Pre Conceived Notion Bias

“Justice should not only be done, but also manifestly and undoubtedly seen to be done.”

-by Lord Chief Justice Hewart in R v Sussex Justices, Ex parte McCarthy [1]

The rule against bias has evolved from the principle of natural justice. ‘Natural justice’ has meant many things to many writers, lawyers, jurist and systems of law. Principle of natural justice is not a new age defined term but it has been part of our civilization for a long time now. With the advancement of the civilization our lives have started to be more dominated by rule of law, rather than law of nature. Natural justice is another name for commonsensical justice. These principles are not limited to formulas, they are not codified. But they are just part of the human ethnics. Like, it is a known to human conscience that a man cannot get benefit from his own wrong. For example, if a man killed his father for the property for himself, he cannot be pardoned. Such principles are not codified in books and into formulas; they are just embedded in the conscience of man. Justice is substantially based on natural ideas and values which are universal in nature. Thus it could be further inferred that natural justice is all about fairness, reasonableness, equity and equality.

Lord Harman, in Byrne v. Kinemetograph Renters Society Ltd [2] said that, “what, then, are the requirements of natural justice in a case of this kind? First, I think that the person accused should know the nature of the accusation made; secondly, that he should be given an opportunity to state his case; and thirdly, of course, the tribunal should act in good faith. I do not think that there really is anything more.” (emphasis supplied)

In India similarly there is no statute laying down the minimum procedure which administrative agencies must follow while exercising decision-making powers [3] . In Union of India v. P. K. Roy [4] , Ramaswami J. for the Supreme Court observed: “the extent and application of the doctrine of natural justice cannot be imprisoned within the straight-jacket of a rigid formula. The application of the doctrine depends upon the nature of the jurisdiction conferred on the administrative authority, upon the character of the rights of the persons affected, the scheme and policy of the statute and other relevant circumstances disclosed in the particular case.”

English law recognizes two principles of natural justice [5] :

Nemo debet esse judex in propria causa: no man shall be a judge in his own cause. This would mean that the deciding authority must be impartial and without bias.

Audi alteram partem: hear the other side, or both the sides must be heard. No man should be condemned unheard, or that there must be fairness on the part of the deciding authority.

The Rule Against Bias

The word ‘bias’ as a noun is derived from the French word, biais meaning oblique as opposed to straight. The English term ‘bias’ has reference to the game of bowls wherein it means the weight on one side of a bowl, which gives it a tendency to diverge from straight line when running [6] . Hence the word has come to mean prejudice, show of favor or disfavor; antagonism, spite, hostility, prepossession that sways the mind. In the widest term, 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 appearance of so doing –will invalidate a judicial and quasi-judicial determination [7] .

The rule against biased is based on maxims

“No man shall be a judge in his own cause” [8]

“justice should not only be done, but manifestly and undoubtedly be seen to have been done” [9]

The first requirement of natural justice is that the judge should be impartial and neutral and must be free from bias. He is supposed to be indifferent to the parties to the controversy. He cannot act as judge of a cause in which he himself has some interest either pecuniary or otherwise as it affords the strongest proof against neutrality. He must be in a position to act judicially and to decide the matter objectively. A judge cannot his personal prejudice to go into the decision making. If the judge is subject to bias in favor of or against either party to the dispute or is in a position that a bias can be assumed, he is disqualified to act as a judge, and the proceedings will be vitiated. This rule applies to the judicial and administrative authorities required to act judicially or quasi-judicially [10] .

Scope of Law Of Bias [11]

The law of bias is only pertinent to:

Judicial tribunals, that is courts of law

Quasi-judicial or domestic tribunals

Government, ministers of government, administrative officers of government when exercising a discretionary power vested in them by law

Local authorities and other bodies when exercising a similar discretion

There are five different kinds of bias. They are as following:

Personal bias

Pecuniary bias

Subject-matter bias

Official or departmental bias

Pre-conceived notion bias

In the first chapter the researcher shall discuss the pre-conceived notion bias pertaining to the project topic. And in the second chapter the researcher’s endeavor would be to do a comparative study of pre-conceived notion bias to other biases in the administrative law. The project would basically deal with the cases and analysis relating to the quasi-judicial functions.

Chapter I: Pre-Conceived Notion Bias

This form of bias is quite uncommon and difficult to prove. It is indeed a very delicate problem of administrative law. The judges are expected to be like a clean slate but sometimes preconceived notion could vitiate the standard of even handed justice.

