston C.C.. exparte Pearce,
R. v Secretary of State for Social Services exparte Connoly8, Public
7
Service Board of New South Wales v Osmond .

Prof, de Smith also says "There is no general rule of English

law that reasons must be given for administrative (or indeed judicial)
decisions".8 He has cited the following cases in support of his
9 10
contention. Cannock Chase D.C. v Kelley , Mcinnes v onslow-fane ,
.11
ReGlendenning Motorways Inc. and Royal Transportation Ltd. ,
12
Macdonald v R. .

1. United States of America v John Douglas Broyles, 423F. 2nd 1299

at 1304 (1970).
2. (1968) 112, Solicitor General, 690 (The Times, 20 Aug., 1968).
3. (1970) 2 Q.B. 417 at 431.
4. (1981) 1 W.L.R. 754.
5. (1984) 83 L.G.R. 711.
6. (1986) 1 W.L.R. 421 at 431.
7. (1986) 60 A.L.J.R.209. 11. (1976) 59 D.L.R. (3D) 89.
8. [Link]., 148. 12. (1977) 2 S.C.R. 665.
9. (1978) 1 W.L.R. p.l.
10. (1978) 1 W.L.R. 1520 at 1532-35.
 802

early English cases have laid down that an administrative

officer exercising an administrative discretion need not, unless he

chooses to do so, give reasons for the exercise of isuch discretion.

They are not required to state reasons for the conduct for which they

are authorised to peruse. This has been recognised in R. v^Bailiffs

of Ipswich , 23
R. v Bishop of London1 , R. v Archbishop of Canterbury
4
□
and Bishop of London , Rebeloved Wilkes's Charity^.

In Hayman v Governors of Rughby School5, Sir R. Malins observed,

"I think the clear result of the numerous authorities cited on both

sides in the argument of this case is that all arbitrary powers such

as the power of dismissal, by exercising their pleasure, which is

given to this governing body, may be exercised without assigning any

reason. Provided they are fairly and honestly exercised, which they

will always be presumed to have been until the contrary is shown, and

that the burden of shewing the contrary lies upon those who object

to the manner in which the power has been exercised. No reason need

be given but if they are given, the court will look at their suffi­
ciency" . 5^Lo rd Bramwell echoed the same in Sharp v Wakefield67
. The
7
same has been said in Allcroft v Lord Bishop of London. The High

Court of Australia has laid down the same in Moreau v Federal Commr
of Taxation.8 The [Link] Court has observed the same in Chicago,
9
Burlington and Quincy R. Company v Babcock. The same has been laid

1. 2 L.D. Raym 1232 (92 E.R. 313).

2. (1811) 13, E.A.S.T. 419 (104 E.R.433).
3. (1812) 15,E.A.S.T. 117 (104 E.R.789).
4. (1851) 3 M.S.C.& G.440 (42 E.R.330).
5. (1874) L.R.18, E.Q.28. g. (1906) 204, U.S. 585.
5@.Ibid at pp. 68-69. Q (1941) 3 All E’R. 338.
6. (1891) A.C. 173 at 183.
7. (1891) A.C. 666.
8. 39, C.L.R. 65.
 803

down by The House of Lords

wiub in a
in uiversidge v Anderson. 1

The other important cases are R. v Secretary of State for Home

, 2 3
Affairs, ex-parte Lees , Greene v Secretary of State for Home Affairs,

Point of Ayr Colliaries Ltd. v Lloyd-George4.

In Pure Spring Company v Minister of Net, 1 Revenue^, Mr. Justice

Thorson P. observed "a minister entrusted with discretionary

powers in a matters of public policy need not tell the court the

reasons for his action. There is no onus on him to justify his conduct

1 have not been able to fi_nd any case where the court has requi­

red, or even suggested that reasons for the exercise of an administra­

tive discretion should be given. The authorities are the other way.

I am, therefore, compelled by the weight of authority and on princi­

ples as well to Jhold that when the minister makes a determination in

his discretion.... he is not required by law to give any reason for

such determination".

However, in such cases the courts have made a difference between

grounds and reason and held that while there is no duty on the part

of the authorities to state reasons for their decisions, they have

7
not unlimited discretion and that they are bound to state the grounds.

1. (1941) 3 All E.R. 338.

2. (1941) 1 K.B. 72.
3. (1941) 2 All E.R. 388 at 396.
4. (1943) 2 All E.R. 546.
5. (1947) 1 D.L.R. 501.
6. Ibid at 539.
7. R. v Sykes, (1875) 1 Q.B.B. 52.; R. v Lancashire J.J. exparte
*
Tranter (1887) 3 E.L#R 678; R# v Thomas (1892) 1 Q.B. 426;
Flexman v Franklin C.C.(1979) 2 N.Z.L.R. 690;
Batron v Licencing Control Commission (1982) 1 N,Z,LtRe 31•
 804

Prof. Wade says, "Nevertheless there is a strong case to be

made for the giving of reasons as an essential element of administr­

ative justice. The need for it has been sharply exposed by the expan­

ding law of judicial review, now that so many decisions are liable

to be quashed or appealed against on grounds of improper purpose,

irrelevant considerations and errors of law of various kind. Unless

the citizen can discover the reasoning behind the decision, he may

be unable to tell whether it is reviewable or not, and so he may be

deprived of the protection of the law. A right to reasons is therefore

an indispensable part of a sound system of judicial review. Natural

justice may provide the best rubric for it, since the giving of reas­

ons is required by the ordinary man’s sense of justice. It is also a

healthy discipline for all who exercise power over others.11 “No

single factor has been inhibited the development of English obligation

2
upon public authorities to give reasons for their decisions11. Lord

Woolf was of the view that administrative agencies must give reasons

for. the decisions and he criticised the Home Secretary's refusal to

3
give reasons in cases of refusal of Political asylum.

It was recognised in early cases also that the authorities must

give reasons to show that they have acted lawfully and that it will

also prove that the authorities have considered the point that he

should have considered and has left the grounds that he should have
a 5
not considered. It was reaffirmed in Norton Tool Co. Ltd. v Tewson

1. [Link]., at pp. 547-48.

2. Administration under Law, (A Justice Booklet)p. 23.
3. R. v Home Secretary exparte Singh (1987) The Times, 8 June.
4. Allcroft v London (Lord Bishop) (1891) A.C. 666 at 670.
5. (1973) 1 W.L.R. 45 at 49.
 805

that the judges are normally expected to give reasons. The same has

been affirmed in Capital and Suburban Property Ltd. v Swycher1 and

in Tramountana Armandora S.A. v Atlantic Shipping Co. S.A.2

Prof, de Smith concludes "in certain other situations there may

be an implied duty to state the reasons or grounds for decision. A

person prejudicially affected by a decision must be adequately noti­

fied of the case he has to meet in order to exercise any right he

may have to make further representations or effectively to exercise

a right of appeal. Both the pervasive duty to act fairly and the

express duty to give reasons imposed upon many tribunals may persuade
the courts to develope the existing case law".3

Thus, it has been recognised that reasons for decision should

be given irrespective of the fact that there is no general duty to

give reasons and as Prof. Wade has pointed out "Although there may

be difficulties in formulating suitable rules and the arguments are

not all on one side, there is no doubt that the lack of a general

duty to give reasons is an outstanding deficiency of administrative

law".45
6

The statutory duties to state reasons was imposed by the Tribu-

5
nals and Inquiries Act, 1958. It was required that the giving reasons

is an essential element of the adjudicating process. It was provided

in that Act that reasons when given shall be taken to form the part

of the decision and accordingly to be incorporated in the record".

