DR.

RAM MANOHAR LOHIYA NATIONAL LAW

ADMINISTRATIVE LAW
FINAL DRAFT

TOPIC: RULE AGAINST BIAS

Submitted to- Submitted by-

Dr Manoj Kumar Tulika Gupta

Assistant Professor of Law, Roll no.-180101150

Dr. Ram Manohar Lohiya National law [Link].B. (Hons.) 3rd year

University, Lucknow V Semester

1
 ACKNOWLEDGEMENT

“Words can never convey what deeds have done.”

Writing a project is never a single man’s job. I am overwhelmed in all humbleness and
grateful to acknowledge my depth to all those who have helped me to put ideas, well above
the level of simplicity and into something concrete.

I am very thankful to my administrative law professor Dr Manoj Kumar for his valuable help.
He was always there to show the right track when I needed his help. With the help of his
valuable suggestions, guidance and encouragement, I was able to complete this project. I
would also like to thank my friends, who often helped and gave me support at critical
junctures during the making of this project.

I hope you will appreciate the hard work that I have put in this project.

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 TABLE OF CONTENTS

ACKNOWLEDGEMENT.........................................................................................................2

INTRODUCTION......................................................................................................................4

EVOLUTION.............................................................................................................................5

LAW OF BIAS IN INDIA.........................................................................................................9

TYPES OF BIAS.....................................................................................................................13

THE INFORMED OBSERVER STANDARD.......................................................................16

CONCLUSION........................................................................................................................19

REFERENCES.........................................................................................................................20

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 INTRODUCTION

The rule against bias is considered to be one the most important branches of the principle of
natural justice. It is based on the simple idea that the person deciding a dispute should not be
favourable or prejudiced to any of the parties to the dispute. Beyond that simple
understanding the rule against bias takes different shape and forms, all augmenting the need
to ensure fairness in the administration of justice. Throughout its evolution the rule has
shifted dimensions, from its beginning as a principle to ensure fairness in decision making, to
inculcating a transparent procedure wherein decisions could actually be seen to be made by
those affected by it. All through its evolution it has also been related to numerous theories,
which have been ultimately used to rationalize the deployment of the principle in one form or
the other. As a principle of fairness, the rule has a universal appeal, and has been endorsed by
almost all the important jurisdictions in the world. In India the principle was adopted within
two years of independence and since then has evolved a distinct jurisprudence of its own.
Its evolution in India, the principle has assumed a distinct identity, even though the theories
underlying the working of the principle may have been borrowed from foreign jurisdictions.
The courts in the India have haphazardly used different tests of bias without actually
engaging in a theoretical discourse for the need to apply the principle. Despite references to
numerous methodologies for evaluating allegations of bias, and despite the deployment of
different test, the courts have actually been following a singular methodology in which the
judges themselves are evaluating the allegations of bias – not as a personification of a
reasonable person – but as judges themselves.

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 EVOLUTION

One of the earliest instances of the application of the rule against bias was in the case of
Dimes v Grand Junction Canal.1 The case involved some allegations against Lord Cottenham
LC that he had sat in proceedings involving a company in which he had shares. Though there
was no suggestion that he had acted in a biased way, the judgment still was set aside. Writing
down the reasons for what would be interpreted and reinterpreted in a hundred different ways
in the years to come Lord Campell observed 2:“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 . . . 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 influence.”
The case marked the beginning of what Lord Hewart would famously paraphrase as “justice
should not only be done, but should manifestly and undoubtedly be seen to be done”.3
In R V Rand,4 questions were raised regarding the incompatibility of two judges, who while
having financial interests in a Corporation also sat as judges in a proceeding in which
decisions were given in favour of the corporation. Answering the question that the judges
were not biased Blackburn J reiterated the rule: “There is no doubt that any direct pecuniary
interest, however small, in the subject of inquiry does disqualify a person from acting as a
judge in the matter”; writing further what has since then come to be known as the real
likelihood test of bias, Blackburn J observed: “Wherever there is 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 to say, that where there
is a real bias of this sort this Court would not interfere; but in the present case there is no
ground for doubting that the justices acted perfectly bona fide; and the only question is,
whether in strict law, under such circumstances, the certificate of such justices is void, as it
would be if they had a pecuniary interest.”5
Blackburn’s decision in Rand led to an understanding of bias in which bias affected by
pecuniary or monetary interest led to the automatic disqualification of the judge. 6 This came
to be known as “direct interest”, and in cases in which it could be shown that the judge had
direct financial interest with either the parties or the subject matter of the case, he would be
removed from his position as the judge irrespective of the strength of the suspicion against
him. Given the theoretical background in which the direct interest operated, it was less
complicated and posed little problem for the judges. The real problem however concerned
situations where claims of indirect financial bias or personal bias were alleged. In such cases
the ultimate deciding factor for determining bias was the level of suspicion that could be
attributed to the judges. Given the uncertain nature of the subject matter (which any question
relating to bias certainly is), and the volatile circumstances under which inferences are made
for determining the “possibility” (or probability) of bias, an objectively valid test for
determining “indirect interest” became all the more elusive.7

1
(1852) 3 HL Cas 759.
2
10 ER 301 at 315, HL.
3
R v. Sussex Justices, Ex parte McCarthy, ([1924] 1 KB 256.
4
(1866) LR 1 QB 230.
5
(1866) LR 1 QB 230 at 232.
6
CRAIG, ADMINISTRATIVE LAW, 6TH ED. (LONDON: SWEET AND MAXWELL, 2008) AT 418.
7
IAN LOVELAND, CONSTITUTIONAL LAW. ADMINISTRATIVE LAW AND HUMAN RIGHTS, 503-504 (2012).

