REPORTABLE

IN THE SUPREME COURT OF INDIA CIVIL ORIGINAL JURISDICTION

WRIT PETITION (CIVIL) NO.217 OF 2011

Justice P.D. Dinakaran … Petitioner  

Versus

Hon’ble Judges Inquiry Committee and others … Respondents

J U D G M E N T

G.S. Singhvi, J.

1. Although, the prayers made in this petition filed under Article 32 of  

the  Constitution  are  for  quashing  order  dated  24.4.2011  passed  by  the  

Committee  constituted  by  the  Chairman of  the  Council  of  States  (Rajya  

Sabha) under Section 3(2) of the Judges (Inquiry) Act, 1968 (for short, “the  

Act”) and for grant of a declaration that the proceedings conducted by the  

Committee  on  24.4.2011 are  null  and void,  the  tenor  of  the  grounds  on  

which these prayers are founded shows that the petitioner is also aggrieved  

by  the  inclusion  of  respondent  No.3-Shri  P.P.  Rao,  Senior  Advocate,  

Supreme Court of India in the Committee under Section 3(2)(c) of the Act.

2. Fifty members of the Rajya Sabha submitted a notice of motion for  

presenting an address to the President of India for removal of the petitioner,  

who was then posted as Chief Justice of the Karnataka High Court, under  

Article 217 read with Article 124(4) of the Constitution of India.  The notice  

enumerated the acts of misbehaviour allegedly committed by the petitioner  

and was accompanied by an explanatory note and documents in support of  

the allegations.  After the motion was admitted, the Chairman of the Rajya  

Sabha (hereinafter referred to as, “the Chairman”) constituted a Committee  

comprising Mr. Justice V.S. Sirpurkar, Judge, Supreme Court of India, Mr.  

Justice A.R. Dave, the then Chief Justice of Andhra Pradesh High Court and  

respondent No.3.   

3. Immediately after issue of notification dated 15.1.2010 under Section  

3(2) of the Act, the newspapers carried reports suggesting that there was an  

objection  to  the  inclusion  of  respondent  No.3  in  the  Committee  on  the  

ground that he had given legal opinion to the petitioner in December, 2009.  

On  reading  the  newspaper  reports,  respondent  No.3  sent  letter  dated  

19.1.2010 to the Chairman with the request that he may be relieved from the  

Committee.  Paragraph 2 of that letter reads as under:

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“Although, there is no conflict of duty and interest, as I did not  render any professional service to him, there is a demand from  certain quarters for my recusal which you might have noticed in  today’s Hindustan Times.  I am sure you will appreciate that  justice should not only be done but also seen to be done.  Even  though  I  have  no  official  communication  as  yet  about  my  nomination,  it  will  not  be  proper  for  me  to  function  as  a  member  of  the  Committee  in  the  fact  of  such  objection.   I  request  you  to  kindly  relieve  me  forthwith  and  nominate  another jurist in my place and oblige.”  

4. After due consideration, the Chairman declined to accept the request  

of respondent No.3 and asked him to continue as member of the Committee.  

Thereupon, respondent No.3 sent letter dated 21.1.2010 and agreed to accept  

the assignment.   On that very day, Convenor of the Campaign for Judicial  

Accountability  and Reform sent  a  letter  to  the  Vice-President  wherein  a  

demand was made in the garb of making suggestion that Mr. Justice V.S.  

Sirpurkar  should  recuse  from the  Committee  because  he  had association  

with the petitioner as a Judge of the Madras High Court from 1997 to 2003.  

Similar suggestion-cum-demand was made qua respondent No.3 by stating  

that the petitioner had consulted respondent No.3 and the latter had advised  

him to get a commission of inquiry appointed to go into the charges.  

5. On being instructed by the Chairman, the Secretary General of the  

Rajya Sabha forwarded a copy of the aforesaid letter to respondent No.3.  In  

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his response dated 27.1.2010, respondent No.3 detailed the background in  

which the petitioner had met him on 6.12.2009 and what transpired between  

them.  The relevant paragraphs of that letter read as under:

“I  would  like  to  place  on  record  as  to  why  Chief  Justice  Dinakaran met me at my residence with prior appointment on  Sunday, the 6th December, 2009 at 02:30 p.m.   On Saturday, 28  Nov ’09, there was a day-long National Seminar organized by  The Bar Association of India under the Presidentship of Shri  F.S. Nariman to discuss the problems of the Judiciary, in which  the  Hon’ble  Law  Minister  also  participated  briefly  in  the  inaugural  session.   I  am one  of  the  Vice-Presidents.   In  the  course of my speech, I demanded that the Collegium should not  proceed further with the recommendation to bring Chief Justice  P.D.  Dinakaran to  the  Supreme Court  and there should be a  public  inquiry  in  which  Chief  Justice  Dinkaran  should  clear  himself of the charges levelled against by senior members of  the Bar and during the inquiry, he should step down from his  office and remain on leave.  Many eminent members of the Bar  including two former Attorney Generals for India namely, Shri  Soli J. Sorabjee and Shri Ashok Desai, a former President of  International Bar Association namely Shri RKP Shankar Dass  and a former President of Law Asia namely, Shri Anil Divan,  who  participated  in  the  seminar  expressed  the  same  view.  Finally, on the request of the President of Bar Association of  India, I drafted the Resolution which was touched up by him  before it was passed unanimously by the members present.

The  speeches  made  at  the  seminar,  including  mine,  were  reported in the media.   In  the  following week,  Chief  Justice  Dinakaran visited Delhi, presumably to meet the Chief Justice  of India, members of the Collegium and others.  While in Delhi,  he telephoned to  me saying  that  he  was  surprised  that  I  too  believed that he was guilty of the charges levelled against him  and he  would  like  to  meet  me personally.   When the  Chief  Justice  of  a  High  Court  seeks  appointment,  it  would  be  improper for any member of the legal profession to refuse it.  When he met me on December 06, 2009 I told him that when  

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serious  allegations  had  been  made  against  him  by  senior  members  of  the  Bar  practicing  at  Chennai,  Bangalore  and  Delhi,  it  was  proper  that  there  should  be  a  public  inquiry.  When  he  said  that  he  was  totally  innocent  and  he  could  convince me about it, I told him politely that he has to convince  those who made the allegations on some basis and that will be  possible only in a public inquiry.  It was then I suggested that if  he was innocent, he should himself invite an inquiry under the  Commissions  of  Inquiry  Act,  1952  and  offer  to  proceed  on  leave during the Inquiry.  There was neither consultation on the  merits of the charges nor any opinion sought or given.  He did  not  seek  my professional  services  for  his  case.   The  matter  ended there.  What I told him in private when he met me at my  residence  was  nothing  but  what  I  had  earlier  demanded  in  public  at  the  seminar.   There  is  absolutely  no  question  of  conflict of interest and duty in such a case.  When the Hon’ble  Chairman of Rajya Sabha, after due consideration of my offer  to quit, requested me to continue, I accepted the request most  respectfully as it is a call to public duty from no less a person  than the Vice-President of India, which I shall not shirk.”

6. On  12.5.2010,  the  petitioner  suo  moto  sent  a  letter  to  the  Vice-

President of India and Chairman, Rajya Sabha stating therein that through  

print and electronic media he had come to know about constitution of the  

Committee under Section 3(2) of the Act.  The petitioner claimed that the  

allegations  levelled  against  him  were  false  and  baseless.   He  expressed  

anguish on being prevented from performing his judicial work and prayed  

that the inquiry initiated against him may be completed expeditiously and  

his grievance be redressed at the earliest.  For the sake of reference, letter  

dated 12.5.2010 is reproduced below:

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“ 12th May, 2010 The Hon’ble Vice President of India and Chairman, Rajya Sabha Parliament New Delhi

Your Excellency,

May I take this opportunity to present this supplication  for kind consideration of Your Excellency.

2. Even though I have learnt  through print  and electronic  media that an impeachment motion has been moved against me  under Article 217 read with 124(4) of the Constitution of India  before the Rajya Sabha by 75 Hon’ble Members of Parliament,  as  on  date,  I  have  not  received  any  official  communication  whatsoever in this regard till date.

3. I have also learnt through print and electronic media that  a Committee, as contemplated under Section 3(b) of The Judges  (Inquiry) Act, 1968, has been constituted by Your Excellency  consisting  of  Hon’ble  Mr.  Justice  V.S.  Sirpurkar,  Judge,  Supreme Court of India;  Hon’ble Mr. Justice A.R. Dave, the  then Chief Justice,  Andhra Pradesh High Court and Mr. P.P.  Rao, Senior Advocate, Jurist, in January, 2010, but till date I  have not officially heard anything in this connection to enable  me to explain my case.   Now that  Mr. Justice A.R. Dave is  elevated to the Supreme Court of India, the Committee requires  to be reconstituted.

4. In  the  meanwhile,  the  print  and  electronic  media  had  given  wild  publicity  about  the  allegations  made  against  me,  causing irreparable damage to me and to my family personally  and  to  the  constitutional  position  I  am  holding.   All  the  allegations  are  made  with  an  ulterior  motive  to  stall  my  elevation to the Supreme Court, when the Hon’ble collegium of  the Supreme Court recommended my name for elevating me to  Supreme Court.

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5. It appears that Hon’ble Rajya Sabha Members have been  misled  by  the  reports  of  the  District  Collector,  Thiruvallur,  State  of  Tamil  Nadu  dated  8th,  10th and  15th October,  2009  stating that myself and my wife have encroached 199.53 acres  of  lands  at  Kaverirajapuram,  Tiruttani  Taluk,  Thiruvallur  District, State of Tamil Nadu.  As the said reports of the District  Collector were specifically denied by me as baseless, the matter  was referred to a Committee under the Chairmanship of Major  General  (Dr.)  Siva  Kumar,  Survey  of  India,  Department  of  Science  and  Technology,  who,  ultimately  on  15th February,  2010, produced a survey map to my wife, Dr. K.M. Vinodhini  Dinakaran,  holding  that  there  is  no  encroachment  of  any  government/public lands either by me or by my wife.   

6. All  the  allegations  leveled  against  me  are  false  and  baseless.

7. Myself and my family members are humiliated and put  into great hardship by the vested interest persons; and I have  been  prevented  to  discharge  my  obligations  under  the  constitution to perform the judicial work, pending enquiry by  the Committee.  But,  the enquiry is yet to commence.  Your  Excellency  may  kindly  appreciate  that  the  enquiry  initiated  against me cannot be an endless wait.

Having patiently waited all these days for an opportunity  to explain my case that the allegations are baseless and there is  no  material  and  merit  whatsoever,  I  earnestly  request  Your  Excellency to  do the  needful,  so  that,  my genuine grievance  may kindly be redressed at the earliest and justice be rendered  to me expeditiously.

With kind regards, Yours sincerely,

Sd/-          [P.D. Dinakaran]”

             (emphasis supplied)

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7. In the meanwhile, Mr. Justice A.R. Dave, Chief Justice of the Andhra  

Pradesh High Court,  was transferred to the Bombay High Court and was  

then elevated as Judge of this Court and in his place Mr. Justice J.S. Khehar,  

Chief Justice of the Uttarakhand High Court was included in the Committee.  

In September, 2010, Mr. Justice Aftab Alam, Judge, Supreme Court of India  

was  appointed  as  Presiding  Officer  because  Mr.  Justice  V.S.  Sirpurkar  

recused from the Committee.  

8. After about two months of the aforesaid development, the petitioner’s  

wife, Dr. (Mrs.) K.M. Vinodhini Dinakaran, sent letter dated 27.11.2010 to  

the Presiding Officer and the members of the Committee with the request  

that investigation into the allegations levelled against her husband should be  

got done through unbiased officials.  This request was made in the context of  

some  inquiry  having  been  made  by  Mr.  Govindswamy,  Village  

Administrative Officer,  Kaverirajapuram Village,  Tiruttani  Taluk and Mr.  

Veeraraghavan,  former  Tahasildar  Tiruttani.   She  claimed  that  both  the  

officials  were  in  collusion  with  the  then  District  Collector,  Mr.  Palani  

Kumar  IAS,  who was inimical  to  the  petitioner.   She  requested  that  the  

investigating  agency  should  not  engage  Mr.  Govindswamy  and  Mr.  

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Veeraraghavan  because  they  had already  acted  with  mala  fides  and bias  

against her family.   

9. After  preliminary  scrutiny  of  the  material  placed  before  it,  which  

included  documents  summoned  from  Government  departments  and  

agencies/instrumentalities  of the State,  the Committee  issued notice dated  

16.3.2011,  which was served upon the petitioner  on 23.3.2011,  requiring  

him  to  appear  on  9.4.2011  to  answer  the  charges.   The  notice  was  

accompanied  by  a  statement  of  charges  and  lists  of  the  documents  and  

witnesses.   

10. Upon  receiving  the  notice,  the  petitioner  submitted  representation  

dated  8.4.2011  to  the  Vice-President  of  India  and  the  Chairman,  Rajya  

Sabha with  the  prayer  that  the  order  admitting notice  of  motion may be  

withdrawn, the order constituting the Inquiry Committee be rescinded and  

notice issued by the Committee may be annulled.  In that representation, the  

petitioner,  for  the  first  time,  raised  an  objection  against  the  inclusion  of  

respondent No.3 in the Committee by alleging that the latter  had already  

expressed views in the matter and declared him guilty of certain charges.  

The  petitioner  claimed that  respondent  No.3  had led  a  delegation  of  the  

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advocates to meet the then Chief Justice of India and was a signatory to the  

representation  made  by  the  senior  advocates  against  his  elevation  to  the  

Supreme Court.  The petitioner further claimed that he felt agitated by the  

attitude of respondent No.3 because earlier the said respondent had not only  

appreciated  his  work  but  even  called  upon  him  to  communicate  his  

appreciation and also sent congratulatory message on his name being cleared  

for elevation to the Supreme Court.  The petitioner also stated that he along  

with  his  wife  and  one  K.  Venkatasubbaraju  met  respondent  No.3  at  his  

residence and, during the meeting, respondent No.3 admitted that he was  

misled by certain vested interest in signing the representation.  Paragraphs 6,  

7 and 8 of the letter written by the petitioner are reproduced below:

“6. Once  I  came  to  know  that  Shri  P.P.  Rao  has  led  the  delegation against me demanding that I should not be elevated, I  was agitated by this attitude of Shri P.P. Rao.  Earlier Shri P.P.  Rao  had always  appreciated  my work  on the  bench and even  called on me to communicate the same.   When I was a judge of  the High Court of Judicature at Madras, Shri P.P. Rao called on  me and appreciated my work as Judge.  He also paid encomiums  for my bold and independent approach.  Soon after my name was  considered  and cleared  for  elevation  to  the  Supreme Court  of  India Shri P.P. Rao congratulated me in writing.  Therefore, I I  was aghast when I learnt about his opposition to my elevation.  Shri K. Venkatasubbaraju, an Advocate who is a common friend  of both of us spoke to Shri P.P. Rao and arranged for a meeting  between us.  Accordingly, I along with Shri K. Venkatasubbaraju  accompanied by my wife called on Shri P.P. Rao at his residence  and confronted him with the newspaper reports.  Shri P.P. Rao  admitted that he was misled by certain vested interests in signing  the petition against me he even went to the extent of saying that  

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he  was  forced  to  sign  the  petition  as  an  office  bearer  of  the  Association.  In the light of the said explanation I though it fit to  leave the matter at that.