1. (1976) Ch.319 at 326.

2. (1978) 2 All E»R. 870 at 872.
3. [Link]., 149.
4. [Link]., 550.
5. Now Tribunals and Inquiries Act, 1971.
6. Section 12(3) of the Act.
 806

However, prior to this Act the Public Worship Regulation Act,

1874 and Town and Country Planning General Development Order 1950

also had the duty to state reasons, but this Act is for more compre­

hensive than those two Acts.

The court of appeal has observed that duty to give reasons "is

a responsible one and cannot be discharged by the' use of vague gene­

ral words. It requires proper, adequate reasons, reasons which will

not only be intelligible but which deal Jwith the substantial points

which have been raised11. The inadequacy of reasons are error on the

face of the record and it can be quashed even if there is no mandatory

duty to give reasons. Thus, Chief Justice Holt observed, "Though the

justices at sessions need not give reasons for their order, yet if

they give reason which is wrong, we must be guided by it and quash

2
the order, because it appears to us to be no reason1.1 Page J. obser-
3
ved in The King and the Inhabitants of Bedel “But if they shew their
4
reason, then it must be a good reason”. The same has been held in

Inter the Inhabitants of the Parishes of South Cadbury and Braddon

in Com. Bummerset.4
*6

In Padfield v Minister of Agriculture6 the House of Lords obser­

ved that the court may infer that he has no good reason and that he

is not lising the powers given by Parliament to carry out its intention

if the statement of reason dicloses an error of law. The reasons must

be good and adequate and not ambigous. This has been held in Repoyser
1. Elliot v Southwark L.B.C.(1976) 1 W.L.R. 499.
2. Dominus Rex v The Inhabitants of Audley, 2 Salked, 527(91 E.R-448)
3. 95 E.R. 245.
4. Ibid at 246. .
5. 2 Salked 608 (91 E.R. 515)
6. (1968) A.C.997 at 1032-33, 1061-62,1053-54.
 807

and Mills , R. v Industrial Injuries Commissioner exparte

Arbitration111
2
Howarth , Elliott v University Computing Co.3, Dagg v Lovett!

It has been held in Minister of National Revenue v Wrights

5 6
Canadian Ropes Ltd., and Pure Spring Co. v Minister of Net’l Revenue ,

that Minister by keeping silent cannot defeat the tax payers appeal.

The courts are always entitled to examine the facts which are insuffi­

cient in law to support the determination of the minister.

It has been emphasized again and again that reasons given under

rule must be as full and as adequate as reasons given under the Act,
7
though if they are clear and adequate they may be briefly stated. It

has been held in the following cases that reasons for the decisions

must be given and that they must be adequate and not vague. R. v Norh-
g
emberland Compensation Appeal Tribunal 1952 , Pepsy v London Transport
9 10
Executive , Bone v Mental Health Review Tribunal , Barnham v Secretary
11
for the State for Environment , Reading B.C. v Secretary of the State
for the Environment12, London Residency Body v '-‘■'he Secretary for the

„ . ,13
Environment .

1. (1964) 2 Q.B. 467.

2. (1968) 4 Kir. 621.
3. (1977) I.C.R. 147.
4. (1980) EST G.A.Z. D.I.G. 27.
5. (1947) A.C. 109 at 113.
6. (1947) 1 D.L.R. 501 at 552-54.
7. Westminister C.C. v Great Portland Estates P.L.C.(1985) A.C.661.
8. (1952) 1 K.B. 338.
9. (1975) 1 W.L.R. 234.
10. (1985) 3 All *E.R 119.
11. (1985) 52 P.& C.R. 10.
12. (1985) 52 P.& C.R. 385.
13. (1988) The Times, 30 Mar.
 808

In the lexendar Machinery (Dudley) Ltd. v Crabtree‘S, Sir John

Donaldson has observed, "In the absence of reasons it is impossible

to determine whether or not there has been an error of law. Failure

to give reasons therefore, amounts to a denial of justice and is it-

self an error of law". Chief Justice Lord Lane has held that a

statement of reasons must show that the tribunal has considered the

point as issue between the parties and must indicate the evidence

for its conclusion. It has been held in Levi v Marrable and [Link].

that where there is a conflict of evidence, the tribunal ought to

state its findings.

It is, clear, therefore, that the elastic rules of natural just­

ice include the giving of full and proper reasons for a decision.

Many countries belonging to Anglo-American tradition and also belong­

ing to continental judicial system adhere to the principle that adju­

dicating process must give importance to the reasoned decision. The

Canadian courts have insisted that giving of reason must be read into

a requirement to give fair hearing. The courts have insisted in ReBasu

and Bettschen5 and in Recommercial [Link] v Highway Traffic Board6

that reason must be given for the decision.

The Australian High Courts has also lheld the same in E. [Link].
7 ... 8
v Courtice and in T rivett v Nivision.

In German law it is the general rule that the individual may

obtain a statement of reason from the administration at some stage

1. (1974) I.C.R. 120.

3
* R^v Immigration Appeal Tribunal Exparte Khan (Mahmud) 1983 Q.B.790.

4. (1984) I.C.R. 583

5. (1975) 59 D.L.R.(3rd) 392 at 400.
6. (1951) 1 D.L.R. 342 at 348.
7. (1949) 8 C7L.R. 657 at 663.
8. (1976) 1 N.S.W.L.R. 312 at 321.
 809

in the proceeding. Section 73(3) of the 1960 Act makes it a statutory

duty of the authority to give the individual such a statement. "Clarity

legal certainty, openness and trustworthiness are important values

which assure acceptability of the administrative decisions".1

lhe French system is less formal, there is no obligation upon

an authority to give such a statement to the individual. However, if

the court asks for a statement, it. should be given and court is prepa­

red to draw its own conclusion from refusal to give the statement or

**
from an unreasoned or insufficiently reasoned refusal to produce.
A

refusal to give reasons is closely akin to a refusal to disclose docu­

ments, and raises conflicts of power which are not suceptible of

of
formal resolution. Within those limits, however, universality/the

requiremengs to give reasons constitutes an important protection for

2
**
.
the individual

The Conseil d,Etat has held that it can also review the reasons

given by authorities. The scope of such review was first restricted

one. It was held so in Ministre de 1’education nationale [Link]

technique prive,de dunkerque. April 25,1980. This case law was rever­

sed in 1985 by commune de bouguenais, (June 19,1985, [Link] 194).

The Conseil d,Etat reviewed the validity of the reasons given by

prfet of Aveyron in South West France in Ministre DeLEducation
Nationale c. Lycee Technique Prive Saint Joseph A Rodez.3 It held

1. Basic Principles of German Administrative Law 405 at 415.

Eberhard Schmidt [Link] Constitutional Law, 1989,
[Link] edited.
and German Administrative Law, with
2. Rogerwarren Evans, French
some English Comparisons; International and Comparative Law
Quarterly, vol. 14, 1965, 1104 at 1118.
3. (Nov. 11, 1987).
 810

that none of the reasons given by the prefet was valid, and remarked

that s ch a reason showed a manifest error in the evaluation of the

relevant facts (Erreur manifests d,appreciation).

This decision can be seen as a byproduct of the duty to give

reasons for decisions such as those that were in question. The admin­

istration is bound by the reasons stated in the original decision;

the protection of the citizens' rights correspond to the morality of

the administration's actions. Finally, this decision shows how the

scope of judicial review can be extended by combining the use of

principles and of procedural reforms".12

3

The polish system also gives importance to the reasoned decision.