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Examples can be drawn from the decisions of the English Courts which played an important
role in tying up the concept of an indirect “interest of bias with an objectively valid test.” The
decision of the King’s Bench in v Sussex Justices, ex p McCarthy8 was one such instantiation.
The court had to decide the legality of the conviction order of a criminal court in which the
judges had taken the assistance of a clerk cum solicitor, who himself was involved as a
solicitor in a civil action arising from the accident which was the subject matter of the present
conviction. There were no suggestions that the clerk had actually acted in a biased fashion in
the criminal case. Rejecting the suggestions that the clerk was not biased, Lord Hewart CJ
raised the following issue: “The question therefore is not whether in this case the deputy clerk
made any observation or offered any criticism which he might not properly have made or
offered; the question 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.”9
Adding further he observed: “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 interference with the course of justice.”10
Given the fact that actual bias is not only rare but also difficult to prove, the growing corpus
of law on bias is dominated by cases involving apparent bias or presumed bias. It is within
the context of presumed bias that drawing a proper test of bias has proved to be the most
difficult; requiring at the core, answers to some seemingly difficult questions relating to:
a. the circumstances that would justify suspicion of bias11
b. the nature of the suspicion in terms of likelihood or mere suspicion and
c. in the standard case whose suspicions (viewpoint) should be given more weightage
i.e. the reasonable person or the judges (The viewpoint approach)
An understanding of bias, at least in sense in which it is used by the courts, marks a division
between what is referred to as “subjective bias” and “Objective bias”. While subjective bias
relates to the actual state of mind of the decision-maker, objective bias is concerned with how
a reasonable person may have apprehended bias because of some particular proven
circumstance external to the matters to be decided.12 As could be understood, any test of bias
which requires the claimants to prove subjective bias would be a controversial test in that the
allegations of subjective bias are difficult to prove as “it may be impossible to establish the
precise state of mind of the adjudicator”13 In the context of the real likelihood test it has often
been argued that the test is similar to the test for “subjective test” insofar as both tests
attempts to focus on the court’s own view of the realities of the situation.
Objective bias relates to the idea that the operation of the judicial system should repose on the
trust and confidence of the people. It draws inspiration from the notion, whether a reasonable
person, based on the circumstances relating to the matter to be decided, can trust the integrity
of the judicial system to give an unbiased decision. It is in this sense that objective bias is
similar to reasonable suspicion of bias and most of the rationale underlying the principle can
also be found in objective bias. Some authors have likened the real likelihood test to the

8
[1924] 1 KB 256.
9
[1924] 1 KB 256 at 259.
10
Ibid.
11
Locabail (Locabail (U.K.) Ltd. v. Bayfield Properties Ltd, 2000 QB 451; Kumaon Mandal Vikas Nigam Ltd v.
Girja Shankar Pant, (2001) 1 SCC 182.
12
Orange Communications Ltd v. Director of Communications Regulation, [2000] 4 I.R. 159 at 252.
13
Newfoundland Telephone Co. v. Newfoundland (Board of Commissioners of Public Utilities), (1992) 89
D.L.R. (4th) 289 at 297.

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objective test, in the sense that both situations deal with the case of “apparent bias”. 14
However, there are aspects of the real likelihood test that ties it more closely to subjective
bias rather than objective bias.15
With very little to choose from between the two tests test it has, at times, been suggested that
the two tests are “different names for the same test”.16 And that may indeed be the case, if it is
accepted that as creatures of “apparent bias” both the tests demonstrate similar and
overlapping attributes. At times however the “real likelihood” has insisted on a “probability”
test, making it more a creature of “actual bias” then otherwise. The Queen’s Bench decision
in R v Barnsley Licensing Justices, ex p Barnsley and District Licensed Victuallers’ 17
Association serves as a good example. The case concerned the grant of a license to sell liquor
to a cooperative society – an organization of which all the judges were the members making
them eligible for the share of any profits which the cooperative society might make. Devlin
LJ rejected Hewart CJ’s suspicion test in McCarthy as too broadly stated, and laid down the
following principle: In my judgment, it is not the test. We have not to inquire what
impression might be left on the minds of the present applicants or on the minds of the public
generally. We have to satisfy ourselves that there was a real likelihood of bias, and not
merely satisfy ourselves that that was the sort of suspicion which might reasonably get
abroad.
In between oscillations from one test to the other, there were also efforts to interpret the “real
likelihood” standard in a manner as to achieve a middle ground between the two tests. In
Metropolitan Properties Co v Lannon,18 Lord Denning MR made a half-hearted effort to
achieve that. Lannon concerned a challenge to the decision of a rent assessment committee on
the basis that one of the members of the committee had in his professional capacity as
solicitor, given advice to tenants of a close business associate of the appellant company. Lord
Denning ruled that there was no actual bias: Lord Denning MR accepted that Mr Lannon’s
financial interest in the rent level set was ‘remote . . . indirect and uncertain’. 19 He
nevertheless quashed the committee’s decision. He did so by invoking the “real likelihood”
standard, but by subjecting it to an interpretation that seemed close to the “suspicion test” as
propounded in McCarthy, while observing that in Barnsley Devlin LJ “appears to have
limited the McCarthy principle considerably, but I would stand by it”. 20 The test that he
offered seemed to incorporate elements of both the “reasonable suspicion” and “real
likelihood standard”. He observed that in considering real likelihood, “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 ... The court will not inquire whether he did, in fact, favour one side unfairly. Suffice it
that reasonable people 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.”21

14
H.W.R. WADE AND C.F. FORSYTH, ADMINISTRATIVE LAW, 501-504 (2009).
15
Finín O‟Brien, Nemo Iudex in Causa Sua: Aspects of the No-Bias Rule of Constitutional Justice in Courts
and Administrative Bodies, Irish Journal of Legal Studies Vol. 2(2) 2011.
16
supra note 14 at 506.
17
[1960] 2 QB 167.
18
[1969] 1 QB 577.
19
Ibid at 599.
20
Ibid.
21
Ibid.