7. In  the  meanwhile  I  was  shocked to  see  Shri  P.P.  Rao’s  name  included  in  the  Committee  constituted  under  the  Chairmanship  of  Hon’ble  Mr.  Justice  V.S.  Sirpurkar.   Even  before I could react to that the very same vested interests, who  are  instrumental  in  engineering  false  allegations  against  me,  opposed  the  constitution  of  the  said  Committee.   They  took  specific  objection  to  the  inclusion  of  Shri  P.P.  Rao  in  the  Committee while objecting to the appointment of the Chairman.  It was on such opposition that Hon’ble Mr. Justice V.S. Sirpurkar  resigned as the Chairman of the Committee.   Following suit,  I  expected,  keeping  in  mind  Shri  P.P.  Rao’s  standing  and  reputation, that Shri P.P. Rao would also quit the Committee.

8. In  this  background,  it  is  clear  that  Shri  P.P.  Rao  has  already  declared  me  guilty  of  certain  charges  on  the  basis  of  which he opposed my elevation to Apex Court tooth and nail.  It  is  a  travesty  of  justice  that  the  Judges Inquiry Committee  has  been  so  constituted  with  the  same  Shri  P.P.  Rao  as  a  sitting  member of the said Committee.  This is opposed to all principles  of  justice  and  rule  of  law.   It  is,  in  these  circumstances,  this  petition  is  presented  on  the  following  amongst  the  other  grounds.”

 (emphasis supplied)

11. On  the  next  day,  i.e.,  9.4.2011,  the  petitioner  sent  a  letter  to  the  

Presiding Officer of the Committee enclosing a copy of the representation  

submitted  to  the  Chairman  and  requested  that  decision  on  the  same  be  

awaited.  On 20.4.2011, the petitioner made an application to the Committee  

and raised several objections against notice dated 16.3.2011 including the  

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one  that  respondent  No.3  was  biased  against  him.  After  two  days,  

respondent No.3 sent letter dated 22.4.2011 to the Presiding Officer of the  

Committee and reiterated all that he had said in letter dated 27.1.2010 but, at  

the same time, respondent No.3 specifically denied that he had pronounced  

upon  the  guilt  of  the  petitioner.  He  also  denied  that  the  petitioner  had  

consulted him or that any opinion was sought and given.  Respondent No.3  

acknowledged that when news appeared about the petitioner’s name having  

been cleared for elevation to the Supreme Court, he had congratulated him  

vide e-mail dated 30.8.2009,  referred to letter dated 19.1.2010 addressed to  

the  Chairman  and  indicated  that  it  was  his  duty  to  recuse  from  the  

membership  of  the  Committee  once again.   Respondent  No.3 prepared a  

similar letter for being sent to the Chairman, but on being advised by the  

Presiding Officer of the Committee, he held back the same.

12. After  considering  the  objections  of  the  petitioner,  the  Committee  

(respondent No.3 did not take part in the proceedings) passed detailed order  

dated 24.4.2011, the relevant portions of which are extracted below:

“According  to  the  applicant,  earlier  when  his  name  was  recommended  for  appointment  as  a  Judge  of  the  Supreme  Court, Mr. P.P. Rao had led a delegation of lawyers to the then  Chief  Justice  of  India  to  hand  over  a  petition  opposing  his  elevation to the Supreme Court. He was one of the signatories  to the representation handed over to the then Chief Justice of  

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India urging him not to elevate the applicant as a Judge of the  Supreme  Court.  He  was  one  of  the  speakers  in  a  seminar  organized by the  Bar  Council  of  India  urging the authorities  against the elevation of the applicant as a Judge of the Supreme  Court.  Mr.  Rao  was  one  of  the  leading  personalities  spearheading the campaign against his elevation to the Supreme  Court. On those allegations, the applicant states that he does not  expect  a  just  and  fair  inquiry  with  Mr.  P.P.  Rao,  being  a  member of the Committee.

Mr.  P.P.  Rao  has  the  distinction  that  his  presence  on  the  Committee  has been, at one time or the other, objected to by  both sides and perhaps this  alone, apart from anything, else is  sufficient to confirm his impartiality.

It may be recalled that at the very inception of the Committee,  Shri   Prashant  Bhushan,  on behalf  of one of  the groups that  were  agitating  against   the  recommendation  for  Justice  Dinakaran's appointment as a judge of the Supreme Court and  were demanding an enquiry for his removal as a judge of the  High Court  addressed a letter  to the  Chairman,  Rajya Sabha  objecting to the inclusion of Mr. P.P. Rao on the Committee.  The objection was based on the ground that  even before the  notice of motion was presented in the Rajya Sabha, leading to  the formation of the Committee, and while the demand to hold  an  enquiry  against  the  judge  was  still  gaining  ground  Mr.  Justice P.D. Dinakaran had met and consulted Mr. Rao in the  matter. On that occasion Mr. Rao had made an offer to quit the  Committee but his offer was not accepted by the Chairman. As  the Committee proceeded with its work, with Mr. Rao as one of  its  members,  there  was  no  complaint  or  objection  from any  quarter. All the misgivings were satisfied and the groups and  organizations that might be called as the initial whistle-blowers  appear to be quite comfortable with Mr. Rao on the Committee.

Now the objection has come from the side of the Judge whose  conduct is the subject of enquiry.

The earlier objection was completely misconceived and without  basis but it did not have any ulterior motive. Unfortunately the  

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same can not be said about the present objection. It is clearly an  after thought and has an oblique motive.  

The  applicant  was  aware  that  Mr.  Rao  is  a  member  of  the  Committee from the day one. As early as on May 12, 2010, he  had addressed a letter to the Chairman, Rajya Sabha urging him  to have the proceedings before the Committee expedited. In the  letter, he mentioned the names of each of the three members of  the Committee, as it was in existence at that time, including Mr.  P.P. Rao, Senior Advocate but there is not a whisper of protest  against Mr. Rao's inclusion in the Committee. Paragraph 3 of  the letter reads as follows:-

“I have also learnt through print and electronic media that  a  Committee,  as  contemplated  under  Section  3(b)  of  [The] Judges (Inquiry) Act, 1968, has been constituted by  Your Excellency consisting of Hon'ble Mr. Justice V.S.  Sirpurkar, Judge, Supreme Count of India; Hon'ble Mr.  Justice  A.R.  Dave,  the  then  Chief  Justice,  Andhra  Pradesh High Court and Mr. P.P. Rao, Senior Advocate,  jurist, in January, 2010, but till date I have not officially  heard anything in this connection to enable me to explain  my case. Now that Mr. Justice A.R. Dave is elevated to  the Supreme Court of India, the Committee requires to be  reconstituted.”

Mr. Justice P.D. Dinakaran was given reply by Shri K.D. Singh,  Secretary to the Committee by his letter dated August 4, 2010.  From the  letter  it  was  evident  that  following  Justice  Dave's  elevation,  the  Committee  was  re-constituted  and  Justice  J.S.  Khehar, who at that time was Chief Justice of the Uttarakhand  High Court was brought on the Committee in his    place. The    letter went on to say that the Committee consisting of Hon'ble  Mr.  Justice  V.S.  Sirpurkar,  Judge,  Supreme  Court  of  India,  Hon'ble Mr. Justice J.S. Khehar, Chief Justice of Uttarakhand  High Court and Shri P.P. Rao, Senior Advocate, was examining  the Notice of Motion. Mr. Justice Dinakaran did not get back  raising  any  objection  against  Mr.  Rao's  presence  on  the  Committee.

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On November 27, 2010, Dr. Mrs. K.M. Vinodhini Dinakaram,  wife of Mr. Justice P.D. Dinakaran sent a letter addressed to the  three members of the Committee urging that in connection with  the enquiry her aged relatives might not be harassed and further  that  the  Committee  should  not  rely  upon  the  statements  of  certain  persons,  named  in  the  letter,  who  were  inimically  disposed of towards them. This letter was sent separately to all  the three members, including Mr. P.P. Rao. This letter too, does  not even suggest any reservation about the inclusion of Mr. Rao  in the Committee.  

The  objection  is  raised  for  the  first  time only  after  a  notice  along with  the charges and the list of witnesses and documents  in support of the charges were served upon the Judge.       

The stage and the time at which the objection is raised make it  clear  that  the  object  is  to  somehow  scuttle  the  enquiry  by  causing delay in the Committee's proceedings.”   

(emphasis supplied)

13. Shri  Amarendra  Sharan,  learned  senior  counsel  for  the  petitioner  

argued that inclusion of respondent No.3 in the Committee constituted by  

the Chairman has the effect of vitiating the proceedings held so far because  

the said respondent is biased against the petitioner. Shri Sharan emphasized  

that by virtue of his active participation in the seminar organized by the Bar  

Association  of  India  on  28.11.2009,  respondent  No.3  had  disqualified  

himself from being a member of the Committee and on being apprised of the  

relevant  facts,  the  Chairman  should  have  changed  the  Committee  by  

accepting the recusal of respondent No.3.  Learned senior counsel argued  

that a fair, impartial and unbiased investigation into the allegations levelled  

15

against him is an integral part of fundamental right to life guaranteed to the  

petitioner under Articles  14 and 21 of the Constitution and he cannot be  

deprived of that right by invoking the doctrine of waiver. In support of his  

arguments, Shri Amarendra Sharan relied upon the judgments of this Court  

in Maneka Gandhi v. Union of India (1978) 1 SCC 248, M.H. Hoskot v.  

State  of  Maharashtra (1978)  3  SCC 544,  Ranjit  Thakur v.  Union  of  

India (1987) 4 SCC 611,  Triveniben v. State of Gujarat (1989) 1 SCC  

678,  R v. Bow Street Metropolitan Stipendiary Magistrate and others,  

ex  parte  Pinochet  Ugarte  (No.2) (1999)  1  All  ER  577  and  In  re:  

Medicaments and Related Classes of Goods (No.2) 2001 (1) WLR 700.  

Learned senior counsel extensively referred to the dissenting view expressed  

by K. Ramaswamy, J. in  Krishna Swami v. Union of India and others  

(1992) 4 SCC 605 and argued that the propositions laid down by the learned  

Judge  on  the  issues  not  decided  by  the  majority  should  be  treated  as  

declaration  of  law  by  this  Court  for  the  purpose  of  Article  141  of  the  

Constitution and the same is binding.  

14. Shri U.U. Lalit, learned senior counsel appearing for respondent No.1  

invited  the  Court’s  attention  to  letter  dated  12.5.2010  written  by  the  

petitioner to the Vice-President and Chairman of the Rajya Sabha to show  

that  even  before  receiving  official  communication,  the  petitioner  had  

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become  aware  of  the  fact  that  respondent  No.3  was  a  member  of  the  

Committee constituted under Section 3(2) of the Act.  Shri Lalit then argued  

that the Court should not entertain objection to the inclusion of respondent  

No.3 in the Committee on the ground that he is biased against the petitioner  

because the latter did not raise any objection in that regard till the receipt of  

notice dated 16.3.2011, despite the fact that he knew that respondent No.3  

had  participated  in  the  seminar  organized  on  28.11.2009,  gave  a  speech  

opposing his elevation to this  Court  and also drafted a resolution to that  

effect.  Learned senior counsel then submitted that after meeting respondent  

No.3 on 6.12.2009 at the latter’s residence, the petitioner was fully satisfied  

that the said respondent had nothing against him.  Learned senior counsel  

also pointed out that even in the letter written by the petitioner’s wife there  

was no objection against respondent No.3 being a member of the Committee  

on the ground that he had pre-judged the guilt  of her husband.  Learned  

senior counsel submitted that after reading the representations made by the  

petitioner  and  his  wife,  no  person  of  reasonable  prudence  can  carry  an  

impression that the Committee of which respondent No.3 is a member will  

not be able to objectively investigate into the charges framed against  the  

petitioner.  Learned senior counsel relied upon the judgments of this Court  

in  Manak Lal  v.  Dr.Prem Chand Singhvi AIR  1957  SC 425,  Dr. G.  

Sarana v. University of Lucknow (1976) 3 SCC 585 and R.K. Anand v.  

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Delhi High Court (2009) 8 SCC 106 and argued that by maintaining silence  

for over one year against the appointment of respondent No.3 as member of  

the Committee,  the petitioner will be deemed to have waived his right to  

question the constitution of the Committee.

15. Shri  Prashant  Bhushan,  learned  counsel  for  the  intervenor  also  

referred to letter dated 12.5.2010 and submitted that the petitioner did not  

harbour any apprehension of bias of respondent No.3, whose participation in  

the seminar was known to him as early as in November 1999 and this was  

the reason he sought appointment from the said respondent and argued that  

belated  objection  raised  by  the  petitioner  against  the  constitution  of  the  

Committee should not be entertained.

16. We have thoughtfully considered the entire  matter.   Two questions  

which arise for consideration are whether by virtue of his active participation  

in the seminar organised by the Bar Association of India on 28.11.2009 and  

his opposition to the elevation of the petitioner to this Court are sufficient to  

disqualify  respondent  No.3  from  being  included  in  the  Committee  

constituted under Section 3(2) of the Act and whether by his conduct the  

petitioner  will  be  deemed  to  have  waived  his  right  to  object  to  the  

appointment of respondent No.3 as a member of the Committee.  