In Franklin and others v. Minister of Town and Country Planning [12] , the facts of which were that the Minister of Town and Country Planning had chosen Stevanage as the site for a proposed new town to be established under the New Towns Act, 1964. Section 1(1) of it provided, “if the minister is satisfied, after consultation with any local authorities who appear to him to be concerned, that it is expedient in the national interest that any area of land should be developed as a new town under this act, he may make an order designating that area as the site of the proposed new town”. According to the first schedule to the act, minister was required to publish a draft of the order. It was further provided: “if any objection is duly made to the proposed order and is not withdrawn, the minister shall, before making the order, cause a public enquiry to be held with respect thereto, and shall consider the report of the person by whom the enquiry was held.” There were objections which were duly enquired into thereafter the minister confirmed the order. The objectors then moved to the court for quashing the order on the following grounds:

Before considering their objections, the minister has said that he would make the order and this had biased him in considering the objections.

The act impliedly required the minister to consider the objections fairly and properly and to give a fair result to that consideration. This he had not done, as was clear from the under noted facts:

The minister had made a public speech even before the act was passed that Stevanage will be the first new town. He had remarked amidst the crowd saying that he would make it happen.

He had further written to the objectors that he had decided to go ahead with the order, even though he had not determined about the water supply, sewage disposal, etc. which were raised as grounds in the objections.

Upon these facts Hern Collins, J, held that all this clearly showed that the minister was biased and had predetermined the issue before hearing the objections that the minister acted quasi-judicially; consequently the order was quashed. The court of appeal reversed the decision as no bias was established and the objections merely indicated the difficulties ahead and the great expense involved. The objectors appealed to the House of Lords, but were unsuccessful on the ground given by Lord Thankerton:

“In my opinion no judicial or quasi judicial duty was imposed on the respondent, and any reference to judicial duty or bias reference to judicial duty or bias is irrelevant in the present case.”

As to bias it is true that a judge should have no bias but here in this case the minister’s strong words, when the public jeered him, were spoken as an administrator and in no way was he affecting the statutory duty he was discharging after the act was passed.

Thus it could be seen that such a bias is difficult to put forward because it is very difficult to read a man’s mind. What the judge could be thinking, no one knows. If there is a pre-conceived notion in a man’s mind it is impossible to find out. For example, a judge was brought up a single mother and in his whole life he has never seen his father. In such a case a man might develop hatred against other men who are disrespectful of women. And thus, whenever he decides a case, they are always favoring the woman. In such a situation, it would be very difficult to know these pre-conceived notions in his mind.

There is another Indian case almost in the same line namely, T. Govindaraja Mudaliar v. State of Tamil Nadu [13] , there was a nationalization scheme to nationalize the roads after the private operators expire. And an ad hoc committee was eventually set up to frame the scheme. It was provided that the powers and functions with the state Transport undertaking could be exercised by the secretary to the Government of Madras in the Industries, Labour and Housing Department on behalf of the State Government. Thus the home secretary was made a member of the committee. After the committee came up with a report the private operators were allowed to object. Under the scheme the home secretary was authorized to look into the objections by the private operators. According to the appellants, the home secretary was acting as a quasi-judicial tribunal. Since he was a member of the committee which had made the scheme that got published therefore the appellants contended that the home secretary acted as a judge in his own cause. In short, he participated in the policy decision of the government and then he exercised the power of hearing objections and considering the merits of scheme. This was suggested as wholly contrary to the rules of natural justice and the home secretary being vitiated by bias.

So the Supreme Court finally held that the home secretary only being a member of the committee didn’t have the power to finalize the scheme. He was merely helping the government frame the scheme.

It is not possible for a judge to have no preconceived notions, but then at the same time he has to be fair and unbiased. Thus, it is very important for the judge to have a balance between the two. And that is why it is really difficult to prove. Unless preconceived notion has the capacity to foreclose the mind of the judge, action is not vitiated.

In a similar case called the Dosa Satyanarayanamurty etc. V. The Andhra Pradesh State Road Transport Corporation [14] , it was contended by the appellants that the government is actuated by bias against the private operators and indeed had pre-determined the issue. In the petitions it was alleged that the government has complete control over the Road Transport Corporation, that the entire administration had control over such roads transport undertaking vested in the government, that the Chief Secretary to the Government of Andra Pradesh was its chairman and that, therefore, the entire scheme, from its inception to its final approval, was really the act of the government. On this hypothesis it was contended that the government itself was made a judge in his own cause and that, therefore, its decision was vitiated by legal bias. When the private operators had sent the objections the government was predetermined to follow the scheme and thus vitiated from being fair.

But, the court eventually rejected the contention on the ground that the decision of the committee was not “final and irrevocable” but merely a policy decision and in the circumstances could only mean that sub-committee advised the State Government to implement the policy of nationalisation in that particular district. The said decision could not either expressly or by necessary implication involve a predetermination of the issue.