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Lord Denning’s reinterpretation of the "real likelihood” test has been the subject matter of
much criticism, contributing to, what many critics have referred to as a state of “confusion
welter of authority”. 22 As observed by Ian Loveland, Lannon resulted in the emergence of
“two formulae in respect indirect pecuniary interest; “‘suspicion of bias’ (on the part of
dispassionate observers) or ‘real likelihood’ (in view of the court)”.23
The confusion continued for another some years before it was finally taken up by the House
of Lords in R v Gough.24 In addressing the uncertainty surrounding the law of bias, Lord Goff
sourced the uncertainty to the co-existence of the ‘suspicion’ and ‘likelihood’ formulae.
While reiterating that a direct pecuniary interest would lead to automatic disqualification, for
non-financial matters he offered a variant of real likelihood standard which he referred to as
the ‘real danger’ test. In a significant deviation from the traditional understanding of bias he
discarded the notion of the ‘reasonable person viewpoint” because the court in such cases
such as these personifies the reasonable man….Having ascertained the relevant
circumstances, the court should ask itself whether, having regard to those circumstances,
there was a real danger of bias on the part of the relevant member of the tribunal in question,
in the sense that he might unfairly regard….with favour or disfavour, the case of the party to
the issue.25
But did Gough really allay the confusion surrounding the two tests? For example, Lord Goff
suggested “possibility’ rather than ‘probability’ as the underlying idea behind the ‘real
danger’ test. In terms of viewpoint the decision marked a substantial modification to the
‘reasonable person’ standard by introducing the concept of ‘real danger’. It is argued that in
making this shift – from the reasonable person to the court - the court ignored the need to
promote public confidence in the administration of justice. This aspect of the decision was
severely criticized by the High Court of Australia as it emphasized the court’s view of the
facts and placed inadequate emphasis on public perception of an irregular incident.26
Another problem with the ‘real danger’ test was that it differed from the standard that was
followed in other commonwealth jurisdictions, Scotland and the ECtHRm which were closer
to the ‘reasonable man’ standard rejected by Lord Goff in Gough.27
While revisiting the issue in In re Medicaments (No 2),28 Lord Philips MR (as he was then)
held that: “When the Strasbourg jurisprudence is taken into account, we believe that a
modest account of the test in R v Gough is called for, which makes it plain that it is, in effect,
no different from the test applied in the most of the commonwealth and in Scotland. The
Court must first ascertain all the circumstances which have a bearing on the suggestions that
the judge was biased. It must then be asked whether those circumstances would lead to a
fair-minded and informed observer to conclude that there was a real possibility, or real
danger, the two being the same, that the tribunal was biased.”29
While endorsing this clarification, the House of Lords in Porter altogether deleted the
expression ‘real danger’ from the final formulation to leave the test as “whether a fair-
minded and informed observer having considered the facts, would conclude that there was a
real possibility that the tribunal was biased.”
22
Paul Jackson, A Welter of Authority, 34 (4) Mod.L.R. 445, 446 (1971).
23
supra 7 at 504.
24
[1993] AC 616.
25
supra note 24, at 670.
26
Webb v. R, (1994) 181 CLR 41 at 18.
27
supra note 8 at 536.
28
[2001] 1 WLR 700.
29
Ibid at 726-727.

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9
 LAW OF BIAS IN INDIA

One of the earliest instances in which the issue of bias was taken up by the Supreme Court
was in Manak Lal v Dr. Prem Chand.30 The case involved the legitimacy of tribunal’s award
punishing the appellant for professional misconduct. It was alleged by the appellant that the
tribunal was biased on account of the chairman having served as the counsel for the
respondent at an earlier stage of the same case. Drawing extensively from the decisions of
English Courts the court attempted to formulate a test of bias which closely operated within
the doctrinal area of the reasonable suspicion test. 31 Though the court did not expressly used
the term reasonable suspicion, the pattern of reasoning adopted by the court was clearly
indicative of the two prongs of the reasonable suspicion test namely, the view point test
according to which the court was to determine whether under a given set of circumstances
“there is a reasonable ground for assuming the possibility of a bias” and whether the
assumptions “is likely to produce in the minds of the litigant, or the public at large a
reasonable doubt about the fairness of the administration of justice”.32
Manak Lal marked the beginning of what has unfortunately been six decades of utter
confusion on bias jurisprudence in India. Though, Manak Lal cannot be solely blamed as
starting this confusion, it cannot also be completely absolved from it. If Manak Lal failed, it
is not because of the ambiguity in the decision-making process, which was not only clear and
lucid but also coherently structured around ideas prevalent amongst the British courts on the
same subject matter. Where Manak Lal failed was in its treatment of the subject matter; in its
omission to clarify the meaning and scope of the “test” that it was relying upon. Indeed for
most part of the decision while the court was busy importing ideas from the decisions of a
foreign court, it ignored altogether to understand the context within which such ideas were
born. For example the decision shows little or no effort on the part of the court to engage in a
historical analysis of the law of bias in England, which if undertaken, could have given a
clearer idea of the contextual categories in which the law of bias had evolved in England.
Strangely enough the “test of bias” as the court understood in the present case, has been used
more as a rationalizing tool in supporting a particular decision rather than as a formidable
doctrine towards forging a stronger and more compact test of bias in India. In the context of
the bias jurisprudence in India, this omission has proved to be particularly unwholesome, if it
is considered that the principles which the court imported was a product the dynamics
between two opposing ideas namely the real likelihood test and reasonable suspicion test and
in missing out a proper analysis of the subject matter the court failed to give a strong
doctrinal foundation to law of the bias in India. This is not to argue that the bias jurisprudence
is any less complicated in England, but the English courts knows what they are doing even if
they are doing it wrong.
The doctrinal lapse in Manak Lal was immediately visible two years later in Gullapalli
Nageswara Rao and vs Andhra Pradesh State Road,33 in which the Apex Court had to decide
the legality of a hearing conducted by the Secretary, Home Department, who was also in
charge of Transport. The Secretary had been appointed to hear objections against the state
government’s plan to nationalize road transport in Andhra Pradesh, and had been so
appointed under an order of the chief minister. The allegation against the hearing was that as
30
AIR 1957 SC 425.
31
Id at 425-427.
32
Ibid.
33
AIR 1959 SC 1376.

