NEMO JUDEX IN RE SUA
Literally, meaning of NEMO JUDEX IN RE SUA “It means no man can be a judge in his own case”. In other words it means rule against bias and it is based on three maxims-:
- “No man shall be judge in his own case”
- “Justice should not only be done, but manifestly and undoubtly be seen to be done”
- “Judges, like ceaser’s wife should be alone suspicion”.
In Franklin v. Minister of Town and Country planning[1] Lord Thankerton defines bias as follows-:
“My lord, I could wish that the use of the word ‘bias’ should be confined to proper sphere. Its proper significance in my opinion is to denote a departure from the standard of even handed justice which the law requires from those who occupy judicial office, or those who are commonly regarded as holding a Quasi-judicial office, such as an arbitrator.”
The first requirement of natural justice is that the judge should be impartial and neutral and to be in a position to apply his objectively to the dispute before him. He cannot act as judge of a cause which he himself has same interest either pecuniary or otherwise it is against the neutrality. If the judge is subject to bias in favor or against either party to the dispute or in a position that a bias can be assumed, he is disqualifies to act as a judge. It is a well settled principle of law that justice could not only be done but manifestly and undoubtedly be seen to be done. Justice can never be seen to be done if a man acts as a judge in his own cause or is himself interested in its outcome. This principle applies not only to judicial proceeding but also to Quasi-judicial as well as administrative proceeding.
TYPES OF BIAS
- Official Bias or Subject-matter bias
Bias may arise because the adjudicator may have a general interest in the subject matter in dispute because of his association as a member of otherwise with a private body or with the administration in his official company. An administrator adjudicator cannot develop the same kind of neutrality and objectivity towards the issues and institution being presented before him as is the characteristic of a judge.
According to Griffith and street, “only rarely will this bias invalidate proceeding”. A mere general interest in the general object to be pursued would not disqualify a judge from deciding the matter. There must be some direct connection with the litigation[2].
According to wade, mistrial or departmental policy cannot be regarded as a disqualifying bias[3]
Also, in many adjudicatory proceeding before bureaucratic authorities one of the parties is usually the administration itself. Therefore an authority may have official bias towards the department to which it has attached in a dispute between the department and a private party or may have a policy bias i.e. it may be interested in projecting and pursuing policies of the department.
- Personal Bias A number of circumstances may give rise to personal bias. Here a judge may be a relative or business associate of a party. He may have some personal grudge, enmity or grievance or professional rivalry against him. In view of these factors there is every likelihood that the judge may be biased towards one party or prejudiced towards the other.
A crude form of personal bias is when the manger of a factory himself conducts inquiry against the workmen who are alleged to have assaulted him[4]or when a person sits on a gram panchayat bench to hear appeal against his conviction[5] or when the adjudicator is a relation of the parties[6] or when a person sits on the selection board to select person for a post for which he himself is a candidate even though he may not participate in it’s deliberation when his name is considered [7]or when the selection committee to select person for civil posts includes the son-in-law of a selected candidate. [8]
Section 30, of Court management of Country code, talks about personal Bias
Pecuniary Bias
There is a presumption that any direct financial interest howsoever small in the matter in dispute disqualifies person from adjudicating. So, a direct pecuniary interest however small will disqualify a person from acting as a judge.The rule against bias (nemo iudex in causa sua, or “no man a judge in his own cause”)
Bias means an operative prejudice, whether conscious or unconscious, in relation to a party or issue.
Such operative prejudice may be the result of a preconceived opinion or a predisposition or a predetermination to decide a case in a particular manner, so much so that it does not leave the mind open.
A person cannot take an objective decision in a case in which he has an interest, for, as human psychology tells us, very rarely can people take decisions against their own interest.
The rule against bias is concerned with appearances- actual bias need not be established.
(i) Personal bias
Personal bias arises from a certain relationship equation between the deciding authority and the parties, which incline him unfavorably or otherwise on the side of one of the parties before him.
Two main tests of personal bias are: ‘reasonable suspicion’ test- looks to outward appearance, and ‘real likelihood’ test- focuses on the court’s own evaluation of possibilities. In most cases though, they lead to the same result.