Lord Devlin once said, “The judge who is confident that he has no prejudices at all is almost certain to be a bad judge. Prejudice cannot be exorcised, but like a weakness of the flesh it can be subdued. But it has to be detected.” [15]

Preconceived notion is very inherent in a judge’s mind. We are born with dispositions. Thus it is very different from the other biases in the administrative law. In the next chapter the researcher shall do a comparative study of preconceived notion and other kinds of biases.

Chapter II: A Comparative Study

PERSONAL BIAS AND PRECONCEIVED NOTION BIAS

A number of circumstances may give rise to personal bias. Here a judge may be a relative, friend or business associate of a party. He may have some personal grudge, enmity or grievance or professional rivalry against such party. Of all type of bias, personal bias is the most demonstrable. Thus, if a party to dispute is a near relation of the deciding authority, the latter is disqualified from deciding it on the ground of personal bias.

In a leading case of A.K. Kraipak V. Union of India [16] , it was held 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. (emphasis supplied)

Thus we can infer that personal bias is easier to prove than preconceived notion bias. And personal bias is basically when the prosecution can prove that there is some kind of relation with one of parties which is either a friendly kind or an enmity.

PECUNIARY AND PRECONCEIVED NOTION BIAS

Pecuniary bias arises from the fact that the deciding authority has a monetary interest in the dispute. In Dr. Bonham case [17] , Dr. Bonham, a doctor of Cambridge University was fined by the College of Physicians or practicing in the city of London without the license of the College. The statute, under which the college acted, provided that the fines should go half to the king and half to the college. The claim was disallowed by Coke, C.J. as the College had a financial interest in its own judgment and was a judge in its own cause.

“It is obvious that pecuniary interest however small it may be in a subject-matter of the proceedings, would wholly disqualify a member from acting as a judge.” [18]

Thus, it could be deduced that pecuniary is only when there is some monetary as part of the subject. This bias is easier to prove as the burden of proof is way less than preconceived notion bias.

SUBJECT MATTER AND PRECONCEIVED NOTION BIAS

Bias of the subject matter also is a disabling bias. Generally speaking, this type of bias only rarely invalidates a judicial or quasi-judicial proceeding. Such a bias occur when the directing officer is directly or indirectly involved with the subject matter. There must be some direct connection with the litigation.

In the leading case of A. K. Kraipak V. Union of India [19] , one A was a candidate for selection to the Indian Foreign Service and was also a member of the Selection Board. A did not sit on the Board when his own name was considered. Name of A was recommended by the board and he was selected by the Public Service Commission. The candidates who were not selected filed a writ petition for quashing the selection of A on the ground that the principles of natural justice were violated. The court quashed the selection and held at every stage of his participation in deliberations of the selection board there was a conflict between his interest and duty. Under those circumstances it is difficult to believe that he could be impartial. 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. (emphasized supplied)

In an another case the Supreme Court quashed the decision of the Andra Pradesh Government for the nationalization of roads as it was clear that the secretary who was suppose to look into the objections was biased. And thus bias was proved [20] . Thus, it could be concurred that beneficiary of a person in subject matter is important. It is not that difficult to prove as compared to pre conceived notion bias. To prove that the judge is biased you need to establish the judge’s interest in the subject matter.

OFFICIAL OR DEPARTMENTAL BIAS AND PRECONCEIVED NOTION BIAS

Wade remarks that ministerial or departmental policy cannot be regarded as a disqualifying bias [21] . Suppose a Minister is empowered to frame a scheme after hearing the objections is subject to the principles of natural justice insofar as they require a fair hearing. The problem of official bias also arises in a 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 [22] . Unlike preconceived bias the burden of proof in departmental bias is less. Though, it is not very easy to prove, as a direct interest has to be proven in the subject matter of the case [23] .

Conclusion

The researcher has discussed all kinds of bias in shortly. And it could be seen that not all kind of bias vitiate an administrative action. If the bias is rational and not justified by enough consideration of rational interest, personal or otherwise, it may not vitiate the decision. And obviously there must be real likelihood of bias and not just mere suspicion. The work of the court is to not see if there is bias but to look into a judge’s mind and see if there is real likelihood of bias because a man’s mind is impossible to judge. Therefore the test is actually what appeared to have happened and not what actually happened.

Preconceived notion bias has the highest burden of proof as the researcher has proved above with substantial amount of cases. This bias is the most difficult bias to prove among all the other bias.

It is to be added, however, that this bias is founded on the broader interests of the public in general because it is meant to root out corruption from the public services. The public good is thus, the justification for this legislative toleration of bias.