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a quasi-judicial body “whose duty it was to act judicially in approving the scheme had
transgressed certain fundamental principles of natural justice”. The core issue to be decided
by the Apex Court was whether the hearing by the Secretary was a judicial function and
whether the same had been reeked with bias on the ground that he himself was a party to the
dispute.34
While holding that “State was deciding a lis and it was to act judicially” the Court
simultaneously quashed the hearing as being biased. Writing for the majority Subba Rao J
relied extensively on the Lord Hewart’s observation in Rex v Sussex Justices Ex Parte
McCarthy to support his findings. He wrote that: “The aforesaid decisions accept the
fundamental principle of natural justice that in the case of quasi-judicial proceedings, the
authority empowered to decide the dispute between opposing parties must be one without
bias towards one side or other in the dispute. It is also a matter of fundamental importance
that a person interested in one party or the other should not, even formally, take part in the
proceedings though in fact he does not influence the mind of the person, who finally decides
the case. This is on the principle that justice should riot only be done, but should manifestly
and undoubtedly be seen to be done.”35
Though the Court did not say it expressly, the decision suggested a pattern of reasoning akin
to the “reasonable suspicion” test of bias. Unfortunately, the Court neither mentioned the
reason nor the actual feasibility of adopting the test to the present state of facts.
Two years after Guallapli there was another matter before the Supreme Court relating to
personal bias. In Mineral Development Ltd vs The State Of Bihar,36 the Court had to decide
the legality of a decision by the Revenue Minister terminating the mining lease of the
petitioner. The allegation against the Minister, who was also in charge of the department
dealing with mines, was that there was a political rivalry between the minister and the
proprietor of the land who had leased the lands in question to the petitioner. The Supreme
Court set aside the decision of the Minister as being biased and observed that: “if a member
of a judicial body is subject to a bias (whether financial or other) in favour of, or against,
any party to a dispute, or is in such a position that a bias must be assumed to exist, he ought
not take part in the decision or sit on the tribunal; and that ,any direct pecuniary interest,
however small, in the subject-matter of inquiry will disqualify a judge, and any interest,
though not pecuniary, will have the same effect, if it is sufficiently substantial to create a
reasonable suspicion of bias.”37
Mineral Developments marked a departure in regard to the fact that the Court had finally
shed its reticence by clarifying the nature of the test it was resorting to; beyond that however
there was very little that the court said as far as the law on bias was concerned. Once again,
the Supreme Court had endorsed a “reasonable suspicion” version of the bias test without
making it clear what the test actually meant or how it actually functioned as a determinant of
bias in decision making procedures.
While the aforementioned cases relied on what can be regarded as a local prototype of the
reasonable suspicion test, there were other decisions following Mineral Developments which
endorsed the real likelihood model of the bias test. One such example was the decision of the
Supreme Court in A.K. Kraipauk v Union of India,38 where the Court had to decide the
legality of the decision of a Selection Board in which one of the members was himself the
34
supra Note 35 at 1377.
35
Ibid.
36
AIR 1960 SC 468.
37
Ibid at 473.
38
AIR 1970 SC 150.

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candidate for the interview. Operating on the principle that a man should not be a judge in his
own case, the Supreme Court reasoned that “a mere suspicion of bias is not sufficient”, while
adding further that, “The real question is not whether 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.”39
Kraipauk was and still is one of the most important decisions given by the Supreme Court in
the field of natural justice. It took the principles of natural justice beyond the conceptually
volatile realm of “judicial and quasi-judicial functions” to administrative functions as well.
For all its significance however, the decision also lacks a proper analysis of the reasons why
the court felt it necessary to substitute the reasonable suspicion test with the real likelihood
test. In keeping with previous precedents, which showed little or no effort on the part of the
Supreme Court to engage in a theoretical analysis of the bias test (whether reasonable or
likelihood), the Kraipuak decision failed miserably in explicating the doctrinal distinctions
between the reasonable suspicion and real likelihood test. Curiously enough there are
passages in the decision which suggests that the Court was aware of the distinctions between
the two tests, going so far as to agree with the Attorney General that a “reasonable suspicion
of bias is not sufficient”, unfortunately the court did little to work on the distinctions leaving
the matter.
A distinct pattern emerges if one peruses decision making on bias by the Apex Court of India.
Besides developing, and individualizing a unique bias jurisprudence in India, the pattern has
also contributed to a huge literature on the subject. This is true, particularly in contrast to the
bias jurisprudence that has emerged in the UK. Compared to the United Kingdom - where
different theoretical designs inform the operation of the different tests – the Courts in India,
though appreciative of the theoretical designs have done little to reflect it in the decision-
making process. An example can be taken from the observation of Justice P.N. Bhagwati in
Ashok Kumar Yadav v, State of Haryana,40 “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….Where reasonable likelihood of basis is
alleged on the ground of relationship, the question would always be as to how close is the
degree of relationship or in other words, is the nearness of relationship so great as to give
rise to reasonable apprehension of bias on the part of the authority making the selection.”
As could be seen the decision mixes up the dividing line between the two tests, specifically in
its disregard for the ‘point of view’ aspect of the bias tests. A significant portion of the
decision draws its rationale from a framework, which operates on a ‘reasonable
apprehension’ created in the mind of others, while the conclusion is framed in terms of a
likelihood version ‘as to give rise to reasonable apprehension of bias on the part of the
authority making the selection’. It needs to be understood that the entire controversy on the
rule against bias is based on finding an appropriate vantage point from which to evaluate the
circumstances giving rise to the claim of bias; indeed it is this perspective that makes either
of the tests unique in itself. Ignoring this difference would only render the decision
superfluous.
In Kumaon Mandal Vikas Nigam Ltd vs Girja Shankar41, the Supreme Court referred to the
‘real danger’ principle while holding upholding a claim of bias against the appellant.
39
Ibid at 158.
40
AIR 1987 SC 454.
41
2001 (1) SCC 182.