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17. Since a good deal of arguments were advanced by the learned counsel  

on the scope of Articles 121 and 124 of the Constitution, it may be useful to  

notice these Articles.  Article 121 declares that no discussion shall take place  

in Parliament with respect to the conduct of any Judge of the Supreme Court  

or  of  a  High Court  in  the  discharge  of  his  duties  except  upon a  motion  

presenting an address to the President for the removal of the Judge.  Article  

124(4) lays down that  a Judge of the Supreme Court shall not be removed  

from his office except by an order of the President passed after an address by  

each House of Parliament supported by a majority of the total membership  

of that House and by a majority of not less than two-thirds of the members  

of that House present and voting has been presented to the President in the  

same session for such removal on the ground of proved misbehaviour or  

incapacity.  Article 124(5) lays down that Parliament may by law regulate  

the procedure for the presentation of an address and for the investigation and  

proof of the misbehaviour or incapacity of a Judge under clause (4).  By  

virtue of  Article  217(1)(b),  the provision contained in Article  124(4) has  

been made applicable in the matter of removal of a Judge of the High Court.  

18. Articles 121 and 124 were interpreted  by the Constitution Bench in  

Sub-Committee on Judicial Accountability vs. Union of India (1991) 4  

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SCC 699.  In that case, the Court considered four writ petitions filed in the  

backdrop of an Inquiry Committee constituted by the then Speaker of the  

Lok Sabha to inquire into the allegations made by 108 Members of the Ninth  

Lok Sabha who had prayed for removal of Mr.Justice V. Ramaswami of this  

Court.  In two of the writ petitions filed by the organizations of advocates,  

prayer was made for issue of a mandamus to the Union of India to take  

immediate steps to enable the Inquiry Committee to discharge its functions  

under the Act and to restrain the learned Judge from performing judicial  

functions and from exercising judicial powers.  In the third writ petition filed  

by an advocate, it was prayed that the learned Judge should not be restrained  

from discharging his judicial  functions till  motion for the presentation of  

address for his removal was disposed of by both the Houses of Parliament.  

The fourth writ petition was also filed by an advocate for striking down the  

Act on the ground that the same was ultra vires the provisions of Articles  

100, 105, 118, 121 and 124(5) of the Constitution.  He had also sought a  

declaration that the motion presented by 108 Members of the Parliament for  

the removal of the Judge had lapsed with the dissolution of the Ninth Lok  

Sabha.  Along with the four writ petitions, the Court also transferred and  

disposed of Writ Petition (C) No.1061 of 1991 which was pending before  

the Delhi High Court with prayer similar to those made in one of the four  

writ petitions.  The majority judgment was delivered by B.C. Ray, J. on his  

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behalf and on behalf of M.N. Venkatachaliah, J.S. Verma and S.C. Agrawal,  

JJ.  The learned Judge noticed the procedure prevalent in England as also the  

provisions  contained  in  Canadian,  Australian  and  United  States  

Constitutions  for  removal  of  judges  of  Superior  Courts,  referred  to  the  

resolutions  passed  in  19th Biennial  Conference  of  the  International  Bar  

Association held at New Delhi in October, 1982, the First World Conference  

on  the  Independence  of  Justice  held  at  Montreal  on  10.6.1983,  Seventh  

United Nations Congress on the Prevention of Crime and the Treatment of  

Offenders  held  at  Milan  in  August-September,  1985,  debate  in  the  

Constituent Assembly and observed:

“But  the  constitutional  scheme  in  India  seeks  to  achieve  a  judicious blend of the political  and judicial  processes for the  removal of Judges. Though it appears at the first sight that the  proceedings  of  the  Constituent  Assembly  relating  to  the  adoption of clauses (4) and (5) of Article 124 seem to point to  the contrary and evince an intention to exclude determination  by a  judicial  process  of  the  correctness  of  the  allegations  of  misbehaviour or incapacity on a more careful examination this  is not the correct conclusion.”  

The learned Judge then referred to the scheme of Articles 121 and 124  

and observed:

“Accordingly, the scheme is that the entire process of removal  is in two parts — the first part under clause (5) from initiation  to  investigation  and  proof  of  misbehaviour  or  incapacity  is  covered  by  an  enacted  law,  Parliament’s  role  being  only  legislative as in all the laws enacted by it; and the second part  

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only after proof under clause (4) is in Parliament, that process  commencing only on proof in accordance with the law enacted  under clause (5). Thus the first part is entirely statutory while  the second part alone is the parliamentary process.

The Constitution intended  a  clear  provision  for  the  first  part  covered  fully  by  enacted  law,  the  validity  of  which  and the  process thereunder being subject to judicial review independent  of any political colour and after proof it was intended to be a  parliamentary  process.  It  is  this  synthesis  made  in  our  Constitutional Scheme for removal of a Judge.

If the motion for presenting an address for removal is envisaged  by Articles 121 and 124(4) ‘on ground of proved misbehaviour  or  incapacity’  it  presupposes  that  misbehaviour  or  incapacity  has  been  proved  earlier.  This  is  more  so  on  account  of  the  expression  ‘investigation  and  proof’  used  in  clause  (5)  with  specific  reference  to  clause  (4).  This  indicates  that  ‘investigation and proof’ of misbehaviour or incapacity is not  within clause (4) but within clause (5). Use of the expression  ‘same session’ in clause (4) without any reference to session in  clause  (5)  also  indicates  that  session  of  House  has  no  significance for clause (5) i.e., ‘investigation and proof’ which  is  to  be  entirely  governed  by  the  enacted  law  and  not  the  parliamentary  practice  which  may  be  altered  by  each  Lok  Sabha.

The  significance  of  the  word  ‘proved’  before  the  expression  ‘misbehaviour or incapacity’ in clause (4) of Article 124 is also  indicated  when  the  provision  is  compared  with  Article  317  providing  for  removal  of  a  member  of  the  Public  Service  Commission. The expression in clause (1) of Article 317 used  for  describing  the  ground  of  removal  is  ‘the  ground  of  misbehaviour’  while  in  clause  (4)  of  Article  124,  it  is,  ‘the  ground of  proved misbehaviour or incapacity’. The procedure  for removal of a member of the Public Service Commission is  also prescribed in clause (1) which provides for an inquiry by  the Supreme Court on a reference made for this purpose. In the  

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case of a Judge, the procedure for investigation and proof is to  be in accordance with the law enacted by the Parliament under  clause  (5)  of  Article  124.  In  view  of  the  fact  that  the  adjudication  of  the  ground  of  misbehaviour  under  Article  317(1) is to be by the Supreme Court, in the case of a Judge  who is a higher constitutional functionary, the requirement of  judicial  determination  of  the  ground  is  reinforced  by  the  addition  of  the  word  ‘proved’  in  Article  124(4)  and  the  requirement of law for this purpose under Article 124(5).

Indeed, the Act reflects the constitutional philosophy of both  the judicial  and political  elements of the process of removal.  The ultimate authority remains with the Parliament in the sense  that even if the committee for investigation records a finding  that  the  Judge  is  guilty  of  the  charges  it  is  yet  open to  the  Parliament to decide not to present an address to the President  for  removal.  But  if  the  committee  records  a  finding that  the  Judge is not guilty, then the political element in the process of  removal has no further option. The law is, indeed, a civilised  piece of legislation reconciling the concept of accountability of  Judges and the values of judicial independence.”

19. We may also notice Sections 3 to 6 of the Act which was enacted by  

Parliament  under  Article  124(5)  of  the  Constitution.   The  same  read  as  

under:  

“3. Investigation into misbehaviour or incapacity of Judge  by Committee.–(1) If notice is given of a motion for presenting  an address to the President praying for the removal of a Judge  signed,-  

(a) in the case of a notice given in the House of the People,  by not less than one hundred members of that House;

(b) in the case of a notice given in the Council of States, by  not less than fifty members of that Council,

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then, the Speaker or, as the case may be, the Chairman may,  after consulting such persons, if any, as he thinks fit and after  considering such materials, if any, as may be available to him ,  either admit the motion or refuse to admit the same.  

(2) If the motion referred to in sub- section (1) is admitted, the  Speaker or, as the case may be, the Chairman shall  keep the  motion  pending  and  constitute,  as  soon  as  may  be,  for  the  purpose of making an investigation into the grounds on which  the removal of a Judge is prayed for, a Committee consisting of  three members of whom-  

(a) one shall be chosen from among the Chief Justices and  other Judges of the Supreme Court;  

(b) one shall be chosen from among the Chief Justices of the  High Courts; and

(c)  one  shall  be  a  person  who is,  in  the  opinion  of  the  Speaker  or,  as  the  case  may  be,  the  Chairman,  a  distinguished jurist:  

Provided  that  where  notices  of  a  motion  referred  to  in  sub-  section  (1)  are  given  on  the  same  day  in  both  Houses  of  Parliament,  no  Committee  shall  be  constituted  unless  the  motion  has  been  admitted  in  both  Houses  and  where  such  motion has been admitted in both Houses, the Committee shall  be  constituted  jointly  by  the  Speaker  and  the  Chairman:   

Provided further that where notices of a motion as aforesaid are  given in the Houses of Parliament on different dates, the notice  which is given later shall stand rejected.   

(3)  The  Committee  shall  frame  definite  charges  against  the  Judge on the basis of which the investigation is proposed to be  held.   

(4) Such charges together with a statement of the grounds on  which each such charge is based shall be communicated to the  

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Judge  and  he  shall  be  given  a  reasonable  opportunity  of  presenting a written statement of defence within such time as  may be specified in this behalf by the Committee.  

(8) The Committee may, after considering the written statement  of the Judge and the medical report, if any, amend the charges  framed under sub-section (3) and in such case, the Judge shall  be given a reasonable opportunity of presenting a fresh written  statement of defence.  

(9) The Central Government may, if required by the Speaker or  the Chairman, or both, as the case may be, appoint an advocate  to conduct the case against the Judge.  

4. Report of Committee.–(1) Subject to any rules that may be  made in this behalf, the Committee shall have power to regulate  its own procedure in making the investigation and shall give a  reasonable  opportunity  to  the  Judge  of  cross-examining  witness, adducing evidence and of being heard in his defence.   

(2) At the conclusion of the investigation, the Committee shall  submit its report to the Speaker or, as the case may be, to the  Chairman, or where the Committee has been constituted jointly  by  the  Speaker  and  the  Chairman,  to  both  of  them,  stating  therein its findings on each of the charges separately with such  observation on the whole case as it thinks fit.  

(3) The Speaker or the Chairman, or, where the Committee has  been constituted jointly by the Speaker and the Chairman, both  of them, shall cause the report submitted under sub-section (2)  to be laid, as soon as may be, respectively before the House of  the People and the Council of States.

5.  Powers  of  Committee.–For  the  purpose  of  making  any  investigation  under  this  Act,  the  Committee  shall  have  the  powers of a civil court, while trying a suit, under the Code of  Civil  Procedure,  1908,  in  respect  of  the  following  matters,  namely:–  

25

(a) summoning and enforcing the attendance of any person  and examining him on oath;

(b) requiring the discovery and production of documents; (c) receiving evidence on oath; (d) issuing commissions for the examination of witnesses or  

documents; (e) such other matters as may be prescribed.

6. Consideration of report and procedure for presentation  of an address for removal of Judge.–(1) If the report of the  Committee contains a finding that the Judge is not guilty of any  misbehaviour or does not suffer from any incapacity, then, no  further  steps  shall  be taken in  either  House of  Parliament  in  relation to the report and the motion pending in the House or  the Houses of Parliament shall not be proceeded with.  

(2) If the report of the Committee contains a finding that the  Judge  is  guilty  of  any  misbehaviour  or  suffers  from  any  incapacity,  then,  the  motion referred to  in  sub-section  (1)  of  section 3 shall, together with the report of the Committee, be  taken  up  for  consideration  by  the  House  or  the  Houses  of  Parliament in which it is pending.   

(3) If  the motion is  adopted by each House of Parliament in  accordance with the provision of clause (4) of article 124 or, as  the case may be, in accordance with that clause read with article  218 of the Constitution, then, the misbehaviour or incapacity of  the Judge shall be deemed to have been proved and an address  praying for the removal of the Judge shall be presented in the  prescribed manner to the President by each House of Parliament  in the same session in which the motion has been adopted. ”

20. An analysis of the above reproduced provisions shows that Section  

3(1) of the Act provides for admission of motion by the Speaker or, as the  

case may be, the Chairman provided it is supported by 100 members of the  

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House of the People or 50 members of the Council of States, as the case may  

be. The Speaker or, as the case may be, the Chairman, is entitled to consult  

such person, if any, as he thinks fit and to consider such material, if any, as  

may be available to him.  If the motion is admitted, the Speaker or, as the  

case may be, the Chairman has to keep the motion pending and to constitute  

a Committee for the purpose of making an investigation into the grounds on  

which the removal of a Judge is prayed for [Section 3(2)].  The Committee  

constituted for the purpose of investigation shall consist of three members of  

whom – (a) one shall be chosen from among the Chief Justice and other  

Judges of the Supreme Court, (b) one shall be chosen from among the Chief  

Justices  of  the High Courts  and (c)  one shall  be a  person who is  in  the  

opinion of the Speaker or, as the case may be, the Chairman, a distinguished  

jurist.  In terms of Section 3(3), the Committee is required to frame definite  

charges against the Judge on the basis of which the investigation is proposed  

to be held.  Section 3(4) requires that the charges together with a statement  

of the grounds on which each charge is based shall be communicated to the  

Judge and he shall be given a reasonable opportunity of presenting a written  

statement  of  defence.   Section  3(8)  deals  with  the  situation  where  the  

Committee, after considering the written statement of the Judge, decides to  

amend  the  charges.   In  that  event,  the  Judge  is  required  to  be  given  a  

27

reasonable opportunity of presenting a fresh written statement of defence.  In  

terms of Section 3(9), the Central Government is empowered to appoint an  

advocate to conduct a case against the Judge.  Section 4(1) declares that  

subject to any rules made in that behalf, the Committee shall have power to  

regulate its own procedure in making the investigation.  It also lays down  

that the Committee shall give a reasonable opportunity to the Judge to cross-

examine  the  witnesses,  adduce  evidence  and  be  heard  in  his  defence.  

Section  4(2)  provides  for  submission  of  report  by  the  Committee  to  the  

Speaker  or,  as  the  case  may  be,  to  the  Chairman.   It  also  provides  for  

submission  of  report  both  to  the  Speaker  and  the  Chairman  where  the  

Committee has been jointly constituted by them.  In terms of Section 4(3),  

the report of the Committee is required to be placed before both the Houses  

of  Parliament  where  the  Committee  has  been  constituted  jointly  by  the  

Speaker and the Chairman.  Section 5 lays down that for the purpose of  

making investigation under the Act, the Committee shall have powers of a  

Civil Court while trying a suit under the Code of Civil Procedure, 1908 in  

matters relating to summoning of witnesses etc.  Section 6(1) lays down that  

if the Committee finds that the Judge is not guilty of any misbehaviour or  

does not  suffer  from any incapacity,  no further  steps should be taken in  

either House of Parliament.  Section 6(2) provides that if the report of the  

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Committee contains a finding that the Judge is guilty of any misbehaviour or  

suffers from any incapacity, then the motion together with the report shall be  

taken up for consideration by the House in which the motion is pending.  

