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2011 (7) TMI 1358
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....he 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:   "Although, there is no c....
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....blic 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 improp....
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....nstitution 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 Supr....
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....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. 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 submit....
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....hri 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 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 eleva....
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....ized 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,....
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....ef 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. 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 docume....
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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 c....
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.... 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 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 d....
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....e 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 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....
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....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, 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 ....
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....h 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:- (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 fu....
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.... 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 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 p....
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....thorities 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 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 n....
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....resents 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 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 l....
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....ion 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 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 pri....
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....enable 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 th....
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....ld 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. 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 dec....
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.... 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. 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 ....
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....g 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 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....
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....idering 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 he....
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....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. 31. In R ....
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....tion, 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 B....
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....3 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 tha....
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....l 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. 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 st....
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....ule 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." 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' f....
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....0m. 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 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....
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....ng 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 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 b....
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....cult 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:   "..........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 conjectu....
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....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 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 proce....
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....r 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 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 r....
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....ious 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 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 ....
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.... 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 l....
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....nst 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 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 noti....
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....e 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. Statu....
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.... consider whether the appellant was precluded from raising this point before the High Court by waiver or acquiescence. 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 ....