12
Uniquely, Justice Banarjee’s use of the expression had more rhetorical force rather than any
doctrinal impact. The decision, conveniently ignored all important issue related to the ‘real
danger’ principle, like its emphasis on putting the reviewing judge in the shoes of the
reasonable person; but more importantly the decision also ignored the subsequent criticisms
made against the principle. The decision also underplays the dividing line between the
various tests, and deploys all the tests together without making it clear which particular test
the court was referring to. A passage of the decision which spells the real danger test is
framed in manner that makes it similar to the real likelihood test. The test, therefore, is as to
whether a mere apprehension of bias or there being a real danger of bias and it is on this score
that the surrounding circumstances must and ought to be collated and necessary conclusion
drawn therefrom - In the event however the conclusion is otherwise inescapable that there is
existing a real danger of bias, the administrative action cannot be sustained.42
Despite the absence any allegiance to any particular test, the Kumaon case is suggestive of
the direction in which bias jurisprudence is heading in India. While the Court’s indifference
to the different versions of the bias test cannot definitely be ignored, the Court’s remark on
the futility to ‘define or list the factors which may or may not give rise to a real danger of
bias’ actually makes a lot of sense. 43 As has been argued elsewhere, assessing the
circumstances alleged to be biased (through a fictional medium like the reasonable man) does
not always stand up to the goals it was meant to fulfil. Thus, taking up cases on a fact to fact
to basis, as suggested by the Court in the present case appears to be the best possible
recourse.
Coming back to the earlier point as to the confusion regarding the different tests existing in
India and the haphazard manner in which they have been deployed, there are some exceptions
which stand out.44 To take one example, the Supreme Court in Ranjit Thakur v. Union of
India45 (1987), while applying the real likelihood test, clearly elaborated the vantage point
from which bias has to be evaluated. Writing down for the Court, Justice held that: “The test
of real likelihood of bias is whether a reasonable person, in possession of relevant
information, would have thought that bias was likely and is whether respondent 4 was likely
to be disposed to decide the matter only in a particular way’. As to the tests of the likelihood
of bias what is relevant is the reasonableness of the apprehension in that regard in the mind
of the party. The proper approach for the Indian Judge is not to look at his own mind and ask
himself, however, honestly, "Am I biased?"; but to look at the mind of the party before him.”
(emphasis supplied)
A two-judge bench in Justice P.D. Dinakaran vs Hon'ble Judges Inquiry Committee 46, while
considering the question of recusal of one the Judges of the Inquiry Committee, made an
almost exhaustive analysis of the law of bias in the UK, Australia and India and extended its
support to the informed observer standard as enunciated by the Court of Appeal in In re
Medicaments and Related Classes of Goods47. Writing down for the Court Justice Singhvi,
observed: “However, the issue of bias of respondent No.3 has not to be seen from the view
point of this Court or for that matter the Committee. It has to be seen from the angle of a
reasonable, objective and informed person. What opinion he would form! It is his
apprehension which is of paramount importance. From the facts narrated in the earlier part
42
Ibid at 194.
43
Ibid at 169.
44
Secretary to Government, Transport Department v. Munuswamy Mudaliar, AIR 1988 SC 2232; Bihar State
Mineral Development Corporation v. Encon Builders (I) (P) Ltd., (2003) 7 SCC 418.
45
(1987) 4 SCC 611.
46
(2011) 8 SCC 474.
47
[2001] 1 WLR 700.

13
of the judgment it can be said that petitioner's apprehension of likelihood of bias against
respondent No.3 is reasonable and not fanciful, though, in fact, he may not be biased.”