Section  6(3)  provides  that  if  the  motion  is  adopted  by  each  House  of  

Parliament in accordance with the provisions of Article 124(4) or,  as the  

case may be, in accordance with that clause read with Article 218, then the  

misbehaviour  or  incapacity  of  the  Judge  shall  be  deemed  to  have  been  

proved  and  an  address  praying  for  the  removal  of  the  Judge  shall  be  

presented  in  the  prescribed  manner  to  the  President  by  each  House  of  

Parliament in the same session in which the motion has been adopted.           

21. In the backdrop of the relevant constitutional and statutory provisions,  

we  shall  now  consider  whether  participation  of  respondent  No.3  in  the  

seminar organised by the Bar Association of India where he made speech  

opposing the petitioner’s elevation to this Court and also drafted a resolution  

to  that  effect  can  lead  to  an  inference  that  he  was  biased  against  the  

petitioner  and he  ought  not  to  have  been appointed as  a  member  of  the  

Committee in terms of Section 3(2)(c) of the Act.

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22. The consideration of the aforesaid question needs to be prefaced by a  

brief reference to the nature and scope of the rule against bias and how the  

same has been applied by the Courts of common-law jurisdiction in India for  

invalidating judicial and administrative actions/orders.  Natural justice is a  

branch of public law. It is a formidable weapon which can be wielded to  

secure justice to citizens. Rules of natural justice are ‘basic values’ which a  

man has cherished throughout the ages. Principles of natural justice control  

all actions of public authorities by applying rules relating to reasonableness,  

good faith and justice, equity and good conscience. Natural justice is a part  

of law which relates to administration of justice. Rules of natural justice are  

indeed  great  assurances  of  justice  and fairness.  The  underlying object  of  

rules  of  natural  justice  is  to  ensure  fundamental  liberties  and  rights  of  

subjects.  They  thus  serve  public  interest.  The  golden  rule  which  stands  

firmly established is that the doctrine of natural justice is not only to secure  

justice but to prevent miscarriage of justice.   

23. The traditional English Law recognised the following two principles  

of natural justice:

“(a) “Nemo debet  esse  judex  in  propria causa: No man  shall be a judge in his own cause, or no man can act as both  at the one and the same time - a party or a suitor and also as  a  judge,  or  the  deciding  authority  must  be  impartial  and  

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without bias; and

(b) Audi alteram partem:  Hear the other side,  or both the  sides  must  be  heard,  or  no  man  should  be  condemned  unheard,  or  that  there  must  be fairness  on the part  of  the  deciding authority.”

However, over the years, the Courts through out the world have discovered  

new facets of the rules of natural justice and applied them to judicial, quasi-

judicial and even administrative actions/decisions.   At the same time, the  

Courts  have  repeatedly  emphasized  that  the  rules  of  natural  justice  are  

flexible and their application depends upon the facts of a given case and the  

statutory provisions,  if  any,  applicable,  nature of the right which may be  

affected and the consequences which may follow due to violation of the  

rules of natural justice.   

24. In  Russel v. Duke of Norfolk (1949) 1 All ER 108,   Tucker, L.J.  

observed:  

“There  are,  in  my  view,  no  words  which  are  of  universal  application to every kind of inquiry and every kind of domestic  tribunal. The requirements of natural justice must depend on the  circumstances of the case, the nature of the inquiry, the rules  under  which  the  tribunal  is  acting,  the  subject-matter  that  is  being dealt with, and so forth.”

In Byrne v. Kinematograph Renters Society Limited (1958) 2 All  

ER 579, Lord Harman made the following observations:  

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“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,  that the tribunal should act in good faith. I do not think that  there really is anything more.”

In  Union of India v. P.K. Roy AIR 1968 SC 850, Ramaswami, J.  

observed:

“The extent and application of the doctrine of natural  justice  cannot be imprisoned within the strait-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.”

In Suresh Koshy George v. University of Kerala AIR 1969 SC 198,  

K.S. Hegde, J. observed:

“……….The rules  of  natural  justice  are  not  embodied rules.  The question whether the requirements of natural justice have  been met by the procedure adopted in a given case must depend  to a great extent on the facts and circumstances of the case in  point, the constitution of the Tribunal and the rules under which  it functions.”

A.K. Kraipak v. Union of India (1969) 2 SCC 262 represents an  

important milestone in the field of administrative law.  The question which  

came  up  for  consideration  by  the  Constitution  Bench  was  whether  

Naqishbund who was a candidate seeking selection for appointment to the  

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All  India  Forest  Service  was  disqualified  from  being  a  member  of  the  

selection board.  One of the issues considered by the Court was whether the  

rules of natural justice were applicable to purely administrative action.  After  

noticing some precedents on the subject, the Court held:

“The  dividing  line  between  an  administrative  power  and  a  quasi-judicial  power  is  quite  thin  and  is  being  gradually  obliterated.  For  determining  whether  a  power  is  an  administrative power or a quasi-judicial power one has to look  to the nature of the power conferred, the person or persons on  whom it is conferred, the framework of the law conferring that  power,  the  consequences  ensuing  from  the  exercise  of  that  power and the manner in which that power is expected to be  exercised. Under our Constitution the rule of law pervades over  the entire field of administration. Every organ of the State under  our Constitution is regulated and controlled by the rule of law.  In a welfare State like ours it is inevitable that the jurisdiction  of the administrative bodies is increasing at a rapid rate. The  concept  of  rule  of  law  would  lose  its  vitality  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  arbitrarily  or  capriciously. The procedures which are considered inherent in  the  exercise  of  a  judicial  power  are  merely  those  which  facilitate if not ensure a just and fair decision. In recent years  the  concept  of  quasi-judicial  power  has  been  undergoing  a  radical  change.  What  was  considered  as  an  administrative  power  some years  back is  now being considered as  a  quasi- judicial power.”  

The Court then considered whether the rules of natural justice were  

applicable  to  a  case  involving  selection  for  appointment  to  a  particular  

service.   The  learned  Attorney  General  argued  that  the  rules  of  natural  

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justice were not applicable to the process of selection.   The Constitution  

Bench  referred  to  the  judgments  of  the  Queen’s  Bench  in  re  H.K. (An  

infant) (1967) 2 QB 617 and of this Court in State of Orissa v. Dr.(Miss)  

Binapani Dei (1967) 2 SCR 625 and observed:

“The aim of the rules of natural justice is to secure justice or to  put it negatively to prevent miscarriage of justice. These rules  can operate only in areas not covered by any law validly made.  In other  words they do not  supplant  the law of the land but  supplement it.  The concept of natural justice has undergone a  great deal of change in recent years. In the past it was thought  that  it  included just  two rules namely:  (  1  )  no one shall  be a    judge in his own case (  Nemo debet esse judex propria causa  )    and  (  2  )  no  decision  shall  be  given  against  a  party  without    affording him a reasonable hearing (  audi alteram partem  )  .   Very    soon thereafter a third rule was envisaged and that is that quasi- judicial enquiries must be held in good faith, without bias and  not arbitrarily or unreasonably. But in the course of years many  more subsidiary rules came to be added to the rules of natural  justice. Till very recently it was the opinion of the courts that  unless the authority concerned was required by the law under  which it functioned to act judicially there was no room for the  application of the rules of natural justice. The validity of that  limitation  is  now questioned.  If  the  purpose  of  the  rules  of  natural justice is to prevent miscarriage of justice one fails to  see  why  those  rules  should  be  made  inapplicable  to  administrative enquiries. Often times it is not easy to draw the  line  that  demarcates  administrative  enquiries  from  quasi- judicial  enquiries. Enquiries  which  were  considered  administrative at one time are now being considered as quasi- judicial in character.  Arriving at a just decision is the aim of  both quasi-judicial enquiries as well as administrative enquiries.  An unjust decision in an administrative enquiry may have more  far reaching effect than a decision in a quasi-judicial enquiry.  As  observed  by  this  Court  in  Suresh  Koshy  George v.  University  of  Kerala  the  rules  of  natural  justice  are  not  

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embodied rules.  What particular rule of natural justice should  apply to a given case must depend to a great extent on the facts  and circumstances of that case, the framework of the law under  which the enquiry is held and the constitution of the Tribunal or  body  of  persons  appointed  for  that  purpose.  Whenever  a  complaint is made before a court that some principle of natural  justice had been contravened the court has to decide whether  the observance of that rule was necessary for a just decision on  the facts of that case.”

(emphasis supplied)

In  Maneka Gandhi  v.  Union of  India  (supra),  a  larger  Bench of  

seven  Judges  considered  whether  passport  of  the  petitioner  could  be  

impounded without giving her notice and opportunity of hearing.  Bhagwati,  

J,  speaking  for  himself  and for  Untwalia  and Fazal  Ali,  JJ,  gave  a  new  

dimension to the rule of  audi alteram partem and declared that an action  

taken in violation of that rule is arbitrary and violative of Articles 14 and 21  

of the Constitution.  The learned Judge referred to Ridge v. Baldwin (1964)  

AC 40,  State of Orissa v. Dr.(Miss)  Binapani Dei (supra),  re H.K.(An  

Infant) (supra) and A.K. Kraipak v. Union of India (supra) and observed:

“The audi alteram partem rule is intended to inject justice into  the law and it cannot be applied to defeat the ends of justice, or  to make the law “lifeless, absurd, stultifying, self-defeating or  plainly contrary to the common sense of the situation”. Since  the life of the law is not logic but experience and every legal  proposition  must,  in  the  ultimate  analysis,  be  tested  on  the  touchstone of pragmatic realism, the  audi alteram partem rule  would, by the experiential  test,  be excluded, if  importing the  right to be heard has the effect of paralysing the administrative  

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process  or  the  need  for  promptitude  or  the  urgency  of  the  situation  so  demands.  But  at  the  same  time  it  must  be  remembered that this is a rule of vital importance in the field of  administrative law and it must not be jettisoned save in very  exceptional  circumstances  where  compulsive  necessity  so  demands. It is a wholesome rule designed to secure the rule of  law and the court should not be too ready to eschew it in its  application to a given case. True it is that in questions of this  kind a fanatical or doctrinaire approach should be avoided, but  that  does  not  mean  that  merely  because  the  traditional  methodology of  a formalised  hearing may have the effect  of  stultifying the exercise of the statutory power, the audi alteram  partem should be wholly excluded. The court must make every  effort  to  salvage  this  cardinal  rule  to  the  maximum  extent  permissible  in  a  given  case.  It  must  not  be  forgotten  that  “natural  justice  is  pragmatically  flexible  and  is  amenable  to  capsulation under the compulsive pressure of circumstances”.  The audi alteram partem rule is not cast in a rigid mould and  judicial  decisions  establish  that  it  may  suffer  situational  modifications. The core of it must, however, remain, namely,  that the person affected must have a reasonable opportunity of  being heard and the hearing must be a genuine hearing and not  an empty public relations exercise.

A fair opportunity of being heard following immediately upon  the order impounding the passport would satisfy the mandate of  natural  justice  and  a  provision  requiring  giving  of  such  opportunity to the person concerned can and should be read by  implication in the Passports Act, 1967. If such a provision were  held to be incorporated in the Passports Act, 1967 by necessary  implication, as we hold it must be, the procedure prescribed by  the Act for impounding a passport would be right, fair and just  and  it  would  not  suffer  from  the  vice  of  arbitrariness  or  unreasonableness. We must, therefore, hold that the procedure  “established”  by  the  Passports  Act,  1967  for  impounding  a  passport is in conformity with the requirement of Article 21 and  does not fall foul of that article.”

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In  Olga Tellis  v.  Bombay Municipal  Corporation  (1985) 3 SCC  

545, the Constitution Bench dealt with the question whether pavement and  

slum dwellers  could  be  evicted  without  being  heard.   After  adverting  to  

various precedents on the subject, Chief Justice Chandrachud observed:

“Just as a mala fide act has no existence in the eye of law, even  so,  unreasonableness  vitiates  law  and  procedure  alike.  It  is  therefore  essential  that  the  procedure  prescribed  by  law  for  depriving a  person of  his  fundamental  right,  in this  case  the  right to life, must conform to the norms of justice and fairplay.  Procedure, which is unjust or unfair in the circumstances of a  case, attracts the vice of unreasonableness, thereby vitiating the  law  which  prescribes  that  procedure  and  consequently,  the  action taken under it.  Any action taken by a public authority  which is  invested with statutory powers  has,  therefore,  to be  tested by the application of two standards: the action must be  within  the  scope  of  the  authority  conferred  by  law  and  secondly, it must be reasonable. If any action, within the scope  of the authority conferred by law, is found to be unreasonable,  it must mean that the procedure established by law under which  that action is taken is itself unreasonable. The substance of the  law cannot be divorced from the procedure which it prescribes  for, how reasonable the law is, depends upon how fair is the  procedure prescribed by it.  Sir  Raymond Evershed says  that,  “from  the  point  of  view  of  the  ordinary  citizen,  it  is  the  procedure that will most strongly weigh with him. He will tend  to form his judgment of the excellence or otherwise of the legal  system from his personal knowledge and experience in seeing  the  legal  machine  at  work”.  Therefore,  “He  that  takes  the  procedural sword shall perish with the sword.”  

25. In this case, we are concerned with the application of first of the two  

principles of natural justice recognized by the traditional English Law, i.e.,  

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Nemo debet esse judex in propria causa.  This principle consists of the rule  

against bias or interest and is based on three maxims: (i) No man shall be a  

judge in his own cause; (ii) Justice should not only be done, but manifestly  

and undoubtedly be seen to be done; and (iii)  Judges, like Caesar’s wife  

should be above suspicion.  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 must  

be  of  sterner  stuff.  His  mental  equipoise  must  always  remain  firm  and  

undetected.  He  should  not  allow  his  personal  prejudice  to  go  into  the  

decision-making. The object is not merely that the scales be held even; it is  

also that they may not appear to be inclined.  If the Judge is subject to bias in  

favour 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.   

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26. A pecuniary (bias) interest,  however small it may be, disqualifies a  

person from acting as a Judge. Other types of bias, however, do not stand on  

the same footing and the Courts have, from time to time, evolved different  

rules  for  deciding whether  personal  or  official  bias  or  bias  as  to  subject  

matter or judicial obstinacy would vitiate the ultimate action/order/decision.  