The Code of Administrative Procedure enacts that "The organs of state

administration shall explain to the parties the soundness of the

reasons for their decision in order to induce the parties as far as

possible to comply with thedecision without resort to means of

2
compuls ion".

The courts in Polish system are concerned with the legality

of the procedure and not the correctness of any decision. The courts

there "Are willing to intervene in cases to ensure that certain

minimum standard have been observed in the procedure leading to the

3
taking of administrative decisions". Giving reasoned decision is

one of the minimum standards•

1. Public Law, Spring,1988 p.148-49, Recent decisions of the French

Conseil d,£tat. n , J_
2. Article 11, Part 1,2 of the Code of Administrative. Procedure,
Act. 1960. . . _ T .
3. Colin T Reid, The Approach to Administrative Law in Poland and the
United Kingdom,vol. 36, The International and Comparative Law
quarterly, 1987, 817 at 825.
 811

frican adjudicating process also recognises the importance

of the reasoned decision. One of the tribals Barotse calls the

reasons which guides the judge of the Folk 1’ale as "Wisdom" and

.
*
'Sense Maxgluckman says, "Just as when I asked them why they thou­

ght the final judgement that the dog in the manger headman must be

generous or he would be discharged, was a good judgement. They said

because the judge decided by 'truth1 and 'reason' and 'wisdom'

Thus, we see that reasoned decision have been given importance

in all over the world where the adjudicating process affects the

rights of the citizens. The Administrative Procedure Act of 1946 of

United States of America requires that reasons of the decision should

3
be given. The Australian Federal Law has extended the right to

reasons to the administrative decisions. The administrative decisions

4 5
(judicial review Act,1977) and the Administrative Law Act, 1978

require reasons in writing to be given on request. The European

Economic Community has required that the council and the commission

are required to state the reasons for their regulations, directives

and decisions.6 It has been held in Rewe v Haptzollantkiel7 that a

regulation is invalid if reasons are not given.

The International Commission of Jurists in its 1962 meetings in

Rio has acknowledged that in nearly every country one type of action

of administrative agencies and executive officials is in the nature

of adjudication, and the decisions made are similar to judicial deci—

“The Judicial Process among the Barotse of Northern Rodesia, 1955,

Chapter III, Max Gluckman.
2. Natural Justice in Africa,Natural Law Forum,1964,vol.9.25 at 37.
3. Section 8(B)
4. Section 13.
5. Section 8.
6. Treaty of Rome,Article 190.
7. (1982) 1 C.M.L.R. 449.
 812

sj-ons. Whatever variations in procedure may be appropriate to this

kind of executive action, there are certain fundamental principles

that must be followed, if the rule of law is to be preserved. One of

the fundamental principles recommended by the Commission is, "Adequ­

ate notice to them of the decision and of the reasons therefor".1*

D<J. Harris says, "Thus the court, showing itself acutely aware

of the interests of the individual in the case before it, has estab­

lished a procedure which will, in future cases involving individual

applicants, reduce the inequality of the disputing parties before

the court to one of a largely formal character. That this has been

done in the context of contentioous proceedings is an achievement

, 2
of some importance for international law".

The Strasbourg Conference on the individual and state concluded

When an administrative orCer is made which affects or is likely to

affect the rights of the individual, the reasons for that order should
□
be fully stated. The Supreme Court of Cyprus observed in Medcon
Construction v Cyprus4 that, "One cannot conceivably speak of an

effective decision of the council of minister having been validly

taken unless the written record thereof existed The whole

administrative process leading to the decision to award the contract

to the interested party was fatally defective, due to the absence of

5
a duly taken and reasoned decision of the minister of finance'.

1. Natural Justice,Due Process and the New International Covenants

on Human Rights: Prospectus, [Link] 274 ^n312- .
2. European Courts of Human Right, (1961) (10) I.C.L.Q.616 at 619.
3. Conclusion 13.
47 (1968, 9 [Link]-967-977) per -‘■'riantafy lides.
4. I.C.J. 1969, p
5. Ibid at 48.
 812

sions. Whatever variations „

s rn procedure may be appropriate to this
kind of executive action, there are certain fundamental principles

that must be followed, if the rule of law is to be preserved. One of

the fundamental principles recommended by the Commission is, "Adequ­

ate notice to them of the decision and of the reasons therefor".12

D.J. Harris says, "Thus the court, showing itself acutely aware

of the interests of the individual in the case before it, has estab­

lished a procedure which will, in future cases involving individual

applicants, reduce the inequality of the disputing parties before

the court to one of a largely formal character. That this has been

done in the context of contentioous proceedings is an achievement

• 2
of some importance for international law".

The Strasbourg Conference on the individual and state concluded

'When an administrative orier is made which affects or is likely to

affect the rights of the individual, the reasons for that order should
be fully stated'.'3* The Supreme Court of Cyprus observed in Medcon

Construction v Cyprus^ that, "One cannot conceivably speak of an

effective decision of the council of minister having been validly

taken unless the written record thereof existed The whole

administrative process leading to the decision to award the contract

to the interested party was fatally defective, due to the absence of

5
a duly taken and reasoned decision of the minister of finance".

1. Natural [Link] Process and the New International Covenants

r_T p • +- e? • prfjQOpc tus • l?r an k C • N ewman, 2l.c.L.0.616
on Human “i^ts s Prospectus,
/ 4 at 312. at 619.
2. European Courts or Human nxyuu,
4
* i?c?j?St969,13p. 47 (1968,9 J.S.C .pp-967-977) per ^riantafy lides

5. Ibid at 48.
 813

The Supreme Court of Japan has said, "The law often requires

that a statement of reasons be attached to an administrative decision

.... any kind of statement of reasons would not satisfy this require­

ment the statement must be sufficient in the eyes of the law, courts

can annul administrative decisions on the ground that the statement

of reasons was insufficient".12

3 "It is often a requirement of the law

that when an Executive Officer, having the power to do so, makes

an administrative decision, he should attach to it a statement of

his reasons for arriving at his conclusion. There had been differing

views expressed by the lower courts in Japan as to the extent to

which such a statement of reasons should be detailed and as to what

should be done in thecase of decisions which are not supported by an

adequate statement of reasons. The decision of the Supreme Court of

Japan annulled an administrative decision on the ground that the

2
statement of reasons was insufficient in the eyes of the law".

The Federal Supreme Court of Malaysia has emphasized the import­

ance of a reasoned decision. Mr. Justice Ismail Khan, thus, observed,

3
“The advantage of a speaking judgement needs no emphasis11. Mr.

Justice ung Hock thye observed, "It is not enough to lise the words

of Shelley, ’I cannot argue, I can only feel', as the foundation of

a judgement. Except in the most straight forward type of cases, where

the fact clearly established all the necessary ingredients of an

offence, it is the duty of the Magistrate to state atleast what were

his findings of fact”.4 The Supreme Court emphasized the same in

1. Case of Saiko Saibansho Minji Hanrei-shun, I.C.J. vol.7, 1966

2. I.C.J. vol. 7,1966, p.133.
V Public Prosecutor (1959) M.L.J.193, 194
3. balasingham
Public Prosecutor (1964) M.L.J. 7.
4. Augustine v
 814

Hashim v Public Prosecutor.1

hus, we see that the reasoned decision has got an universal

character. Michael Akehurst says, "What is needed is an extension of

Section 12 of the Tribunals and Inquiries Act to cover all judicial

and administrative decisions. Although certain exceptions might be

necessary, the general principle cannot be regarded as unworkable,

since it is accepted to varying degrees in the administrative laws

of France, West Germany, The United States, Israel, Cyprus and the

*
European Communities Arguments against the acceptance of such a

principle are not very persuasive. Thus, witnesses might not relish

being told by a tribunal why their evidence has not been believed,

but this happens every day in ordinary courts without any serious

trouble resulting. Drafting a statement of reasons might make slight

inroads on a tribunal’s time, and might lead to a slight increase in

litigation challenging the tribunal’s decision; but these inconveni­

ences would be more than offset by increased fairness in judicial

and administrative processes, and by increased public confidence in

2
the fairness of such processes”.