14
 TYPES OF BIAS

Bias manifests itself variously and affects a decision in a variety of ways. It can broadly be
classified into six categories:
 Personal Bias
 Pecuniary Bias
 Subject Matter Bias
 Departmental Bias
 Preconceived Notion Bias
 Bias on Account of Obstinacy.
PERSONAL BIAS:
It arises out of the personal or professional relationship of friendship or hostility between the
authority and the parties. It’s the human nature that we try to give favourable decision to our
friends or relatives, whereas use the same as a weapon against the enemies.
Apex court’s decision in Mineral Development Corporation Ltd. V. State of Bihar 48, serves as
a good illustration on the point. Here, the petitioners were granted a mining lease for 99 years
in 1947. But in 1955, government quashed the license. The petitioners brought an action
against the minister passing this order on the behalf of government, on the ground that, the
petitioner in 1952 opposed the minister in General election. Therefore, on the account of
political rivalry, the minister passed such an order, and hence the order was suffered from
personal bias. Supreme Court found the allegation to be true and thus quashed the said order.
Similarly, in Baidyanath Mohapatra v. state of Orissa49, the Supreme Court quashed the
order of the tribunal confirming premature retirement on the ground that the chairman of the
tribunal was also a member of the review committee which had recommended premature
retirement.
PECUNIARY BIAS:
Any financial interest howsoever small it may be is bound to vitiate the administrative action.
The judicial opinion is unanimous as to it.
In R v. Hendon Rular District Council50, the court in England quashed the decision of the
planning commission, where one of the members was an estate agent who was acting for the
applicant to whom permission was granted.
In Jeejeebhoy v. Astt. Collector, Thana51 the CJ reconstituted the bench, when it was found
that one of the members of the bench was the member of the cooperative society for which
the land has been acquired.
But this rule is not applicable where the judge, though having a financial interest, has no
direct financial interest in the outcome of the case. this is evident from the Court of Appeal
decision in R v. Mulvihill52, where the court refused to set aside the conviction of an accused
on a charge of robbery in a bank on the ground that the trial judge had shares in that bank. In
such cases unless there is a likelihood of bias administrative action will not be quashed.
48
1960 SCR (2) 909.
49
AIR 1989 SCC 664.
50
1933 2KB 696 1.
51
1965 AIR (SC) 1096.
52
[2014] NSWSC 443.

15
SUBJECT MATTER BIAS:
The situations where the deciding officer is directly or indirectly in the subject matter of the
case. In R v. Deal Justices ex p. Curling53, the magistrate was not declared disqualified to try
a case of cruelty to an animal on the ground that he was a member of the royal society for the
prevention of cruelty to animals as this did not prove a real likelihood of bias.
The supreme court in cases like Murlidhar v. Kadam Singh54 and Sub-committee of Judicial
Accountability v. Union of India55, followed the same line. But in Gulla palli Nageshwara Rao
v. APSRTC56, the Supreme Court quashed the decision of A.P. Government. nationalizing
road transport on the ground that the secretary of the transport department who was given a
hearing was interested in the subject matter. It may be mentioned that in USA and England,
predisposition in favour of a policy in the public interest is not considered as legal bias
vitiating administrative actions.
DEPARTMENTAL BIAS:
The problem of departmental bias is something which is inherent in the administrative
process, and if it is not effectively checked, it may negate the very concept of fairness in the
administrative proceeding.
In Gullapalli Nageswara Rao v. APSRTC57 the order of the government nationalizing road
transport was challenged in this case. One of the grounds for challenge was that the Secretary
of the Transport Department who gave the hearing was biased, being the person who initiated
the scheme and also being the head of the department whose responsibility it was to execute
it. The court quashed the order on the ground that, under the circumstances, the Secretary was
biased, and hence no fair hearing could be expected.
The problem of departmental bias arises in different context- when the functions of judge and
prosecutor are combined in the same department. It is not uncommon to find that the same
department which initiates a matter also decides it, therefore, at times, departmental fraternity
and loyalty militates against the concept of fair hearing.
This problem came up before the Supreme Court in Hari v. Dy. Commr. of Police 58. In this
case an externment order was challenged on the ground that since the police department
which initiated the proceedings and the department which heard and decided the case were
the same, the element of departmental bias vitiated administrative action. The Court rejected
the challenge on the ground that so long as the two functions (initiation and decision) were
discharged by two separate officers, though they were affiliated to the same department, there
was no bias.
In Krishna Bus Service v. State of Haryana59, the Supreme Court quashed the notification of
the government which had conferred powers of a Deputy Superintendent of Police on the
General Manager, Haryana Roadways in matters of inspection of vehicles on the ground of
departmental bias.
The facts of this case were that some private bus operators had alleged that the General
Manager of Haryana Roadways who was the rival in business in the State could not be
expected to discharge his duties in a fair and reasonable manner and would be too lenient in
53
(1881) 45 LT 439.
54
10 ELR 126.
55
1991 SCR (2) 741.
56
AIR 1959 SC 308.
57
Ibid.
58
1956 AIR SC 559.
59
1985 SCR Supl. (2) 330.