27. In The Queen v. Rand (1866) LR 1 (Q.B.D.) 230, the Queen’s Bench  

was  called  upon  to  consider  whether  the  factum  of  two  justices  being  

trustees of a hospital and a friendly society respectively, each of which had  

lent  money to the Bradford Corporation on bonds charging the corporate  

fund were disqualified from participating in the proceedings which resulted  

in issue of certificate in favour of the corporation to take water of certain  

streams  without  permission  of  the  mill  owners.   While  answering  the  

question in negative, Blackburn, J. evolved the following 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; and if  by any possibility these gentlemen, though mere trustees, could  have been liable to costs, or to other pecuniary loss or gain, in  consequence  of  their  being so,  we should think the  question  different from what it is: for that might be held an interest.  But  the only way in which the facts could affect their impartiality,  would be that they might have a tendency to favour those for  whom they were trustees;  and that is  an objection not in the  nature of interest, but of a challenge to the favour.  Wherever  there is a real likelihood that the judge would, from kindred or  

39

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;  and we think that  Reg.  v.  Dean  of  Rochester  (1)  is  an  authority,  that  circumstances, from which a suspicion of favour may arise, do  not produce the same effect as a pecuniary interest…………”  

28. In  Rex v. Sussex Justices, Ex Parte McCarthy (1924) 1 KB 256,  

Lord Hewart, CJ., evolved the rule that justice should not only be done, but  

manifestly and undoubtedly be seen to be done.  The facts of that case were  

that on August 21, 1923, a collision took place between a motor cycle driven  

by the applicant and a motor cycle and side-car driven by one Whitworth,  

and  it  was  alleged  that  the  latter  and  his  wife  sustained  injuries  in  the  

collision.   In respect  of those injuries Messrs  Langham, Son & Douglas,  

solicitors,  Hastings,  by a letter  dated August 28,  1923,  made a claim on  

behalf of Whitworth against the applicant for damages, and the police, after  

making  inquiries  into  the  circumstances  of  the  collision,  applied  for  and  

obtained a summon against the applicant for driving his motor cycle in a  

manner  dangerous  to  the  public.   At  the  hearing  of  that  summon  on  

September 22, 1923, the applicant’s solicitor, who stated in his affidavit that  

he had no knowledge of the officials of the court, inquired whether Mr. F.G.  

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Langham,  the  clerk  to  the  justices  and  a  member  of  the  said  firm  of  

Langham, Son & Douglas, was then sitting as clerk, and was informed that  

he was not, but had appointed a deputy for that day.  The case was then  

heard, and at the conclusion of the evidence the justices retired to consider  

their  decision,  the  deputy  clerk  retiring  with  them.   When  the  justices  

returned  into  court  they  intimated  that  they  had  decided  to  convict  the  

applicant,  and they imposed a fine of 10 lakh and costs.  Thereupon, the  

applicant’s solicitor brought to the notice of the justices the fact, of which he  

said he had only become aware when the justices retired, that the deputy  

clerk was a brother of Mr. F.G. Langham, and was himself a partner in the  

firm of Langham, Son & Douglas,  and so was interested as solicitor  for  

Whitworth in the civil proceedings arising out of the collision in respect of  

which they had convicted the applicant.  The solicitor in his affidavit stated  

that had he known the above facts he would have taken the objection before  

the case began.  This rule was thereafter obtained on the ground that it was  

irregular for the deputy clerk in the circumstances to retire with the justices  

when considering their decision.  The King’s Bench quashed the conviction  

on the ground of bias.  Lord Hewart C.J., posed the following question:

“…………..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  

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be unfit to act as clerk to the justices in the criminal matter…… …….”

He then proceeded to observe:

“………………….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.  Speaking for myself, I accept the statements contained  in the justices’  affidavit,  but  they show very clearly that  the  deputy clerk was connected with the case in a capacity which  made it right that he should scrupulously abstain from referring  to the matter in any way, although he retired with the justices;  in other words, his one position was such that he could not, if  he had been required to do so, discharge the duties which his  other position involved.  His twofold position was a manifest  contradiction.   In those circumstances I am satisfied that this  conviction must  be quashed,  unless it  can be shown that  the  applicant or his solicitor was aware of the point that might be  taken,  refrained  from  taking  it,  and  took  his  chance  of  an  acquittal on the facts, and then, on a conviction being recorded,  decided to take the point…………”  

29. In Regina v. Camborne Justices Ex parte Pearce (1955) 1 QB 41,  

the  Divisional  Court  of  Queen’s  Bench  Division  after  reviewing  large  

number  of  authorities  including  Rex  v.  Sussex  Justices,  Ex  parte  

McCarthy (supra) and held that “ real likelihood was the proper test, and  

that a real likelihood of bias 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 easily verified in the course of  

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his  inquiries.”   The issue which arose for consideration in that  case was  

whether  the  conviction  of  Henry  Pearce  was  vitiated  on  four  grounds  

including  the  one  that  throughout  the  hearing  Mr.  Donald  Woodroffe  

Thomas,  solicitor,  acted as clerk to the justices  and was called into their  

private room for the purpose of advising them, although he was at the time a  

councilor member of the council.  The facts of that case were as follows:

“On  January  27,  1948,  the  Public  Health  and  Housing  Committee  (later  known  as  the  Health  Committee)  of  the  council recommended that the authority of the council should  be given to its sampling officers to institute proceedings under  the Food and Drugs Act, 1938.   On February 24, 1948, the  council adopted this recommendation.   Since that date each of  the  council's  sampling  officers,  including  Rundle,  had  from  time  to  time  been  given  authorities  under  the  seal  of  the  council  appointing  them inspectors and authorized officers of  the  council  under  the  Food  and  Drugs  Acts  and  expressly  authorizing  them  to  institute,  on  behalf  of  the  council,  proceedings  under  the  Acts  before  any  court  of  summary  jurisdiction.    On June 20, 1952, a fresh sealed authority was  given  to  Rundle  and  the  other  sampling  officers,  being  an  extension  of  the  earlier  authorities,  and this  sealed  authority  was in force at all material times.   This authority empowered  the sampling officers to institute proceedings under, inter alia,  the Food and Drugs Acts in their own discretion and without  seeking any specific authority from the council to do so, and it  became the practice for the chief sampling officer to report to  the Health Committee the action his subordinates had in fact  taken.   On January 4, 1954, Rundle laid the two informations  against the applicant.  On January 19, 1954, the chief sampling  officer reported to the Health Committee that such proceedings  were pending against the applicant.

On February 23,  1954,  the council  received and adopted the  report  of  its  Health  Committee  dated  January  19,  1954.  On  

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April 13, 1954, the chief sampling officer reported to the Health  Committee the result of the proceedings against the applicant.  On May 11, 1954, the council received and adopted the report  of its Health Committee dated April 13, 1954. Mr. Thomas was  not present at any of the above-mentioned four meetings and  indeed was never  a  member  of  the  Health  Committee  or  its  predecessor, the Public Health and Housing Committee. Rundle  laid the two informations in the exercise of his own discretion  and  upon  his  own  responsibility  in  pursuance  of  the  power  conferred upon him by his sealed authority. Mr. Thomas was  appointed clerk to the justices for the East Penwith Division of  Cornwall on December 30, 1931. He was elected a member of  Cornwall County Council on April 22, 1937. He acted as clerk  to  the  justices  during  the  trial  of  the  applicant  upon  the  informations at the Camborne Magistrates' Court on January 26,  1954.  He  did  not  retire  with  the  justices  while  they  were  considering their verdict, but was later sent for by the chairman,  who requested him to advise the justices upon a point of law.  During the short time that he was with them the justices did not  discuss the facts of the case at all, and having given his advice  on the point of law he returned to court. Some appreciable time  later  the  justices  returned  and  gave  their  decision.  At  the  hearing  the  applicant  pleaded  "Not  Guilty."  The  prosecution  was conducted by a solicitor in the full-time employment of the  Cornwall  County  Council.  The  applicant  was  represented  by  counsel, instructed by his solicitors, Messrs. Stephens & Scown  of St. Austell. An articled clerk, Mr. Philip Stephens (who was  not related to any partner in the firm) attended counsel at the  hearing  on  behalf  of  that  firm.  Neither  the  applicant,  nor  counsel, nor the articled clerk was aware at that time that the  clerk  to  the  justices  was  a  member  of  the  Cornwall  County  Council  though  that  fact  was  well  known  to  Mr.  William  Garfield Scown, the partner in the firm who had the conduct of  the applicant's defence.

During the six years  from 1948 to 1953 inclusive some 660  prosecutions by the Cornwall County Council were heard and  determined by the  East  Penwith  Magistrates'  Court  at  which  either  Mr.  Thomas  or  the  deputy  clerk  to  the  justices,  Mr.  Garfield Uren, acted as clerk to the justices; yet so far as was  

44

known no previous objection had ever been made because Mr.  Thomas acted as clerk to the justices during the hearing of an  information by or on behalf of the Cornwall County Council.  There was no allegation that Mr. Thomas attempted in any way  improperly to influence the justices in their decision on January  26, 1954.”  

The question posed in that case was "what interest in "a judicial or  

quasi-judicial proceeding does the law regard as "sufficient to incapacitate a  

person from adjudicating or assisting "in adjudicating on it upon the ground  

of  bias  or  appearance  of  "bias?"  It  is,  of  course,  clear  that  any  direct  

pecuniary  or  proprietary  interest  in  the  subject-matter  of  a  proceeding,  

however small, operates as an automatic disqualification. In such a case the  

law assumes bias. What interest short of that will suffice? The Divisional  

Court referred to judgment of Blackburn, J. in The Queen v. Rand (supra),  

in which the test of real likelihood of bias was evolved, Lord Esher M.R. in  

Eckersley v. Mersey Docks and Harbour Board (1894) 2 QB 667, Rex v.  

Justices  of  County Cork (1910) 2  IR 271,  Rex v.  Sussex Justices,  Ex  

parte  McCarthy (supra),  Frome  United  Breweries  Company  v.  Bath  

Justices, (1926) AC 586, Rex v. Essex Justices, Ex parte Perkins (1927) 2  

KB 475 and held:

“In the judgment of this court the right test is that prescribed by  Blackburn J., namely, that to disqualify a person from acting in  a judicial or quasi-judicial capacity upon the ground of interest  (other than pecuniary or proprietary) in the subject-matter of the  

45

proceeding, a real likelihood of bias must be shown. This court  is further of opinion that a real likelihood of bias must 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 easily verified in the course of his  inquiries.

In  the  present  case,  for  example,  the  facts  relied  on  in  the  applicant's  statement  under  R.S.C.,  Ord.  59,  r.  3  (2),  might  create a more sinister impression than the full facts as found by  this court, all or most of which would have been available to the  applicant had he pursued his inquiries upon learning that Mr.  Thomas was a member of the Cornwall County Council, and  none of these further facts was disputed at the hearing of this  motion.

The frequency with which allegations of bias have come before  the courts in recent times seems to indicate that Lord Hewart's  reminder in the Sussex Justices case that it "is of fundamental "  importance  that  justice  should  not  only  be  done,  but  should  "manifestly and undoubtedly be seen to be done "is being urged  as  a  warrant  for  quashing  convictions  or  invalidating  orders  upon quite  unsubstantial  grounds and,  indeed,  in  some cases  upon the flimsiest pretexts of bias. Whilst indorsing and fully  maintaining  the  integrity  of  the  principle  reasserted  by  Lord  Hewart, this court feels that the continued citation of it in cases  to  which  it  is  not  applicable  may  lead  to  the  erroneous  impression that it is more important that justice should appear  to be done than that it should in fact be done.”

        (emphasis supplied)

30. In  Metropolitan Properties  (FGC) Ltd.  v.  Lannon (1969)  1  QB  

577, the Court of Appeal applied suspicion test and reasserted ‘justice must  

be seen to be done’ as the operative principle.   

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31. In R v. Gough (1993) AC 646, the House of Lords applied the ‘real  

likelihood’ test by using the expression ‘real danger’.  Two portions of the  

leading speech given by Lord Goff are extracted below:  

“In my opinion, if the circumstances of the case (as ascertained  by the court), it appears that there was a real likelihood, in the  sense of a real  possibility,  of bias on the part of a justice or  other member of an inferior tribunal,  justice requires that the  decision should not be allowed to stand.  I  am by no means  persuaded  that,  in  its  original  form,  the  real  likelihood  test  required  that  any  more  rigorous  criterion  should  be  applied.  Furthermore the test as so stated gives sufficient effect, in cases  of apparent bias, to the principle that justice must manifestly be  seen to be done, and it is unnecessary, in my opinion, to have  recourse to a test based on mere suspicion, or even reasonable  suspicion, for that purpose”

“In conclusion, I wish to express my understanding of the law  as follows.  I think it possible, and desirable, that the same test  should  be  applicable  in  all  cases  of  apparent  bias,  whether  concerned with justices or members of other inferior tribunals,  or with jurors, or with arbitrators.  Likewise I consider that, in  cases concerned with jurors, the same test should be applied by  a judge to whose attention the possibility of bias on the part of a  juror has been drawn in the course of a trial, and by the Court of  Appeal  when  it  considers  such  a  question  on  appeal.  Furthermore,  I  think  it  unnecessary,  in  formulating  the  appropriate test,  to require  that the court  should look at the  matter through the eyes of a reasonable man, because the court  in cases such as these personifies the reasonable man; and in  any  event  the  court  has  first  to  ascertain  the  relevant  circumstances from the available evidence, knowledge of which  would not necessarily be available to an observer in court at the  relevant time.  Finally, for the avoidance of doubt, I prefer to  state the test in terms of real danger rather than real likelihood,  to ensure that the court is thinking in terms of possibility rather  than probability of bias.  Accordingly, having ascertained the  relevant  circumstances,  the  court  should  ask  itself  whether,  

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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 (or  have  unfairly regarded) with favour, or disfavour, the case of a party  to the issue under consideration by him….”