Reasoned decision exposes the decisional process to public scru­

tiny and criticism. It also engender public confidence and public

satisfaction in the adjudicating process. Even though, a party affect­

ed, may get a perfectly correct judgement, yet if that is without

reason he is not satisfied. He is "left with the real grievance that

3
he was not told why the decision has been made". Jackob J. observed,

k Statements'of'J Reasons for Judicial and Admins native Decisions,

*
33, M.L.R. 1970, 154J <1964) 2 Q.B. 467 at 478,
3. In Repoyser and Mills al
 815

■•He is surely interested in knowing why, and every human consideration

along with all thoughts of elemental fairness and justice suggests

that, when he asks, he be told why? Perhaps the statement of reason

will disclose correctible defficiencies and be of service in guiding

his future conduct, perhaps it will disclose that the non- retention

was due to the factors unrelated to his professional or class room

performance .... and perhaps the very requirement that reasons be

stated would.... serve as a significant discipline on the board it­

self against arbitrary or abusive exercise of its broad discretion­

ary powers".1

Geoffrey A. I'lick gives the following advantages of the reasoned

decision:

1) i’he requirement of a reasoned opinion provides considerable

assurance that the decision will be better as a result of its being

properly thought out;

2) Reasons will enable a person who has a right of appeal to deter­

mine whether he has good grounds for an appeal and will inform him of

the case he will .have to meet if he does decide to appeal;

3) Reasons will make a tribunal more amenable to the supervisory

jurisdiction of the courts. It will inform a person why a decision

has been made and will make manifest any error law,

4) Reasoned opinions will encourage public confidence in the admin­

istrative process;
5) Reasons act as a check on the exercise of discretion and expert­

ise and will ensure that a tribunal has performed its functions of

'1. Donaldson v~^ard of Education of North Wildwood, 65,N.J.236

at 245. indications and the Duty to give Reasons-
2. Administrative Adjuaicaux 1Q7R r> u =.+- on n m
A Search for Criteria, Public Law, 1978, p.1.6 at pp. 17-18.
 816

considering relevant fari-nro

tors and will prevent arbitrary actions.

ned author conclude "Reasons are a valuable check on

both the exercise of formal and informal decision making. They provi­

de the means whereby a party is apprised of why a decision has been

made and they provide some guidelines to those who have to advise the

public as to the attitudes of the administrators. For too long the

courts have busied themselves with the rules as to judicial review

and it is perhaps regrettable that Professor de Smith’s text has

focussed so much attention on the role of courts. Tribunals should be

encouraged to formulate policy and rules both as guideline for their

own purposes and to encourage public confidence in the administrative

process".1

More than hundred years ago Jessel M.R. had emphasized that

discretionary power simply meant a discretion founded on sufficient

reasons. The master of Rolls made it clear that the judicial officers

must decide the case according to the weight and sufficiency of the

reasons which are brought before them. His lordship observed, that"

it is the duty of the judge fairly to investigate the objections brou

ght before him to the proposed arrangementsf and to give his opinion

upon him judicially of course, and with sufficient reasons. I never

H 2
heard that propostion doubted .

Duty to give reasons encourages a high standard of decision

making and consistency of decisions. Fairness and satisfaction of the

parties to the dispute are the two important limbs of the duty to

2*. *
Banking^Company
txparte^Merchant of London in Redurham (1881)

Ch.16 at 635.
 817

give reasons. Prof. Herbut Wechsler says "The virtue or demerit of

a judgement turns, therefore, entirely on the reasons that support

it and their adequacy to maintain any choice of value it decrees....

The critics role is the sustained, disinterested, merciless, examin­

ation of reasons that the courts advance".1

Reasoned decision, therefore, is part and parcel of the appear­

ance aspect of justice. It is only through reasons that even the

defeated party feels that justice has been done to him apparently in

a manifest way. In fact it is reason that discerns what is good and

what is bad.

In fact, the reasoned decision does not get its guidance from

God or divine elements, but the guidance, “comes from the interaction

of judicial reason and public intent of the community, the sense of

justice of a reasonable community, as perceived by its judges. The

glacial intent of the community creativity ascertained by an observa-

2
nt impractical court".

Lucas says, “A decision fails to be just if it is taken in a

way that precludes its being reasonable. Suppose a judge decides a

case after hearing all theevidence and submissions, by tossing a

coin. He had no personal interest, he had listened to both parties,

his decision procedure was of necessity impartial, but his decision

is unacceptable, because irrational. If thedecisions are to be judge­

ments, so that all can accept them as just and identify with them,
. . „ 3
they must be guided by reason not w im

2.’ 1963.p. 140.

3. Of. cit., 1980, p.75.
 818

The important recent writers on Administrative Law have clearly

stated that reasoned decisions should be read into the requirement

of the audi alteram partem rule. T. Prosser1, H.J. Friendly2,

Strass and Gellhorn3, Fredman4, D.G.Gaiiigan5, Rabin6, they all have

expressed that reasoned decision is a must for adjudicative process.

Alice Jacob is of the view, 11 In modern administrative law the

judicial insistence upon the findings and reasons in administrative

determinations marks a new emphasis in the relation between courts

and administrative agency. In India there is nothing comparable to

the Administrative Procedure Act of the United States to govern the

practice and procedure of the administrative agencies. The Indian

court must incorporate in its broad concept of natural justice of

7
giving reason. The legislature must also provide for the same.11

Dr. [Link], opines that giving of reasons by the administrators

for their action against the individual minimises chance of arbitra-

Q
riness on their part and abuse of power by them.

[Link] writes, "A specially prominent place is given to the

problem of reasons for decisions, in which justice has long been

interested. The statutory duty to give reasons, introduced for tribu­

nals and inquiries in 1958, has never been extended to administrative

decisions generally, and the common law has failed to include it as

T. Towards a’ Critical PubliE Law, (1982) 9,[Link] Law and Society,p.l

2. Some Kind of Hearing, (1975) 123,U.P.A.L.R. 1
3. Administrative Law (1979) Ch.6.
4. Crisis and Legitimacy (1978^ p^2 ; (1982) 2 Oxford J<of
5. Judicial Review and the xexu duuk
Legal Study, 2&7 at 273.
6. (1976) 44, U.C.H.I.L.R. 61 at p.78
7. 8, J.I.L.I. 1966, 54 at 62.
8. 16, J.I.L.I. 1974, 142.
 819

an element of natural justice. Yet the ordinary man's sense of fair­

play clearly demands it, and it is a healthy discipline for all who

exercise powers over others n 1

n^rs, improving the quality of decisions •

In fact, the committee of the justice all souls came down firmly

in the favour of a general statutory duty to give reasons, because

the reasons improve the quality of decisions and discipline those who

have got the powers to exercise.*2

In his'Critique of pure reason', Kant says, "All our knowledge

starts with the senses, proceeds from thence to understanding and

ends with reason, Ibeyond which there is no higher faculty to be found

in us for elaborating the matter of intuition and bringing it under

the highest unity of thought. Reason, like understanding can be emplo­

yed in a merely formal, that is, logical manner, but it is also capa­

ble of a real use, since it contains within itself the source of

certain concepts and principles, which it does not borrow either

from the senses or from the understanding. • « • The genological tree

of the concepts of reason comes from the combination of logical and

H 3
transcendental concepts •

1 . Review Article, vol. 105, The Law Quarterly Review, 375 at 376
Hnnri’of Committee of Justice-All ^ouls, Review of Administrative
2
Law in the United Kingdom, Chairman Sir Patrie Neill,, [Link]
Clarendon Press, -1198b/
qq« minted
uuoceu in x , L.Q.R. at 3/5—/o.
xu 105,
3 . 1964, p.301.
 820

THE INDIAN JUDICIAL APPROACH

The Indian Judiciary followed the English tradition that the

duty to give reason is not an integral part of natural justice. Apart

from any requirement imposed by the statutes or statutory rule,either

expressly or by necessary implication, the court was not prepared to

say that there is any general principle or any rule of natural justice

that a statutory tribunal should always and in every case give reasons

in support of its decision.

