TaxTMI 
TaxTMI 
TaxTMI 
2011 (7) TMI 1358
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....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 conflict of duty and interest, as I did not render ....
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....self 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 ....
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....ived 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. 5. It appears that Hon'ble Rajya Sabha Members have be....
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....ials. 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 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 c....
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....fice 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 opp....
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....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 ....
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....ice 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 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, ....
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....se 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. ....
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.... 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 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 ....
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....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 signifi....
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....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 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....
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....e 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 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 i....
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....e 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 ....
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....re 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 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, Tucke....
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....hin 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 c....
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....inistrative 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 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 Con....
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.... 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." 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 o....
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....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 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....
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....o 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 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....
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.... 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 time....
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....ended 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 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 groun....
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....d 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 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....
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....f 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 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....
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....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 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 i....
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....n 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 i....
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....ave 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' 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 imparti....
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..... 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 p....
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....ation 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 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 ....
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....e. 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 probabi....
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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 ap....
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....rned 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: "Actual bias would....
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....elevant 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 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........." ....
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....espondent 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 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. ....
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....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 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 Chairm....
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.... 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 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.....
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....ce 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 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 wai....