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.
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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
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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
22
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
23
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,
24
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
25
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:-
26
(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
27
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
28
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
29
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.
30
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
31
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:
32
"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
33
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
34
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)
. Ver
y
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
35
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
36
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."
37
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.,
38
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.
39
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
40
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.
41
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
42
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
43
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
44
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
45
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
46
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.
47
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,
48
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
49
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
50
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
51
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.
52
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
53
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."
54
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
55
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
56
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
57
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
58
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
59
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:
60
"..........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
61
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
62
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.
63
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
64
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:
65
"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
66
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
67
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
68
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
69
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
70
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
71
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
72
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
73
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
74
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.
75
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
76
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
77
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.
78
..........................................J.
[G.S. Singhvi]
...........................................J.
[Chandramauli Kumar Prasad]
New Delhi
July 05, 2011.