However, in the preindependence era our courts were of the view

that a statutory requirement to record reasons was for the information

of the superior officers of the government. This requirement made the

authority under a duty to articulate adequately the basis of its deci­

sion. After the independence some High Courts began to rule that the

reasoned decision must be made otherwise the decision would be an

arbitrary decision. Thus, the Calcutta High Court observed in A. S. Khan

2 ...
v A.K. Chatter ji ” It is clear law that an arbitrary or capricious

exercise of the powers is no exercise at all. If no reasons are assig­

ned, it is not possible to know or ljudge whether the order is a valid,

malafide or arbitrary order". In Gopal Chetti v Director of Public

Instruction, Mysore^ giving the reasoned decision was emphasized.

Our Supreme Court, however, began to end its vacillation with

regard to reason and stressed that it was obligatory on quasi-Judicial

authority to give reasons for their decisions. The court emphasized

„
1. ar,
cBasant v Advocate General, (1920) I.L.R.43, Mad.146 at 158.
rcnora]
2. A.I.R. 1951, Cal.90.
3. Ibid at 90.
4. A.I.R. (1955) Mys.81.
 821

this in Mustak Hussain v State of Bombay

* The court ruled in Radhey

Shyam v Madhya Pradesh that the requirement to give reasoned decision

was based on Public policy so as to allay any misgivings that might

arise m the mind of the public. The court insisted that giving reaso­

ned decisions would enable the court to exercise its powers effectively.

The other important decisions in which our Supreme Court insisted

on giving reasoned decision are: Hari Nagar Sugar Mills v Shyam Sundar
3
Jhunjhunwala , Madhya Pradesh Industries v Union of India4, Bhagat
5
Raja v Union of India , Madhya Pradesh v Seth Narshinghdas •

Our Supreme Court emphasized in Madhya Pradesh Industries v

7
Union of Inida that a decision which gives reason promotes confidence,

Mr, Justice Subbarao J, observed, "In the context of a welfare state,

administrative tribunals have come to stay. Indeed, they are the nece­

ssary concomitants of a welfare state. But arbitrariness in their

functioning destroys the concept of a welfare state itself. Self-disci­

pline and supervision exclude or at any rate minimize arbitrariness.

The least a tribunal can do is to disclose its mind. The compulsion

of disclosure guarantees consideration. The condition to give reason

introduces clarity and excludes or at any rate minimizes arbitrariness;

it gives satisfaction to the party against whom the order is made;

and it also enables an appellate or supervisory court to keep the

tribunals within bounds. A reasoned order is a desirable condition

of judicial disposal. "If tribunals can make orders without giving

1". A.l.R. (1953), S.C. 282?

2. A.l.R. (1959), S.C. 107 at 119.
3. A.l.R. 1961, S.C. 1669,1678.
4. A.l.R. 1666, S.C. 671.
5. A.l.R. 1967, S.C. 1606 at 1610.
6. 2, S.C., W.R. 844 at 848.
7. A.l.R. 1966, S.C. 671.
 822

reasons, the said oowpr

n the hands of unscrupulous or dishonest
officers may turn out- .
he a potent weapon for abuse of power. But,
if reasons for an order .
are to be given, it will be an effective
restraint on such abuse, as the order, if it discloses extraneous or

irrelevant considerations, will be subject to judicial scrutiny and

In Mahabir Prasad Santosh Kumar v State of U.P.2 the court obse­

rved, Recording of reasons in support of a decision on a disputed

claim by a quasi-judicial authority ensures that the decision is

reached according to law and not the result of caprice, whim or fancy

or reached on the grounds of policy or expediency. If the aggrieved

party is not supplied the reasons, the right to appeal is an empty

formality'1.2
3
4
5 The court ruled that the necessity to give sufficient

reasons would disclose the mental process of Jthie deciding authority

by which the conclusion was reached, in cases, where a non-judicial

4
authority exercises judicial functions.

The most important case with regard to the reasoned decision is

5
the Siemens Engineering and Manufacturing Co. v Union of India. This

is the first case in which the rule of reasoned decision was recog­

nised as a basic principle of natural justice which must inform every

quasi-judicial process. Justice Bhagwati observed in that case,"It is

now settled law that where an authority makes an order in exercise of

a quasi-judicial function, it must record its reasons in support of

1. Ibid at 674-75.
2. [Link]. 1970, S.C.
3. Ibid at 1304.
4. Travancore Rayons v Union of India,A.I.R.1971,S.C.862 at 866.
5. [Link]. 1976, S.C. 1785.
 823

the order it makes. Every quasi-judicial order must be supported by

reason.... If courts of law are to be replaced by administrative

authorities and tribunals, as indeed, in some kinds of cases, with

the proliferation of Administrative Law, they may have to be so repl­

aced, it is essential that administrative authorities and tribunals

should accord fair and proper hearing to the persons sought to be

affected by their orders and give sufficiently clear and explicit

reasons in support of the orders made by them. Then alone administr­

ative authorities and tribunals exercising quasi-judicial function

will be able to justify their existence and carry creditbility with

the people by inspiring confidence in the adjudicatory process. The

rule requring reasons to be given in support of an order is like the

principle of audi alteram partem a basic principle of natural justice

which must inform every quasi-judicial process and this rule must be

observed in its proper spirit and mere pretence of compliance with

it would not satisfy the requirement of law”.

Thus, the court has ruled that the orders that affect the rights

of the persons, in order to be good and desirable order, must be

coupled with the reasons. If reasoned decisions are not given and

the orders of the authorities seriously prejudice rights of the

aggrieved parties, that will be negation of the rule of law. The

court emphasized it again in Maneka Gandhi v Union of India that

"The pass port authorities would have to satisfy the court by placing

proper material that the giving of reasons would be clearly and indu­

bitably against the interest of the general public and if the court

1. Ibid at 1789.
2. A.I.R. 1978, S.C. 597.
 824

is not satisfied, the court-

rt may require the passport authority to
disclose the reasons, subject to any valid and lawful claim for

privilege which may be set up on behalf of the government".1 This

case "represents the high water mark of judicial insistence an adju­

dicating authorities giving reasons for their decision".2

The same learned judge reiteriated his line of argument again

in Ramana Dayaram Shetty v International Authority3(Air Port case).