16
inspecting the vehicles belonging to his own department. The reason for quashing the
notification according to the Supreme Court was the conflict between the duty and the
interest of the department and the consequential erosion of public confidence in
administrative justice.
PRECONCEIVED NOTION BIAS:
Bias arising out of preconceived notions is a very delicate problem of administrative law. On
the one hand, no judge as a human being is expected to sit as a blank sheet of paper, on the
other hand, preconceived notions would vitiate a fair trial. A classic case bringing this
problem to the forefront is Franklin v. Minister of Town and Country Planning known as
Stevenage60 case. In this case the appellant challenged the Stevenage New Town Designation
order, 1946 on the ground that no fair hearing was given because the minister had entertained
bias in his determination which was clear from his speech at Stevenage when he said, “I
want to carry out a daring exercise in town planning (jeers, catcalls, boos). It is no good
your jeering! It is going to be done.” Though the court did not accept the challenge on the
technical grounds that the minister in confirming the report was not performing any quasi-
judicial function, but the problem still remains that the bias arising from strong convictions as
to policy may operate as a more serious threat to fair action than any other single factor.
This point came up for consideration before the Supreme Court in T. Govindaraja Mudaliar
v. State of T.N.61, the government decided in principle to nationalize road transport and
appointed a committee to frame the scheme. The Home Secretary was made a member of this
committee. Later on, the scheme of nationalization was finalized, published and objections
were heard by the Home Secretary. It was contended that the hearing was vitiated by the rule
against bias because the Secretary had already made up his mind on the question of
nationalization as he was a member of the committee which took this policy decision. The
court rejected the challenge on the ground that the Secretary as a member of the committee
did not finally determine any issue as to foreclose his mind. He simply helped the
government in framing the scheme. Similarly, in Kondala Rao v. APSRTC62 the court did not
quash the nationalization of the road transport order of the Minister who had heard the
objections of private operators on the ground that the same Minister had presided over a
meeting only a few days earlier in which nationalization was favoured. The court rejected the
contention on the ground that the decision of the committee was not final and irrevocable”
but merely a policy decision.
The problem of bias arising from preconceived notions may have to be disposed of as an
inherent limitation of the administrative process. It is useless to accuse a public officer of bias
merely because he is predisposed in favour of some policy in the public interest.
BIAS BASED IN OBSTINACY:
The word Obstinacy implies unreasonable and unwavering persistence and the deciding
officer would not take no for an answer. This new category of bias was discovered in a
situation where a judge of the Calcutta High Court upheld his own judgment while sitting in
appeal against his own judgment. Of course, a direct violation of the rule that no judge can sit
in appeal against his own judgment is not possible, therefore, this rule can only be violated
indirectly. In this case in a fresh writ petition the judge validated his own order in an earlier
writ petition which had been overruled by the Division Bench. What applies to judicial
process can be applied to administrative process as well.

60
[1948] AC 87.
61
AIR 1973 SC 974.
62
AIR 1961 SC 82.

17
 THE INFORMED OBSERVER STANDARD

An important aspect of the controversy relating to the rule against bias is the search for a test
which can objectify the standard by which allegations of bias can be evaluated. The real
likelihood and the reasonable suspicion tests exemplify and, in a manner, mark the
culminating point of the standard. The question regarding personal bias can be approached
from two interrelated perspectives.
The first perspective brings to the fore the issue related to the view point from which
allegations of bias needs to be evaluated. How should the court approach any allegation of
apprehended bias, when it has nothing but only the circumstances to guide it in coming to a
decision? Should the court approach the matter in a courtish manner i.e. think dispassionately
and submerge private feeling on every aspect of a case.63 Or does the allegation of bias
(against an institutional agent which he himself is one) necessitate a modification in his usual
demeanour. As an important value of legal discourse, judicial impartiality is deeply rooted to
the notion of public confidence in the justice delivery system. It is in this notion of public
confidence that the rhetoric of “appearance” (of not being biased) is embedded, making it all
the more imperative for a standard to judge ‘appearances’. As Lord Justice-Clerk in
Davidson v. Scottish Ministers64 observed: “This being a question of public confidence in the
administration of justice, we are concerned with the appearance of things. The question has
to be decided from the standpoint of the onlooker rather than that of the judge whose
impartiality is in question.”65
Indeed, it is the line drawn between the judge and the onlooker (there are other versions of it),
as standpoint units, that has mapped the evolution of the rule against bias. The reviewing
judge in either case personifies the reasonable man or the quintessential ‘judge’; and how
either of them perceives the circumstances giving rise to the claim of bias.66
Critics have not always favoured the idea of ‘appearances’ being judged from the judge’s
point of view. The High Court of Australia, for example, has criticized the “real danger’s”
tendency to compare the judge with a reasonable person.67 As argued by the High Court, such
comparisons make the public a stranger to the judicial system, stultifying, in the process, their
ability to trust the justice delivery system.68 Moreover, leaving the matter to the
understanding of the judges makes the entire reviewing process both subjective and perhaps a
bit ad hoc at times. Indeed, for an issue that is so much entwined with the idea of procedural
fairness in decision making, inspiring public confidence in the judiciary is the key; and any
project that puts the entire arrangement at risk deserves criticism.69
This is not to claim however, that the alternative standard i.e. the reasonable person standard
provides for a perfect foil to the ‘judge’s point of view standard’. The viability of the
reasonable person standard has been a topic of intense debate amongst academicians and
judges alike.70 Olowofoyeku, for example as argued that “the Lords deciding the issues based

63
State of Punjab v. Davinder Pal Singh Bhullar, (2011) 14 SCC 770.
64
2002 SLT 420.
65
supra note 48 at 49.
66
Abimbola A. Olowofoyeku, Bias and the Informed Observer: A Call for a Return to Gough, The Cambridge
Law Journal, Vol. 68, No. 2 (Jul., 2009).
67
supra note 26 at 18.
68
Ibid.
69
Ibid.
70
supra note 50.