(emphasis supplied)

32. In  R  v.  Bow  Street  Metropolitan  Stipendiary  Magistrate  and  

others,  ex  parte  Pinochet  Ugarte  (No.2) (supra),  the  House  of  Lords  

considered the question whether the factum of one of the Law Lords, who  

was a director and chairperson of Amnesty International Charity Limited,  

was disqualified from being a party in the proceedings of an appeal in which  

Amnesty International was granted leave to intervene. In that case, Senator  

Augusto Pinochet Ugarte applied for setting aside the decision of the House  

of  Lords  whereby  the  appeal  of  the  Commissioner  of  Police  of  the  

Metropolis and the Government of Spain was allowed and the decision of  

the Queen’s Bench Divisional Court quashing the provisional warrant issued  

for the arrest of the petitioner was set aside.  The ground on which review of  

the  decision  was  sought  was  that  Lord  Hoffmann,  who  constituted  the  

majority of the House of Lords, was biased because he was a director and  

chairperson  of  Amnesty  International  Charity  Limited.   Lord  Browne-

Wilkinson,  with  whom  other  members  of  the  Bench  agreed,  noted  that  

neither Senator Pinochet nor his legal advisors were aware of any connection  

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between Lord Hoffmann and Amnesty International until after the judgment  

was delivered on 25.11.1998 in the main case and the appeal filed against  

the  judgment  of  the  Queen’s  Bench  Divisional  Court  was  allowed  by  a  

majority of three to two.  After the judgment, relationship of Lord Hoffmann  

and his wife with Amnesty International and its constituents were revealed.  

Lord  Browne-Wilkinson  noted  that  there  was  no  allegation  that  Lord  

Hoffmann was in fact  biased but the argument was that there was a real  

danger or reasonable apprehension or suspicion that Lord Hoffmann might  

have been biased and proceeded to observe:

“The fundamental principle is that a man may not be a judge in  his on cause. This principle, as developed by the courts, has two  very  similar  but  not  identical  implications.  First  it  may  be  applied literally: if a judge is in fact a party to the litigation or  has a financial or proprietary interest in its outcome then he is  indeed sitting as a judge in his own cause. In that case, the mere  fact  that  he  is  a  party  to  the  action  or  has  a  financial  or  proprietary  interest  in  its  outcome  is  sufficient  to  cause  his  automatic  disqualification.  The  second  application  of  the  principle is where a judge is not a party to the suit and does not  have a financial interest in its outcome, but in some other way  his conduct or behaviour may give rise to a suspicion that he is  not  impartial,  for  example  because  of  his  friendship  with  a  party.  This  second  type  of  case  is  not  strictly  speaking  an  application of the principle that a man must not be judge in his  own  cause,  since  the  judge  will  not  normally  be  himself  benefiting, but providing a benefit for another by failing to be  impartial.

In my judgment, this case falls within the first category of case,  viz where the judge is disqualified because he is a judge in his  own cause. In such a case, once it is shown that the judge is  

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himself  a party to the cause,  or  has a  relevant  interest  in its  subject matter, he is disqualified without any investigation into  whether there was a likelihood or suspicion of bias. The mere  fact of his interest is sufficient to disqualify him unless he has  made sufficient disclosure: see Shetreet Judges on Trial (1976)  p  303  and  De  Smith,  Woolf  and  Jowell  Judicial  Review  of  Administrative Action (5th edn,  1995) p 525. I  will  call  this  'automatic disqualification'.

xxx xxx xxx xxx

The importance of this point in the present case is this. Neither  AI, nor AICL, have any financial interest in the outcome of this  litigation. We are here confronted, as was Lord Hoffmann, with  a novel situation where the outcome of the litigation did not  lead to financial  benefit  to anyone.  The interest  of AI in the  litigation was not financial; it was its interest in achieving the  trial  and  possible  conviction  of  Senator  Pinochet  for  crimes  against humanity.

By seeking to intervene in this appeal and being allowed so to  intervene,  in  practice  AI  became  a  party  to  the  appeal.  Therefore  if,  in  the  circumstances,  it  is  right  to  treat  Lord  Hoffmann as being the alter ego of AI and therefore a judge in  his  own  cause,  then  he  must  have  been  automatically  disqualified on the grounds that he was a party to the appeal.  Alternatively, even if it be not right to say that Lord Hoffmann  was  a  party  to  the  appeal  as  such,  the  question  then  arises  whether,  in  non-financial  litigation,  anything  other  than  a  financial  or  proprietary  interest  in  the  outcome  is  sufficient  automatically to disqualify a man from sitting as judge in the  cause.

Are the facts such as to require Lord Hoffmann to be treated as  being himself a party to this appeal? The facts are striking and  unusual. One of the parties to the appeal is an unincorporated  association,  AI.  One  of  the  constituent  parts  of  that  unincorporated association is AICL. AICL was established, for  tax purposes,  to carry out part  of the functions of AI—those  parts  which  were  charitable—which  had  previously  been  

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carried on either by AI itself or by AIL. Lord Hoffmann is a  director and chairman of AICL, which is wholly controlled by  AI,  since  its  members  (who ultimately control  it)  are all  the  members  of  the  international  executive  committee  of  AI.  A  large part of the work of AI is, as a matter of strict law, carried  on by AICL which instructs AIL to do the work on its behalf. In  reality, AI, AICL and AIL are a close-knit group carrying on  the work of AI.

However, close as these links are, I do not think it would be  right to identify Lord Hoffmann personally as being a party to  the appeal. He is closely linked to AI but he is not in fact AI.  Although  this  is  an  area  in  which  legal  technicality  is  particularly  to  be  avoided,  it  cannot  be  ignored  that  Lord  Hoffmann took no part in running AI. Lord Hoffmann, AICL  and the executive committee of AI are in law separate people.  

Then is this a case in which it can be said that Lord Hoffmann  had  an  ‘interest’  which  must  lead  to  his  automatic  disqualification?   Hitherto  only  pecuniary  and  proprietary  interests have led to automatic disqualification.  But, as I have  indicated, this litigation is most unusual.  It is not civil litigation  but  criminal  litigation.  Most  unusually,  by  allowing  AI  to  intervene, there is a party to a criminal cause or matter who is  neither prosecutor nor accused. That party, AI, shares with the  government of Spain and the CPS, not a financial interest but  an interest to establish that there is no immunity for ex-heads of  state  in  relation  to  crimes  against  humanity.  The  interest  of  these  parties  is  to  procure  Senator  Pinochet's  extradition and  trial—a non-pecuniary interest. So far as AICL is concerned, cl  (c)  of its  memorandum provides that one of its objects is  'to  procure  the  abolition  of  torture,  extra-judicial  execution  and  disappearance'. AI has, amongst other objects, the same objects.  Although AICL, as a charity, cannot campaign to change the  law, it is concerned by other means to procure the abolition of  these crimes against humanity. In my opinion, therefore, AICL  plainly had a non-pecuniary interest,  to establish that Senator  Pinochet was not immune.

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That being the case, the question is whether in the very unusual  circumstances of this case a non-pecuniary interest to achieve a  particular  result  is  sufficient  to  give  rise  to  automatic  disqualification and, if so, whether the fact that AICL had such  an  interest  necessarily  leads  to  the  conclusion  that  Lord  Hoffmann,  as  a  director  of  AICL,  was  automatically  disqualified  from  sitting  on  the  appeal?  My  Lords,  in  my  judgment,  although  the  cases  have  all  dealt  with  automatic  disqualification on the grounds of pecuniary interest, there is no  good  reason  in  principle  for  so  limiting  automatic  disqualification. The rationale of the whole rule is that a man  cannot  be  a  judge  in  his  own  cause. In  civil  litigation  the  matters  in  issue  will  normally  have  an  economic  impact;  therefore a judge is automatically disqualified if he stands to  make a financial gain as a consequence of his own decision of  the case. But if, as in the present case, the matter at issue does  not  relate to money or economic advantage but  is concerned  with the promotion of the cause, the rationale disqualifying a  judge applies just as much if the judge's decision will lead to  the  promotion  of  a  cause  in  which  the  judge  is  involved  together with one of the parties.  Thus in my opinion if Lord  Hoffmann  had  been  a  member  of  AI  he  would  have  been  automatically disqualified because of his non-pecuniary interest  in  establishing  that  Senator  Pinochet  was  not  entitled  to  Immunity. Indeed, so much I understood to have been conceded  by Mr Duffy.

Can  it  make  any  difference  that,  instead  of  being  a  direct  member of AI, Lord Hoffmann is a director of AICL, that is of  a company which is wholly controlled by AI and is carrying on  much of its work? Surely not. The substance of the matter is  that  AI,  AIL and AICL are  all  various parts  of  an entity  or  movement working in different fields towards the same goals.  If the absolute impartiality of the judiciary is to be maintained,  there must be a rule which automatically" disqualifies a judge  who  is  involved,  whether  personally  or  as  a  director  of  a  company,  in  promoting  the  same  causes  in  the  same  organisation as is a party to the suit. There is no room for fine  distinctions  if  Lord  Hewart  CJ's  famous  dictum  is  to  be  observed: it  is 'of fundamental  importance that justice should  

52

not only be done,  but  should manifestly  and undoubtedly be  seen to be done’.”  

       (emphasis supplied)

33. In  re Medicaments and Related Classes of Goods (No.2) (supra),  

the Court of Appeal set aside the decision of the Restrictive Practices Court  

on the ground of real danger of bias by making the following observations:

“………The court  had first to ascertain all  the circumstances  which had a bearing on the suggestion that the judge was biased  and then ask whether those circumstances would lead a fair- minded and informed observer to conclude that there was a real  possibility, or a real danger, the two being the same, that the  judge was biased; that the material circumstances included any  explanation given by the impugned judge as to his knowledge  or  appreciation  of  those  circumstances  and  where  any  such  explanation was disputed the reviewing court did not have to  rule whether the explanation should be accepted or rejected but  rather had to decide whether  the fair-minded observer would  consider that there was a real danger of bias notwithstanding  the explanation advanced; that instead of determining whether  R’s  statement  was  truthful  the  court  should  have  considered  what impression her conduct, including her explanation for it,  would  have  had  on  a  fair-minded  observer;  that  such  an  observer would not have been convinced that all prospects of R  working  for  the  firm  at  some  time  in  the  future  had  been  destroyed or that she might not still hope to work for them in  due  course;  that,  in  those  circumstances,  the  fair-minded  observer would apprehend that there was a real danger that R  would be unable to make an objective and impartial appraisal of  the expert  evidence placed before the court  by the firm; and  that, accordingly, R ought to have recused herself and the other  members of the court should stand down.”

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34. It is, thus, evident that the English Courts have applied different tests  

for  deciding  whether  non-pecuniary  bias  would  vitiate  judicial  or  quasi  

judicial  decision.   Many  judges  have  laid  down  and  applied  the  ‘real  

likelihood’ formula, holding that the test for disqualification is whether the  

facts, as assessed by the court, give rise to a real likelihood of bias. Other  

judges have employed a ‘reasonable suspicion’ test, emphasizing that justice  

must be seen to be done, and that no person should adjudicate in any way if  

it  might reasonably be thought that  he ought not  to act  because of some  

personal  interest.   The  Constitutional  Court  of  South  Africa  has,  in  

President  of  the  Republic  of  South  Africa  v.  South  African  Rugby  

Football Union 1999 (4) SA 147 while holding that onus of establishing  

that there was ground for recusal of the members of the Court was on the  

applicant, made the following significant observations:

“…………The question is whether a reasonable, objective and  informed  person  would  on  the  correct  facts  reasonably  apprehend that the judge has not or will not bring an impartial  mind to bear on the adjudication of the case, that is a mind open  to persuasion by the evidence and the submissions of counsel.  The reasonableness of the apprehension must be assessed in the  light  of  the oath of  office  taken by the  judges to administer  justice without fear or favour; and their ability to carry out that  oath  by  reason of  their  training  and experience.   It  must  be  assumed that they can disabuse their minds of any irrelevant  personal  beliefs  or  predispositions.   They  must  take  into  account the fact that they have a duty to sit in any case in which  they are not obliged to recuse themselves.  At the same time, it  must never be forgotten that an impartial judge is a fundamental  

54

prerequisite  for  a  fair  trial  and  a  judicial  officer  should  not  hesitate  to  recuse  herself  or  himself  if  there  are  reasonable  grounds  on  the  part  of  a  litigant  for  apprehending  that  the  judicial  officer,  for whatever reasons, was not or will  not be  impartial.”

The High Court of Australia has adopted a different approach, as is  

evident from the judgment of seven-Judge Bench in  Johnson v. Johnson  

(2000)  174 Australian  Law Reports  655.  The  parties  to  the  appeal  were  

married  in  November  1979.  The  marriage  was  dissolved  in  1996.  The  

proceedings before Anderson, J. arose out of a dispute as to the financial  

arrangements to be made following such dissolution. There was a substantial  

amount at stake. It was held that there was what the Full Court described as  

an  “asset  pool”  valued  at  nearly  $30m.  Anderson,  J.  decided  that  the  

respondent (the wife) should receive 40% of that pool. One of the principal  

areas of dispute at the trial, which lasted for 66 days, concerned the extent of  

the  appellant's  assets  and,  in  particular,  whether  he  was  beneficially  

interested in substantial offshore assets owned by other persons and entities.  

It is unnecessary to go into the detail of that dispute. What is important is  

that,  at  the  trial,  the  respondent  was  asserting,  and  the  appellant  was  

denying, that the appellant was beneficially interested in various assets, and  

the investigation of that issue of fact involved a great deal of hearing time.  

On  the  20th  day  of  the  hearing,  Anderson,  J.  made  a  comment  which  

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resulted  in  an  application  by  counsel  for  the  appellant  that  he  should  

disqualify himself. Anderson, J. declined the application.  The Full Court of  

the Family Court upheld his decision.  Five members of the Bench speaking  

through Gleeson, C.J., referred to the test applied in Australia in determining  

whether a Judge was disqualified by reason of the appearance of bias, i.e.  

whether  a  fair-minded  lay  observer  might  reasonably  apprehend  that  the  

Judge might not bring an impartial and unprejudiced mind to the resolution  

of the question require to be decided and gave the following reasons for  

making a departure from the test applied in England:

“That  test  has  been  adopted,  in  preference  to  a  differently  expressed test that has been applied in England, for the reason  that it gives due recognition to the fundamental principle that  justice must both be done, and be seen to be done. It is based  upon the need for public  confidence in the administration of  justice. “If fair-minded people reasonably apprehend or suspect  that  the  tribunal  has  prejudged  the  case,  they  cannot  have  confidence  in  the  decision.”  The  hypothetical  reasonable  observer  of  the  judge's  conduct  is  postulated  in  order  to  emphasise that the test is objective, is founded in the need for  public confidence in the judiciary, and is not based purely upon  the assessment by some judges of the capacity or performance  of their  colleagues.  At the same time, two things need to be  remembered:  the observer is  taken to be reasonable;  and the  person being observed is “a professional judge whose training,  tradition and oath or affirmation require [the judge] to discard  the irrelevant, the immaterial and the prejudicial”.”