Every action of the Executive Government must be informed with reason

and should be free from arbitrariness. That is the very essence of

the rule of law and its bare minimal requirement. And to the applica­

tion of this principle it makes no difference whether the exercise

of the power involves affection of some right or denial of some

privilege”.45

The court insisted upon giving reasons in Ajanta Industries v

5
Central Beard of Direct Taxes. The Calcutta High Court said the
same in ^peejay (P)Ltd. v Union of India.67
8

The other important cases in which the reasoned decisions are

7
held to be obligatory are: Sardar Gobind Rao v State of M.P. , Mahabir
8 9
Jute Mills v Shibban Lal Saxena , Rangnath v baulat Rao , O.C. Indust­
ries v Union of India1?., The Court held that 'nature of justice

requires reasons to be written for conclusions made'. Rama Verma v

11
State of Kerala Commissioner of Commercial Taxes, Madras v Ram

1. Ibid at 619.
2. [Link], [Link]., 267.
3. A.I.R. 1979, S.C. 1628. 9. A.I.R. 1975, S.C. 2146.
10. A.I.R. 1979, S.C. 1803.
4. Ibid at 1636.
11. A.I.R. 1979, S.C. 1918 para 14
5. A.I.R. 1979, S.C. 437.
6. A.I.R. 1978, Cal. 577.
7. A.I.R. 1965, S.C. 1232.
8. A.I.R. 1975, S.C. 2075.
 825

Krishna Shri Kishan Jhavar1. The Supreme Court ruled in Union of India
2
v Tulasi Ram Patel that the disciplinary authority should record in

writing the reason for its satisfaction. This is a constitutional obli­

gation and if such reason is not recorded in writing, the order dispen­

sing with the inquiry and the order of penalty following there upon

would both be void and unconstitutional. The court further observed

that it would however, be better for the disciplinary authority to

communicate to the government servant its reason for dispensing with

□
the inquiry, ihe court observed in Anil Kumar v Presiding Officer

that the minimum expectation is that the report must be reasoned one.

The other important cases in which the reasoned decisions have

been held to be a minimum requirement of natural justice are: R.P.

. . 4 5
Bhatt v Union of India , Ram Chandra v Union of India , [Link] v
6 7
New Education Institute , Harbhajan Sing v Union of India , The Lake
Q
Palace Hotel Pvt. Ltd. Udaipur v State of Rajasthan , Prakash Singh v
9 10
State of Himachal Pradesh , Omkar Singh v State of U.P. , Mohammad
11
Saifuddin v Director of Public Instruction, Calcutta , Umacharan v
12 . . 13
State of Madhya Pradesh , K.C. Roychaudhary v Union of India

The Jammu and Kashmir High court emphasized in M/s Gurudas Ram

&Co. v Union of India that giving reasoned decision is-to conform

to the principle of natural justice and fairplay. The court remarked.

1. A.I.R. 1968, S.C. 59.

2. A.I.R. 1985, S.C. 1416. 10. 1987, (54) F.L.R. Alld. 335.
3. (1985) L.A.B.I.C. 1219,S.C. 11. 1987, (54) F.L.R. Cal.S.C. 678
4. A.I.R. 1986, S.C. 1040. at 680-81.
5. A.I.R. 1986, S.C. 1173 at 1182. 12. A.I.R. 1987, S.C
* 1905.
6. A.I.R. 1986, S.C. 2105 at 2109. 13. (54) F.L.R.,Alld.H.C.801.
7. A.I.R. 1987, S.C
* 9 at 15. 14. A.L.R. 1988, J&K 42.
8. A.I.R. 1987, Raj. 8 at 10.
9. A.I.R. 1987, H.P. 54 at 55.
 826

"We are living in an age of reasons and to come to an opinion arbi­

trarily is neither justiciable by the legal ethics nor equity. The

administrative authority should never forget that any act of it is

open to judicial reveiw. Unless reasons are given by an administra­

tive authority for its decision, finding, opinion or conclusion, it

is not possible to hold as to whether it is based upon relevant facts.

The requirement of giving reasons for the act of the administrative

authority, which is extremely essential, is based upon the following

sound principles of law, equity and justice:-

(1) To eliminate arbitrariness and ensure a just, fair and reason­

able decision;

(ii) To allow an aggrieved person to make a representation against

the decision of the authority; and

(iii) To make judicial review possible so as to ensure that the auth­

ority acted objectively and not on subjective, irrelevant and extra-

neous considerations"•

2
The Patna High Court ruled in Madhusudan Paswan v State of Bihar

that when reasons are not assigned, the court is in dark and not in

a position to test as to whether considerations germane to the matter

weighed with the authority. The court insisted that reasons must be

given to satisfy a court of law that the order of the authority does

not suffer from any vice and that the authority has not acted arbitr­

arily. "Mere statement that the reasons have been carefully consider­

ed do not satisfy the requirement of law. It must be observed in its

1. Ibid at 51.
2. A.I.R. 1989, Patna 106.
 827

proper spirit".^

However, with regard to private law the Supreme Court took a

2
different view in Raipur Development Authority v Chokhamal Contractor

and held that requirement of furnishing reasons in support of decision

is a requirement of public law and it cannot be imported into the

field of private law such as law of arbitration

* Mr. Justice Venkata—

ramiah emphasized that courts should be slow in taking decisions

which will have the effect of shaking rights and titles which have

been founded through a long time upon the conviction that a particu­

lar interpretation of law is the proper and legal one and is one which

will not be departed from. His lordship observed 11 It is no doubt true

that in the decisions pertaining to Administrative Daw, this court

in some cases has observed that the giving of reasons in an administ­

rative decision is a rule of natural justice by an extension of the

prevailing rule. It would be in the interest of the world of commerce

that the said rule is confined to the area of Administrative Law

* We

do appreciate the contention, urged on behalf of- the parties who

contented that it should be made obligatory on the part of the arbit­

rator to give reasons for the award, that there is no justification

to leave the small area covered by the law of arbitration out of the

general rule that the decision of every judicial and quasi-judicial

body should be supported by reasons. But at the same time it has to

be borne in mind that what applies generally to settlement of disputes

by authorities governed by public law need not be extended to all

1T Ibid at 111.
2. (1989) 2 S.C.C. 712.
 828

cases arising under private law such as those arising under the law

of arbitration which is intended for settlement of private disputes.

As stated elsewhere in the course of this judgement if the parties

to the dispute feel that reasons should be given by the arbitrators

for the awards it is within their power to insist upon such reasons

being given at the time when they enter into arbitration agreement

or sign the deed of submission. It is significant that although

nearly a decade ago the Indian Law Commission submitted its report

on the law of Arbitration specifically mentioning therein that there

was no necessity to amend the law of arbitration requiring the arbi­

trators to give reasons, Parliament has not chosen to take any step

in the direction of the ’ amendment of the law of Arbitration”.

2
His lordship gives the following grounds for the support of

his thesis that an arbitrator needs not give reasoned decision.

1) The parties resort to an arbitrator voluntarily and select or

agree to a particular arbitrator because they have faith in him. To

have a provision making it obligatory for the arbitrator to give

reasons for award would be asking for the introduction of an infirmi­

ty in the award.

2) The inevitable effect of the compulsion to give reasons would be

that the validity of most of the awards would be challenged on the

ground that the reasons are bad and not germane to the controversy.

(1989)
1. 2 S.C.C. 721 at 751-52.
2. Ibid at 737-740.
 829

3) In many cases the arbitrators would be lay men. Although their

final award may be an honest an conscientious adjudication of the

controversy and dispute, they may not be able to insert reasons in

the award as may satisfy the legal requirements and the scrutiny of

the courts.

4) This would substantially defeat the object of the Arbitration Act.

5) When reasoned decisions are made compulsory, the reasons must

be proper and adequate and this may be one of the grounds to invalid­

ate the award. This will not make the proceeding of the arbitration

more speedy and this will also liot free that proceeding from techni­

calities of the court of law.