18
on their speculations as to the mind of a fictitious third party is unsatisfactory’. 71
Olowofoyeku’s argument centres around the idea that the decision of the highest court in the
land should not be based on what the court’s imagination of what a fictional character would
have thought.72 Olowofoyeku is particularly scathing of the ‘informed observer test.
Describing the ‘informed observer, Olowofoyeku remarks: “So the fabled informed observer
is a person out with the judiciary and even the legal profession - i.e., an ordinary member of
the public - to all intents and purposes, an invisible, ever-present lay member of the review
court.”
But how does the judge know how or what a reasonable person thinks in a given situation.
This is a difficult question and, perhaps even more difficult is to evaluate a particular
situation through the mind of a non-existent entity. The reasonable person standard was
introduced to make decision making more objective by preventing the predisposition of
judges from influencing the decision-making process. Also, it has symbolic importance in
that the construct is used to convince people that judicial deliberations are also inclusive of
the opinions of common people. The emphasis on maintaining people’s trust in the judicial
system is in truth a deliberate ploy to make people believe that they are participants in an
otherwise exclusive narrative of judicial decision making.
The truth, however, is that the idea of objectivity surrounding such fictional entities remains
largely a myth and the decision making through such mediums is as much subjective as
decision making by a subjective medium is (which in most cases is the view point by judges).
This particular aspect of ‘reasonable person’ standard has been taken to task by most
commentators, but the biggest criticism has been made against the ‘informed observer’
standard. In interpreting the level of ‘informedness’, of an informed commentator, judges
have attributed different level of qualifications to an informed observer. Sometimes this has
been carried such an extent that judges have imputed detailed knowledge about legal
procedures and other details which an informed observe cannot be expected to know.73 There
is an example of a case from Canada in which the Supreme Court of Canada has imputed the
observer with a “full knowledge of the Quebec municipal court system, including all of its
safeguards.”74
Olowofoyeku, questions the viability such fictional entities like the ‘reasonable man’, and
argues for empanelling ‘lay juries in bias cases’; or suggests completely doing away with the
‘middle man’ in dealing with bias cases.75 As a possible remedy he suggests using the
perspective of the reviewing court.76 The reasons he give for this relate basically to the
manner in which the ‘informed observer’ test has been used by the court, more particularly by
imputing highly specialized and technical knowledge to an informed observer, substitution in
the process the court’s own views for the views of the ‘informed observer’. 77 He argues that
decision making whether through the medium of a fictional entity or through the judge’s own
perspective ‘come down eventually to the value judgments of individual judges’. 78 Thus, he
argues that if matters were to return to the simplicity of judges ‘expressing their conclusions

71
Ibid at 389.
72
Ibid.
73
Taylor v. Williamson, [2002] EWCA Civ 1380; Hart v. Relentless Records Ltd, [2002] EWHC 1984.
74
R. v. Lippé, [1991] 2 SCR 114 at 152.
75
supra note 50 at 407.
76
Ibid.
77
supra note 50 at 407.
78
Ibid.

19
based on their assessment of facts’, much less would be wasted in speculating what a fictional
entity would have or have not thought in a given situation.79
It is for this reason that Olowofoyeku makes the case for taking back the test of bias once
again to the R v Gough standard. If it could be recalled, Gough, in evolving the ‘real danger’
standard dispensed off with the reasonable person standard in portraying the judges as
personifying the reasonable man. It may be easy to see why Olowofoyeku would make a
claim like that, but wouldn’t that be the cost of jeopardizing public trust in the judiciary, a
claim that was so poignantly made by the High Court of Australia in Webber. Perhaps not,
and Grover has a reason for that, if the picture of a court, personifying the reasonable man,
were anywhere closer to the image created by the Court of Appeal in Locabail (Locabail
(U.K.) Ltd. v. Bayfield Properties Ltd: “Provided that the court, personifying the reasonable
man, takes an approach which is based on broad common sense, without inappropriate
special knowledge, the minutiae of court procedure or other matters outside the ken of the
ordinary, reasonably well informed member of the public, there should be no risk that the
courts will not ensure both that justice is done and that it is perceived to be done.”80

79
R. v. Alan, [2007] EWCA Crim 299.
80
supra note 11 at 477.

20
 CONCLUSION

As pointed out earlier, bias jurisprudence in India has engaged in little deliberation on the
‘view point’ aspect of the rule against bias. Apart from Dinakaran, which engaged in an
exhaustive analysis of bias jurisprudence in the UK and Australia, such instances have been
very far and few in between. And even in cases, where such analysis was taken up, the Courts
have showed very little interest in aligning to a line of a reasoning that was particular to the
referred case.81 This, in turn has given birth to a bias jurisprudence that is distinct to India. It
is distinct, despite the common use of nomenclatures that are common to bias tests all over
the world – like real likelihood, reasonable apprehension or real danger to take some
examples – because bias jurisprudence in India has evolved an operational technique for each
test that are different from the original ones.
Factually speaking, bias jurisprudence in India has identified with a singular operational
technique that goes with any of the tests that may be referred to in any particular case. The
concept of real likelihood in India, for instance, is operated on the reasonable person
standard. This is in contrast to the real likelihood test as conceptualized by the courts in
England, where much of the emphasis is laid on the point of view of the judges. But such
misalignment notwithstanding – after all it could be overlooked as a semantic error – what
the courts have actually done is handled each case on a fact to fact basis with the reviewing
judges themselves evaluating the likelihood of bias in each given scenario. This may seem a
surprising conclusion, but an analysis of all the cases reported in the article shows that the
Supreme Court have never explained how a particular scenario amounted be biased from the
point of view of a reasonable person nor is there anything to suggest that the judges are
personifying the reasonable man. All the conclusions therein, whether of likelihood or of
reasonable suspicion, have been made by the judges themselves irrespective of the
nomenclatures used therein.

81
Reg. v. Bow Street Metropolitan Stipendiary Magistrate, Ex parte Pinochet Ugarte, 2000 (1) AC 119.

21
 REFERENCES

 Navin Sinha, The Rule Against Bias in India – A Comparative Analysis, Vol 5 Issue 1
IJLLJS ISSN:2348-8212.
 Neil Prapworth, “Constitutional and Administrative Law”, (Butterworths publication,
2000).
 B. Schwartz, “Administrative Law”, 4th edition, (Little Brown and co., 1994).
 I.P. Massey, “Administrative Law”, 6th edition, (Eastern Book and Co.,2007).

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