In  his  separate  opinion,  Kirby  J.  referred  to  the  judgments  of  the  

House  of  Lords  in  R  v.  Gough (supra)  as  also  R  v.  Bow  Street  

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Metropolitan  Stipendiary  Magistrate  and  others,  ex  parte  Pinochet  

Ugarte (No.2) (supra) and observed:   

“It is a "fundamental  rule" of natural  justice and an "abiding  value of our legal system" that every adjudicator must be free  from  bias.  This  same  principle  has  been  accepted  in  the  international law of human rights, which supports the vigilant  approach this court has taken to the possibility that the "parties  or the public might entertain a reasonable apprehension" that an  adjudicator  may  not  be  impartial.  Thus,  Art  14.1  of  the  International  Covenant  on  Civil  and  Political  Rights,  the  starting point for consideration of the relevant requirements of  international law, slates:

All persons shall be equal before the courts and tribunals. In the  determination  of  any  criminal  charge  against  him,  or  of  his  rights and obligations in a suit al law, everyone shall be entitled  to a fair  and public hearing by a competent  independent and  impartial tribunal established by law.

In  Karttunen  v  Finland,  elaborating  that  Article,  the  United  Nations Human Rights Committee concluded that "impartiality"  of a court:

. . . implies that judges must not harbour preconceptions about  the matter put before them, and . . . they must not act in ways  that promote the interests of one of the parties ... A trial flawed  by the participation of a judge who, under domestic statutes,  should have been disqualified cannot normally be considered to  be fair or impartial within the meaning of article 14.

Appearance  of  justice:  The  reason  commonly  given  for  adopting  the  comparatively  strict  approach  that  has  found  favour  in  this  court  in  recent  years  is  that  it  mirrors  the  importance  attached  by  the  law not  only  to  the  actuality  of  justice (that is, whether the adjudicator had, in fact, prejudged  issues in the case) but also the appearance of impartiality both  to the parties and to the community. From the point of view of  public  policy,  the  practical  foundation  for  a  relatively  strict  

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approach lies in the obligation on an appellate court to defend  the purity of the administration of justice and thereby to sustain  the community's confidence in the system. In the words of Lord  Denning  MR.  "justice  must  be  rooted  in  confidence:  and  confidence  is  destroyed  when  right-minded  people  go  away  thinking:  ‘The judge was biased’.”

        (emphasis supplied)

35. In India, the Courts have, by and large, applied the ‘real likelihood  

test’  for  deciding  whether  a  particular  decision  of  the  judicial  or  quasi  

judicial body is vitiated due to bias.  In  Manak Lal v. Dr. Prem Chand  

Singhvi (supra), it was observed:

“Every member of a tribunal that sits to try issues in judicial or  quasi-judicial  proceedings must  be able to act judicially;  and  the essence of judicial decisions and judicial administration is  that  judges should be able to act impartially,  objectively and  without any bias. In such cases the test is not whether in fact a  bias has affected the judgment; the test always is and must be  whether  a  litigant  could  reasonably  apprehend  that  a  bias  attributable to a member of the tribunal  might  have operated  against  him in the final  decision of  the tribunal.  It  is  in this  sense that it is often said that justice must not only be done but  must also appear to be done.”

36. In  A.K. Kraipak v.  Union of  India (supra),  the  rule  of  bias  was  

discussed in some detail in the context of selection for appointment to the  

Indian  Forest  Service.   Although,  Naqishbund  who  was  a  candidate  for  

selection  to  the  All  India  Forest  Service  and was also  a  member  of  the  

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selection board did not sit in the selection board at the time of his name was  

considered  but  participated  in  its  deliberations  when  the  names  of  other  

candidates, who were his rivals were considered. Two important questions  

considered  by  the  Court  were  whether  the  rules  of  natural  justice  were  

applicable in cases involving exercise of administrative power by the public  

authorities and whether the selection was vitiated due to bias.  The Court  

answered  both  the  questions  in  affirmative.  While  answering  the  second  

question, the Court noted that even though Naqishbund had not participated  

in the deliberations of the committee when his name was considered, but he  

was present when the claims of rivals were considered and observed:

“At every stage of his participation in the 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 have been 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.… …..  In  deciding  the  question  of  bias  we  have  to  take  into  consideration  human  probabilities  and  ordinary  course  of  human conduct.”

37. In  S. Parthasarthi v. State of A.P. (1974) 3 SCC 459, Mathew, J.  

applied the ‘real likelihood test’ and restored the decree passed by the trial  

Court which invalidated compulsory retirement of the appellant by way of  

punishment.  In paragraph 16 of the judgment, Mathew, J. observed:

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“……….We think  that  the  reviewing authority  must  make  a  determination  on  the  basis  of  the  whole  evidence  before  it,  whether a reasonable man would in the circumstances infer that  there  is  real  likelihood  of  bias.  The  Court  must  look  at  the  impression  which  other  people  have.  This  follows  from the  principle that justice must not only be done but seen to be done.  If right minded persons would think that there is real likelihood  of bias on the part of an inquiring officer, he must not conduct  the  enquiry;  nevertheless,  there  must  be  a  real  likelihood  of  bias. Surmise or conjecture would not be enough. There must  exist circumstances from which reasonable men would think it  probable or likely that the inquiring officer will be prejudiced  against the delinquent. The Court will not inquire whether he  was really prejudiced. If a reasonable man would think on the  basis  of  the  existing  circumstances  that  he  is  likely  to  be  prejudiced, that is sufficient to quash the decision……”

38. In  Dr.  G.  Sarana  v.  University  of  Lucknow (supra),  the  Court  

referred to the judgments in  A.K. Kraipak v. Union of India (supra),  S.  

Parthasarthi v. State of A.P. (supra) and observed:  

“………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  difficult 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 deciding the question of  bias,  human  probabilities  and  ordinary  course  of  human  conduct  have to be taken into consideration…………”

39. In Ashok Kumar Yadav v. State of Haryana (1985) 4 SCC 417, the  

Court while reiterating that the judgment in A.K. Kraipak’s case represents  

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an important landmark in the development of administrative law and has  

contributed in a large measure to the strengthening of the rule of law, made a  

significant  departure  in  cases  involving  selection  by  the  Public  Service  

Commissions.  All this is evident from paragraph 18 of the judgment, which  

is extracted below:

“18. We must straightaway point out that A.K. Kaipak case is  a landmark in the development of administrative law and it has  contributed in a large measure to the strengthening of the rule  of law in this country. We would not like to whittle down in the  slightest measure the vital principle laid down in this decision  which has nourished the roots of the rule of law and injected  justice and fair play into legality. There can be no doubt that if  a  Selection  Committee  is  constituted  for  the  purpose  of  selecting candidates on merits and one of the members of the  Selection Committee is closely related to a candidate appearing  for  the  selection,  it  would  not  be  enough  for  such  member  merely to withdraw from participation in the interview of the  candidate related to him but he must withdraw altogether from  the entire selection process and ask the authorities to nominate  another  person  in  his  place  on  the  Selection  Committee,  because otherwise all the selections made would be vitiated on  account of reasonable likelihood of bias affecting the process of  selection. But the situation here is a little different because the  selection of candidates to the Haryana Civil Service (Executive)  and  Allied  Services  is  being  made  not  by  any  Selection  Committee constituted for that purpose but it is being done by  the  Haryana  Public  Service  Commission  which  is  a  Commission set up under Article 316 of the Constitution. It is a  Commission  which  consists  of  a  Chairman  and  a  specified  number of members and is a constitutional authority. We do not  think  that  the  principle  which  requires  that  a  member  of  a  Selection  Committee  whose  close  relative  is  appearing  for  selection should decline to become a member of the Selection  Committee  or  withdraw from it  leaving  it  to  the  appointing  authority  to  nominate  another  person  in  his  place,  need  be  

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applied  in  case  of  a constitutional  authority  like  the  Public  Service Commission, whether Central or State. If a member of  a Public Service Commission were to withdraw altogether from  the selection process on the ground that a close relative of his is  appearing for selection, no other person save a member can be  substituted in his place. And it may sometimes happen that no  other member is available to take the place of such member and  the  functioning  of  the  Public  Service  Commission  may  be  affected.  When  two  or  more  members  of  a  Public  Service  Commission  are  holding  a  viva  voce  examination,  they  are  functioning  not  as  individuals  but  as  the  Public  Service  Commission.  Of  course,  we must  make it  clear  that  when a  close relative of a member of a Public Service Commission is  appearing  for  interview,  such  member  must  withdraw  from  participation  in  the  interview of that  candidate  and must  not  take  part  in  any  discussion  in  regard  to  the  merits  of  that  candidate and even the marks or credits given to that candidate  should not be disclosed to him.”

        (emphasis supplied)

40. The real likelihood test was again applied in Ranjit Thakur v. Union  

of India (1987) 4 SCC 611.  In that case, the appellant had challenged his  

dismissal from service on the ground of violation of the provision contained  

in Section 130 of the Army Act, 1950.  The facts of that case were that the  

appellant,  who  was  already  serving  sentence  of  28  days  rigorous  

imprisonment, is said to have committed another offence for which he was  

subjected  to  summary  court–martial  and  was  dismissed  from  service.  

Respondent No.4 who had earlier punished the appellant was a member of  

the summary court-martial in terms of Section 130 of the Army Act, 1950.  

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The appellant was entitled to object the presence of respondent No.4 in the  

summary court-martial, but this opportunity was not given to him.  The writ  

petition filed by the appellant was summarily dismissed by the High Court.  

This  Court  held  that  violation  of  the  mandate  of  Section  130  militates  

against  and  detracts  from  the  concept  of  a  fair  trial.   The  Court  then  

proceeded to  consider  whether  respondent  No.4 would  have been biased  

against the appellant and observed:

“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.

It  is  the  essence  of  a  judgment  that  it  is  made  after  due  observance  of  the  judicial  process;  that  the  court  or  tribunal  passing it observes, at least the minimal requirements of natural  justice;  is  composed  of  impartial  persons  acting  fairly  and  without bias and in good faith. A judgment which is the result  of bias or want of impartiality is a nullity and the trial “coram  non-judice”.  

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 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.”   

41. In  Secretary  to  Government,  Transport  Department  v.  

Munuswamy Mudaliar 1988 (Supp.) SCC 651, this Court considered the  

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question whether a party to the arbitration agreement could seek change of  

an  agreed  arbitrator  on  the  ground  that  being  an  employee  of  the  State  

Government, the arbitrator will  not be able to decide the dispute without  

bias.  While reversing the judgment of the High Court which had confirmed  

the order of learned Judge, City Civil Court directing appointment of another  

person as an arbitrator, this Court observed:

“Reasonable apprehension of bias in the mind of a reasonable  man  can  be  a  ground  for  removal  of  the  arbitrator.  A  predisposition to decide for or against one party, without proper  regard to the true merits of the dispute is bias. There must be  reasonable apprehension of that predisposition. The reasonable  apprehension  must  be  based  on  cogent  materials. See  the  observations  of  Mustill  and  Boyd,  Commercial  Arbitration  1982 Edn., p. 214. Halsbury’s Laws of England, 4th Edn., Vol.  2, para 551, p. 282 describe that the test for bias is whether a  reasonable  intelligent  man,  fully  apprised  of  all  the  circumstances, would feel a serious apprehension of bias.”

         (emphasis supplied)

42. In  Bihar  State  Mineral  Development  Corporation  v.  Encon  

Builders (I) (P) Ltd. (2003) 7 SCC 418, the Court applied the rule of bias in  

the context of a provision in the agreement which empowered the Managing  

Director  of  the  appellant  to  terminate  the  agreement  and  also  act  as  

arbitrator.  This Court applied the rule that a person cannot be a judge of his  

own cause and observed:

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“Actual bias would lead to an automatic disqualification where  the decision-maker is shown to have an interest in the outcome  of  the  case.  Actual  bias  denotes  an  arbitrator  who  allows  a  decision to be influenced by partiality or prejudice and thereby  deprives the litigant of the fundamental right to a fair trial by an  impartial tribunal.”

43. The principles which emerge from the aforesaid decisions are that no  

man can be a Judge in his own cause and justice should not only be done,  

but manifestly be seen to be done.  Scales should not only be held even but it  

must not be seen to be inclined.  A person having interest  in the subject  

matter of cause is precluded from acting as a Judge.  To disqualify a person  

from adjudicating on the ground of interest in the subject matter of  lis, the  

test of real likelihood of the bias is to be applied.  In other words, one has to  

enquire as to whether there is real danger of bias on the part of the person  

against  whom such apprehension is  expressed in the sense that  he might  

favour or disfavour a party.  In each case, the Court has to consider whether  

a fair minded and informed person, having considered all the facts would  

reasonably apprehend that the Judge would not act impartially.  To put it  

differently,  the  test  would  be  whether  a  reasonably  intelligent  man  fully  

apprised of all the facts would have a serious apprehension of bias.  In cases  

of non-pecuniary bias, the ‘real likelihood’ test has been preferred over the  

‘reasonable  suspicion’  test  and  the  Courts  have  consistently  held  that  in  

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deciding  the  question  of  bias  one  has  to  take  into  consideration  human  

probabilities and ordinary course of human conduct.  We may add that real  

likelihood of bias should appear not only from the materials ascertained by  

the complaining party, but also from such other facts which it could have  

readily ascertained and easily verified by making reasonable inquiries.   

44. In Halsbury’s  Laws of  England [Vol.  29(2) 4th Edn. Reissue 2002,  

para 560 page 379], the test of disqualification due to apparent bias has been  

elucidated in the following words:

“560.  Test  of  disqualification  by  apparent  bias.  The  test  applicable in all cases of apparent bias, whether concerned with  justices,  members  of  inferior  tribunals,  jurors  or  with  arbitrators,  is  whether,  having  regard  to  the  relevant  circumstances, there is a real possibility 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  a  party  to  the  issue  under  consideration  by  him.   In  considering this  question all  the  circumstances  which have a  bearing  on the  suggestion that  the  judge  or  justice  is  biased  must be considered.  The question is whether a fair minded and  informed observer, having considered the facts, would conclude  that  there was a real  possibility  that  the  tribunal  was biased.  Cases may occur where all the justices may be affected by an  appearance of bias, as, for instance, where a fellow justice or  the justices’ clerk is charged with an offence; where this occurs,  it  has  been  recommended  that  justices  from  another  petty- sessional division should deal with the case, or, if the offence is  indictable, that it should be committed for trial by a jury.