6) It will also go against the finality of the arbitration.

It is true, as his lordship has pointed out that giving reasons

will invite the judicial review of the arbitration proceedings, beca­

use if the arbitrator gives reasons for a conclusion of law the courts

can go into those reasons. Yet this should not be a ground to hold

that arbitrators are not bound to give reasoned decisions. The present

day set up of the society and of the administrative adjudication, the

public - private dichotomy will not be a good example. We must remem­

ber the famous statement of Harry Jones that ’the day to day decision

shall be reasoned, rationally justified in terms that take into accou­

nt both, the demands of general principles and the demands of the

2 The great purpose of the rule of law notion

particular situation'.1

1. [Link] v University of Delhi,A.I.R. 1080’ .

2. The Rule of taw and the Welfare State,1958(58) Columbia L.R.1439-40
 830

is the protection of the individual against arbitratory exercise of

the power, wherever, it is found. 'The decision of the arbitrator is

going to affect the rights, reputation and liberty of the parties to

the dispute. They are bound to observe the rules of natural justice.

Therefore, decision of the apex court in this case is contrary to

the judicial thinking of our country

* 12

When a reasoned award is given, the unsuccessful party would

know whether he has a just cause for complaint, That party could also

apply to the court for setting aside the award on that ground.

The Karnataka High Court has ruled in C.N. Seshagiri Rao v Comm­
issioner, Corporation of the City of Bangalore^ that the notice of

the Karnataka Municipal Corporation for the enhancement of the prope­

rty tax was without [Link] court quashed the notice on the ground

that giving notice without reason was violative of principle of

natural justice. Thenotice must contain specific reasons for Jthe

enhancement of the property tax.

The First Law Commission in its 14th Report on Reform of Judici­

al ^ministration recommended that 11 In the case of administrative

decisions, provision should be made that they should be accompanied

by the reasons. The reasons will make it possible to test the validi—
, 2
ty of these decisions by the machinery of appropriate writs".

Prof. Bakshi says "Reasoned elaboration would at least entails

(a) clear formulation of issues at hand; (b) formulation of rival

legal positions urged at bar; (c) advertence to precedents; (d) enun­

1. A.I.R.1990,N.O.C.152 (Karnataka).
2. [Link], p.694,para 42(6).
 831

elation of policyor value preference guiding criteria of choice making

and (e) articulation, in a precise manner, of the law actually made.

"Reasoned elaboration" will necessarily entail semantic precision,

logical, rigour, and avoidance of internal inconsistencies requiring

subsequent interpretative effort or raising doubts, in any case,

concerning the validity of the judgement".12

Soli J. Sorabjee says "To support a decision by stated reasons

is considered the Hallmark of good and fair government. Our Supreme

Court has gone further and considers it a requirement of natural

• 4.-
justice I. . 2

Thus, we see that giving reasoned decision is the third princi­

ple of natural justice. The functions of the state in the nature of

welfare and social activities are expanding daily. The authorities

are vested with large powers. The rules of natural justice have been

evolved by the courts to put a check on the arbitrary powers of the

executive branch of the government. The one who exercises power must

exercise that power in good faith and the exercise of power must be

justified by good reasons.

Dr. M.P. Jain says "It is clear that giving of reasons goes to

the very root of the process of the adjudicatory body and nothing

will improve the functioning in this area as well as their image in

the public eyes as this single rule... One should not forget that

giving of reasons is not just a formal requirement. It serves a very

1. Introduction to [Link]’s Democracy Equality and Freedom,

(1958), 1978, [Link].
2. Kehar Singh case. Historic Judgement by Supreme Court, ihe Times
of India, 2 Jan.1989.
 832

important purpose, it ensures that the adjudicatory body applies its

own mind to the merits of the case in hand and gives due considerat­

ion to the matters in issue, and that it does not dispose of the
-1
appeal in a mechanical manner or on extraneous consideration12
3
*•

It being an essential feature of the judicial process, the

recording of reasons in a judicial or a quasi-judicial matter is imp­

erative and failure to do so vitiates the decision”.^

[Link] concludes "In the matter of judicial review

of administrative decisions, a reasoned order plays a very important

role. The requirement is comparatively of recent origin and this may

be one of the reasons for the slow development of this part of law

in India. If, all on a sudden, before the whole administration becomes

aware of this requirement, reasoned orders are insisted on in all

sorts of administrative decisions, that may paralyse the administrat­

ion. The partial reluctance of the Indian courts in this matter and

their method of slow introduction of this requirement has helped to

avoid the aforesaid contingency. Courts should insist on a reasoned

order in all administrative decisions except in decisions such as

selection or appointment i.e. cases where reasons cannot be concreti­

sed and in decisions where the prime concern is that of policy or

3
security of State”.

1. [Link]., p.272.
2. Law, Judges and Justice, S.M. Raina, p.333.
3. New Horizons of Natural Justic, Ihe Academy aw Review, vol.2,
1978, 253 at 296.
 833

Seervai is of the view that "The Supreme Court's decisions on

the obligation to Jgive reasons are in an unsatisfactory state... The

question whether there is an obligation to give reason must be consi- .

dered in two distinct and separate context, first in the context of

an appeal under Article 136, and,,secondly, in the context of the

supervisory jurisdiction of the Supreme Court and the High Court under

the Articles 32 and 226, respectively'.'1

Giving reasoned decision is an essential element of the rule of

law and of the natural justice. A litigant is fully entitled to a full

and reasoned judgement stating the court's appreciation of facts and

the reasons for coming to the conclusions. It would be congenial to

the development of administrative law that the administrative tribun­

als and the other adjudicative bodies must give reasons for their

decision. This would be inconsonance with the requirement that it is

not enough that justice is done, but the same must also be seem to

be done. The absence ot reason is a negation of the rule of law, it

renders infructuous the right of appeal. If decisions are not coupled

with reasons, it is a denial of justice. It is one of the important

requirements of justice. Fairness, founded on reasons, is one of the

fundamentals of good administration and every citizen of a democratic

country is entitled to that fairness. Natural justice requires record­

ing of reasons as a part of its own principle because the basic . tene-

nt of natural justice is fairplay in action. Our Supreme Court gives

much importance to the duty to give a reasoned decision.

1. [Link]., vol.2,pp.1475-76.
 834

The duty to give reason enables the court to say whether the

decision of an administrative agency is right or wrong. An obligation

to give reasons imports a net work of background moral principles/

such as the principles that like cases be treated alike in the absence

of a reason for distinguishing it. The rapid growth of administrative

power, the concept of natural justice coupled with the principles of

the rational law require that reason must be given so that administr­

ation may not abuse its power, the public gets the fruit of welfare

scheme and administrator does not turn into a new despot.

Thus, the reasoned decision prevents, unfairness or arbitrariness

in reaching the conclusions. It ensures the appearance of justice.

Decisions, without reasons may be just but may not appear to be just

for those who read them because they have got no basis on which they

can evaluate the justness of the decision. It also helps the Supreme

Court under Article 136 to go into the merits of the case. If the

reasons are not disclosed, it will be very diffcult for the Suprme

Court to exercise its judicial review over the matter appealed to it.

Our Supreme Court has observed, after perusal of its various judge­

ments, that giving of reasoned decision has the following merits/

first the reasoned decision would enable the Supreme Court and the

High Courts to effectively exercise the appellate or supervisory

power. Second it guarantees considerations by the authority. Third/

it introduces clarity in thedecisions, fourth it minimize chances of

Arbitrariness in dicision making. In that very case our Supreme

1. [Link] v Union of India,A.I.R. 1990, S.C.1984 at 1995

 835

Court has observed, -Recording of reasons by an administrative autho­

rity serves a salutary purpose, namely, it excludes chances of arbitr­

ariness and ensures a degree of fairness in the process of decisions-

making. ihe said purpose would apply equally to all decisions and its

application cannot be confined to decisions which are subject to appeal

revision or judicial review. What is necessary is that the reasons are

clear and explicit so as to indicate that the authority has given due

consideration to the points in controversy. The need for recording

or reasons is greater in a case where the order is passed at the

original stage.

Our Supreme Court has again emphasized the importance of giving

7
a reasoned decision in State of West Bengal v Atul Krishna Shaw • Mr.

Justice K. Ramaswamy observed, "Giving of reasons is an essential

element of administration of justice. Reasoned decision is not only

for the purpose of showing that the citizen is receiving justice,but

also a valid discipline for the Tribunal itself. The same has been
A
emphasized in Delhi Transport Corporation v D.T.C. Mazdoor Congress •

M.J. Detmold is of the view that “Giving reason serves the

purposes of confirmation, exhortation, warning, or simple advice1*3
4
'.5

1. Ibid at 1995.
A.I.R.
2. 1990, S.C^ 2205-.
3. Ibid at 2208.
4. A.I.R. 1991, S.C.. 101 at 166.
5. Law as Practical Reason, 48, The Cambridge Law Journal(1989).
436 at 436-38.
 836

Giving Reasons by Appellate Authority:

The important question with regard to stating reason is whether

the appellate authority, while rejecting the appeal is bound to give

reasons or not, Mr. Justice Suba Rao of the Supreme Court made it

5 that where the original tribunal

very clear in M.P. Industries case12
4
3

gives reasons, the appellate tribunal may dismiss the appeal or the

revision, as the case may be, agreeing with those reasons and that

what is essential is that reasons shall be given by an appellate or

revisional tribunal expressly or by reference to those given by the

2
original tribunal’1.
was
The same,/emphasized by the constitution bench of our Supreme
3
Court m Bhagat Raja Case.

Thus, it is clear that the court has ruled that the tribunal

should tell the party why the decision is going against him in all

cases where the law gives a further rights of appeal. If the appell­

ate authority does not give reasons and if that order is also appeall-

ed the court will not know the views of the appellate authority.

However, the Supreme Court has observed in S.N. Mukherjee’s case

4
that the appellate or revisional authority, if it alfirms such an

order need not give separate reasons, if the appellate or revisional

authority agrees with the reasons contained in the order.

1. A.I.R. 1966, S.C. 671.

2. Ibid at 675.
3. A.I.R. 1967, S.C. 1606 at 1610.
4. A.I.R. 1990, S.C. 1984.
5. Ibid at 1995.
 837

It is, respectfully, submitted that giving of reasons by appell­

ate or revisional authority will ensure the application of mind of

these authorities in the real sense of the term. If he simply says

that there is no ground to interfere in the order and' the appeal is

rejected, that will not assuage the feelings of the appellant and

would create a feeling that appellate authority has simply endorsed

the decision of the lower authority and has not applied his mind«

The appellate authority should state his reasons even if he agrees

with the reasons of the original authority. In such proceedings the

pattern of the High Courts and Supreme Court should be followed,

where if a concurring judgement is given by a judge and even if he

agrees with the majority judgement he gives his own reasons to support

the reasons of the majority. This ensures that the said judge has

applied his mind in every aspect of the case and has come to the same

conclusion. If the appellate authority follows this pattern it will

not be criticised for the non-application of mind. It is, therefore,

humbly suggested that even if he agrees with the reasons of the lower

authority, he must give his own reasons for such agreement. That will

ensure the appearance aspect of justice and the supervisory courts

shall be able to exercise their powers of judicial review in a

satisfactory manner.
 838

LEGAL CONSEQUENCES OF THE FAILURE

There is no doubt on this point that giving a reasoned decision

is the part and parcel of the natural justice. However, the attitude

of the courts has been a constant changing one with regard to the

interpretation of the legal consequences of a tribuna I*

s failure to

meet its statutory duty to give reasons. Some courts have held that

a failure to give reasons amounts to an error o£ law. This is known

as the error approach and leads to the conclusion that such decisions

are void and they are to be quashed by the court of law. The second

approach is the non-error approach. It will lead to invalidity only

if the judgements provide the evidence of such an error. The error

approach has been adopted in repoyser and mill arbitration. Givaudan

2 3
v M.H.L.G. , Alexander Machinery (Dudley)Ltd. v Cravtree , Bhagat Raja
4
v Union of India , Siemens Engineering and Mfg. [Link] India v Union of
5 . 6 . .
India ,Jagannath Kashinath Kavalekar v Union of India , [Link]
7
Rao v Commissioner, Corporation of the City of Bangalore.

The non-error approach has been followed in Mount View Court

8 9
Property Ltd. v Dublin , Crake v Supplementary Benefits Commission ,
10
R. v London Assessment Committee Ex-parte [Link]’s Court Ltd. , R.
11
v Secretary of State for Transport, Ex—parte Cumbria C.C. t [Link]

v Union of India12, Raipur Development Authority v m/s Chokhamal

Contractors.
1. (1964) 2 Q.B. 467.
2. (1967) 1 W.L.R. 250. 8- (1970) 21 P.A.N.D.C.R.689.
3. (1974) I.C.R. 120. ■ ’• (1982) 1 All E.R., 498.
4O A.I.R. 1976, S.C.. 1606. 10. (1983) 265, E.G. 498.
5. A.I.R. 1976, S.C. 1785. 11- (1983) R.T.R. 88.
6O A.I.R. 1967, Del. 121 at 124. 12. A.I.R. 1969, S.C. 414.
7. A.I.R. 1990, N.O.C. 152 Karnatakal3. (1989) 2 S.C.C. 721.
 839

Really speaking the law remains confused and uncertain with

regard to the failure of giving a reasoned decision. Inspite of the

insistence by courts and jurists, the courts are not taking a defin­

ite view with regard to this problem both in India and in England.

It is heartening to note that the judiciary in the whole world of

democratic set up has started giving importance to the error-approach

and has been quashing the decisions that fail to record reasons. Much

has to be done yet, Dr. S.N. Jain concludes "The court's approach is

ordinarily to quash an administrative order for failure to give reas­

ons but this has not always happened. Where the court adopted the

former course, in many cases, apart from the absence of reasons,

there were other factors justifying court’s action, such as non-appl-

ication of the mind, failure of the audi alteram partem, or some

other illegality. These cases may, therefore, be not much of releva­

nce except that they may be used to substantiate the otherwise

established proposition.... that failure to give reasons, wherever

required, makes the order invalid.

Three situations may be contemplated in the context:

i) Non-supply of reasons both to the party and the court;

ii) Non-supply of reaons to the party but communicating reasons to

the court; and

iii) Supply of reasons to the party after undue delay of the commu­

nication of the non-speaking order, but before the individual

1
has approached the court”•

1. Effect of Failure of Natural Justice: ihe Ultimate Relief:

vol. 1.24, 1 & 2, 1984 at 17-18.
 840

The learned author

gyests that if the reasons are not given
to the individual and alqn .
not supplied to the court, that decision
should be held to be void u
owever, the court should adopt the error
approach and failure to aivo
y e tne reasons should be treated as violat­
ion of the rule of nA^nr.i ..
justice and decision should be quashed.
Only through this method there will b
re will be a proper check on the abuse
of the discretionary power of the authorities.

* ★* *