It is because the court in the majority of cases does not inquire  whether actual bias exists that the maxim that justice must not  

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only be done but be seen to be done is applied, and the court  gives  effect  to  the  maxim  by  examining  all  the  material  available and concluding whether there is a real possibility of  bias………”

45.  In the light of the above, we shall now consider whether the petitioner  

can invoke the rule of bias and seek invalidation of order dated 24.4.2011  

and other proceedings held by the Committee on the ground that respondent  

No.3 is biased and prejudiced against him and as such he could not have  

been made as a member of the Committee under Section 3(2) of the Act.  It  

is not in dispute that respondent No.3 participated in the seminar organised  

by  the  Bar  Association  of  India  of  which  he  was  Vice-President.   He  

demanded  public  inquiry  into  the  charges  levelled  against  the  petitioner  

before his elevation as a Judge of this Court.  During the seminar,  many  

eminent advocates spoke against the proposed elevation of the petitioner on  

the  ground  that  there  were  serious  allegations  against  him.   Thereafter,  

respondent No.3 drafted a resolution opposing elevation of the petitioner as  

a Judge of this Court.  He along with other eminent lawyers met the then  

Chief  Justice  of  India.   These  facts  could  give  rise  to  reasonable  

apprehension in the mind of an intelligent person that respondent No.3 was  

likely to be biased.  A reasonable, objective and informed person may say  

that respondent No.3 would not have opposed elevation of the petitioner if  

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he was not satisfied that there was some substance in the allegations levelled  

against him.   It is true that the Judges and lawyers are trained to be objective  

and  have  the  capacity  to  decipher  grain  from  the  chaff,  truth  from  the  

falsehood  and  we  have  no  doubt  that  respondent  No.3  possesses  these  

qualities.  We also agree with the Committee that objection by both sides  

perhaps  “alone  apart  from  anything  else  is  sufficient  to  confirm  his  

impartiality”.  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  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.

46. The next question which merits consideration is whether order passed  

by  the  Committee  on  24.4.2011  should  be  quashed  on  the  ground  of  

reasonable likelihood of bias of respondent No.3.  While deciding this issue,  

we have to keep in mind that the petitioner is not a layperson.  He is well-

versed in law and possesses a legally trained mind.  Further, for the last 15  

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years,  the petitioner has held constitutional  posts  of a Judge and then as  

Chief Justice of the High Court.  It is not the pleaded case of the petitioner  

that  he  had  no  knowledge  about  the  seminar  organized  by  the  Bar  

Association  of  India  on  28.11.2009  which  was  attended  by  eminent  

advocates including two former Attorney Generals and in which respondent  

No.3 made a speech opposing his elevation to this Court and also drafted  

resolution for the said purpose.  The proceedings of the seminar received  

wide publicity in the print and electronic media.  Therefore, it can be said  

that much before constitution of the Committee, the petitioner had become  

aware of  the fact  that  respondent No.3,  who, as  per  the petitioner’s  own  

version, had appreciated his work on the Bench and had sent congratulatory  

message when his name was cleared by the Collegium for elevation to this  

Court,  had  participated  in  the  seminar  and  made  speech  opposing  his  

elevation and also drafted resolution for the said purpose.  The Chairman  

had appointed respondent  No.3  as  member  of  the  Committee  keeping in  

view his long experience as an eminent advocate and expertise in the field of  

constitutional law.  The constitution of the Committee was notified in the  

Official Gazette dated 15.1.2010 and was widely publicised by almost all  

newspapers.  Therefore, it  can reasonably be presumed that the petitioner  

had become aware about the constitution of the Committee, which included  

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respondent No.3, in the month of January, 2010.  In his representation dated  

12.5.2010,  the  petitioner  claimed  that  he  came  to  know  about  the  

constitution  and  composition  of  the  Committee  through  the  print  and  

electronic media.  Thus, at least on 12.5.2010 he was very much aware that  

respondent  No.3  had  been  appointed  as  a  member  of  the  Committee.  

Notwithstanding this, he did not raise any objection apparently because after  

meeting  respondent  No.3  on  6.12.2009  at  the  latter’s  residence,  the  

petitioner  felt  satisfied  that  the  said  respondent  had nothing against  him.  

Therefore, belated plea taken by the petitioner that by virtue of his active  

participation in the meeting held by the Bar Association of India, respondent  

No.3 will be deemed to be biased against him does not merit acceptance.  It  

is also significant to note that respondent No.3 had nothing personal against  

the petitioner.  He had taken part in the seminar as Vice-President of the  

Association.  The concern shown by senior members of the Bar including  

respondent No.3 in the matter of elevation of the petitioner, who is alleged to  

have misused his position as a Judge and as Chief Justice of the High Court  

for material gains was not actuated by ulterior motive.  They genuinely felt  

that the allegations made against the petitioner need investigation.  After the  

seminar, respondent No.3 is not shown to have done anything which may  

give slightest impression to any person of reasonable prudence that he was  

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ill-disposed  against  the  petitioner.   Rather,  as  per  the  petitioner’s  own  

statement, he had met respondent No.3 at the latter’s residence on 6.12.2009  

and was convinced that the latter had nothing against him.  This being the  

position, it is not possible to entertain the petitioner’s plea that constitution  

of the Committee should be declared nullity on the ground that respondent  

No.3 is biased against him and order dated 24.4.2011 be quashed.

47. The issue deserves to be considered from another angle.  Admittedly,  

the  petitioner  raised  the  plea  of  bias  only  after  receiving  notice  dated  

16.3.2011 which was accompanied by statement of charges and the lists of  

documents  and  witnesses.   The  petitioner’s  knowledgeful  silence  in  this  

regard for a period of almost ten months militates against the bona fides of  

his  objection  to  the  appointment  of  respondent  No.3  as  member  of  the  

Committee.  A person on the petitioner’s standing can be presumed to be  

aware  of  his  right  to  raise  an  objection.   If  the  petitioner  had  slightest  

apprehension  that  respondent  No.3  had  pre-judged  his  guilt  or  he  was  

otherwise  biased,  then,  he  would  have  on  the  first  available  opportunity  

objected to his appointment as member of the Committee.  The petitioner  

could  have  done  so  immediately  after  publication  of  notification  dated  

15.1.2010.  He could have represented to the Chairman that investigation by  

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a Committee of which respondent No.3 was a member will not be fair and  

impartial because the former had already presumed him to be guilty.  We  

cannot  predicate  the  result  of  the  representation  but  such  representation  

would have given an opportunity to the Chairman to consider the grievance  

made  by  the  petitioner  and  take  appropriate  decision  as  he  had done  in  

March, 2010 when respondent No.3 had sought recusal from the Committee  

in the wake of demand made by a section of the Bar which had erroneously  

assumed that the petitioner had consulted respondent No.3. However,  the  

fact of the matter is that the petitioner never thought that respondent No.3  

was prejudiced or ill-disposed against him and this is the reason why he did  

not raise objection till April, 2011 against the inclusion of respondent No.3  

in the Committee. This leads to an irresistible inference that the petitioner  

had waived his right  to object  to the appointment of respondent No.3 as  

member of the Committee.  The right available to the petitioner to object to  

the appointment of respondent No.3 in the Committee was personal to him  

and it was always open to him to waive the same.

48. In  Lachhu Mal v. Radhey Shyam,  AIR 1971 SC 2213, the Court  

considered  the  question  whether  the  landlord  can  by  way  of  agreement  

waive the exemption available to him under U.P. (Temporary) Control of  

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Rent and Eviction Act, 1947.  In that case, the landlord had entered into an  

agreement waiving the exemption available to him under the Act.  While  

dealing with the issue of waiver, this Court held:

“The general principle is that every one has a right to waive and  to agree to waive the advantage of a law or rule made solely for  the  benefit  and  protection  of  the  individual  in  his  private  capacity which may be dispensed with without infringing any  public right or public policy. Thus the maxim which sanctions  the non-observance of the statutory provision is  cuilibet  licet  renuntiare  juri  pro  se  introducto. (See Maxwell  on  Interpretation of Statutes, Eleventh Edn., pp. 375 and 376). If  there  is  any  express  prohibition  against  contracting  out  of  a  statute in it then no question can arise of any one entering into a  contract  which  is  so  prohibited  but  where  there  is  no  such  prohibition it will have to be seen whether an Act is intended to  have a more extensive operation as a matter of public policy. In  Halsbury’s Laws of England, Vol. 8, Third Edn., it is stated in  para 248 at p. 143:  

“As a general rule, any person can enter into a binding  contract to waive the benefits conferred upon him by an  Act of Parliament, or, as it is said, can contract himself  out  of  the  Act,  unless  it  can  be  shown  that  such  an  agreement is in the circumstances of the particular case  contrary  to  public  policy.  Statutory  conditions  may,  however, be imposed in such terms that they cannot be  waived by agreement, and, in certain circumstances, the  legislature  has  expressly  provided  that  any  such  agreement shall be void.”

(emphasis supplied)

49. In Manak Lal v. Dr. Prem Chand Singhvi (supra), this Court held  

that  the  constitution  of  the  Tribunal  was  vitiated  due  to  bias  because  

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Chairman of the Tribunal had appeared against the appellant in a case but  

declined to nullify the action taken against him on the recommendations of  

the Tribunal on the ground that he will be deemed to have waived the right  

to raise objection of bias.  Some of the observations made in that case are  

extracted below:

“……………The alleged  bias  in  a  member  of  the  Tribunal  does not render the proceedings invalid if it is shown that the  objection against the presence 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 inferred  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  question. As Sir John Romilly, M.R., has observed in  Vyvyan  v.  Vyvyan “waiver or acquiescence, like election, presupposes  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”.  If,  in  the  present  case,  it  appears  that  the  appellant knew all the facts about the alleged disability of Shri  Chhangani and was also aware that he could effectively request  the  learned  Chief  Justice  to  nominate  some  other  member  instead of Shri Chhangani and yet did not adopt that course, it  may well be that he deliberately took a chance to obtain a report  in his favour from the Tribunal and when he came to know that  the report had gone against him he thought better of his rights  and raised this point before the High Court for the first time. In  other words, though the point of law raised by Shri Daphtary  against  the  competence  of  the  Tribunal  be  sound,  it  is  still  necessary  for  us  to  consider  whether  the  appellant  was  precluded  from raising  this  point  before  the  High  Court  by  waiver or acquiescence.

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From the record it is clear that the appellant never raised this  point before the Tribunal and the manner in which this point  was  raised by him even before  the  High Court  is  somewhat  significant. The first ground of objection filed by the appellant  against  the  Tribunal’s  report  was  that  Shri  Chhangani  had  pecuniary  and  personal  interest  in  the  complainant  Dr  Prem  Chand. The learned Judges of the High Court have found that  the allegations about the pecuniary interest of Shri Chhangani  in  the  present  proceedings  are  wholly  unfounded  and  this  finding has not  been challenged before us by Shri  Daphtary.  The learned Judges of the High Court have also found that the  objection was raised by the appellant before them only to obtain  an  order  for  a  fresh  enquiry  and  thus  gain  time.  It  may  be  conceded in favour of Shri Daphtary that the judgment of the  High Court does not in terms find against the appellant on the  ground  of  waiver  though  that  no  doubt  appears  to  be  the  substance of their  conclusion.  We have,  however,  heard Shri  Daphtary’s  case  on  the  question  of  waiver  and  we  have  no  hesitation in reaching the conclusion that the appellant waived  his objection deliberately and cannot now be allowed to raise  it.”

       (emphasis supplied)

50. In Dhirendra Nath Gorai v. Sudhir Chandra AIR 1964 SC 1300, a  

three Judge Bench of this Court considered the question whether the sale  

made without complying with Section 35 of the Code of the Bengal Money  

Lenders  Act,  1940  was  nullity  and  whether  the  objection  against  the  

violation  of  that  section  could  be  waived.   After  examining the  relevant  

provisions, the Court held:

“A waiver is an intentional relinquishment of a known right, but  obviously  an  objection  to  jurisdiction  cannot  be  waived,  for  

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consent  cannot give a court  jurisdiction where there is  none.  Even if there is inherent jurisdiction, certain provisions cannot  be  waived.   Maxwell  in  his  book  “On  the  Interpretation  of  Statutes”, 11th Edn., a p. 357, describes the rule thus:

“Another maxim which sanctions the non-observance  of a statutory provision is that cuilibet licet renuntiare  juri pro se introducto.  Everyone has a right to waive  and to agree to waive the advantage of a law or rule  made  solely  for  the  benefit  and  protection  of  the  individual  in  his  private  capacity,  which  may  be  dispensed with without infringing any public right or  public policy”.

The same rule is restated in “Craies on Statute Law”, 6th Edn.,  at p. 269, thus:

“As a general rule, the conditions imposed by statutes  which authorise legal proceedings are treated as being  indispensable to giving the court jurisdiction.  But if it  appears that the statutory conditions were inserted by  the legislature simply for the security or benefit of the  parties  to  the  action themselves,  and that  no public  interests  are  involved,  such  conditions  will  not  be  considered  as  indispensable,  and  either  party  may  waive them without  affecting the jurisdiction of the  court.”

51. In  conclusion,  we  hold  that  belated  raising  of  objection  against  

inclusion of respondent No.3 in the Committee under Section 3(2) appears to  

be a calculated move on the petitioner’s part.  He is an intelligent person and  

knows that in terms of Rule 9(2)(c) of the Judges (Inquiry) Rules, 1969, the  

Presiding Officer of the Committee is required to forward the report to the  

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Chairman within a period of three months from the date the charges framed  

under Section 3(3) of the Act were served upon him.  Therefore, he wants to  

adopt every possible tactic to delay the submission of report which may in  

all probability compel the Committee to make a request to the Chairman to  

extend the time in terms of proviso to Rule 9(2)(c).  This Court or, for that  

reason, no Court can render assistance to the petitioner in a petition filed  

with the sole object of delaying finalisation of the inquiry.

52. However, keeping in view our finding on the issue of bias, we would  

request the Chairman to nominate another distinguished jurist  in place of  

respondent  No.3.   The  proceedings  initiated  against  the  petitioner  have  

progressed only to the stage of framing of charges and the Committee is yet  

to  record  its  findings  on  the  charges  and  submit  report.   Therefore,  

nomination  of  another  jurist  will  not  hamper  the  proceedings  of  the  

Committee and the reconstituted Committee shall be entitled to proceed on  

the charges already framed against the petitioner.

53. In  the  result,  the  writ  petition  is  dismissed  with  the  aforesaid  

observations.

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…..…..…….………………….…J. [G.S. Singhvi]

…..…..……..…..………………..J.                          [Chandramauli Kumar Prasad]

New Delhi July 05, 2011.

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