Muluki Aain, Chapter on Court Management, Sec. 30- Judge may not hear his or his relative’s case.
(ii) Pecuniary bias
Judicial approach is unanimous and decisive on the point that any financial interest, howsoever small it may be, would vitiate administrative action.
A pecuniary interest will disqualify a judge even though it is established that the judge was not influenced by the interest in reaching a decision.
But the rule sometimes is not applied where the judge has no direct financial interest in the outcome of the case, though having a pecuniary interest.
(iii) Subject-matter bias
Those cases fall within this category where the deciding officer is directly, or otherwise, involved in the subject-matter of the case. Here, mere involvement would not vitiate the administrative action unless there is real likelihood of bias.
In Gullapalli Nagewara Rao v. APSRTC (AIR 1959), the Indian SC quashed the decision of the Andhra Pradesh government to nationalize road transportation on the ground that the Secretary of the Transport Department who gave the hearing was interested in the subject-matter.
In the USA and England, predisposition in favour of a policy in the public interest is not considered as legal bias vitiating administrative action.
(iv) Departmental Bias
The problem of departmental bias is something that is inherent in the administrative process, and if it is not effectively checked, it may negate the very concept of fairness in administrative proceeding.
In Gullapalli Nagewara Rao v. APSRTC (AIR 1959), the Indian SC quashed the decision of the Andhra Pradesh government to nationalize road transportation. One of the grounds for challenge was that the Secretary who gave the hearing was biased, being the person who initiated the scheme and also being the head of the department whose responsibility it was to execute it.
Thereafter the Act was amended and the function of hearing the objection was given to the minister concerned. The Gov. decision was again challenged In Gullapalli Nagewara Rao. However, on this occasion the Supreme Court rejected the challenge on the ground that the minister was not a part of the department in the same manner as the Secretary was.
The problem of department bias also arises in a different context- when the functions of judge and prosecutor are combined in the same department. It is not uncommon to find that the same department which initiates a matter also decides it.
In the US and England, there have partially resolved this issue with the institution of hearing officers and inspectors.
(v) Preconceived notion bias
Bias arising out of preconceived notions is a very delicate problem of administrative law. On the one hand, no judge as a human being is expected to sit as blank sheet of paper, and on the other hand, preconceived notions would vitiate a fair trial.
The decision-maker must remain open to persuasion. This may seem especially unlikely in circumstances where the minister has formulated a policy and then hears representations against that policy. The courts accept that in such circumstances an element of bias must be accepted.
Doctrine of Necessity
Bias would not disqualify an officer from taking an action if no other person is competent to act in his place. This exception is based on the doctrine of necessity.
The doctrine of necessity makes it imperative for the authority to decide, and considerations of judicial propriety must yield.
Cases Relating to Natural Justice
3.1 Rajkumar Adhikari v. HMG[9]
According to court management act no. 30 of Muluki Ain of Nepal it is said that one cannot be a judge in his/her own case and in this case therefore, the decision of the judge failed where judge document and his/her signature was itself in question.
3.2 Jyoti Baniya v. house of representative[10]
In this case a pursuant to the Section 60 of forest act, if there is prosecution and decision maker in same office that is known as official bias. So court held that, second forest officer must file the sue in front of district officer who was appointed as jury with taking opinion of prosecutor as per the mentioned law.
3.3 Yagmurti Banjade V. bagmati special court.[11]
No one can be judge in subject in which he is involved. The judge should do his work on the basis of evidence and he should give judgment which gives logic and argument And should always work in the legal framework and he should be obedient while doing so.
3.4 Babu RamPoudel v. HMG[12]
It is also a landmark case from the point of view of natural justice where the court by issuing the writ of Mandamus ordered HMG to reinstate the petitioner in the same post by quashing the illegal decision of the administration and the right of the petitioner to the hold the post and continue the service was protected by applying the principle of natural justice.
3.5 Iman Singh Gurung v. HMG [13]
The Supreme Court emphasized the importance of natural justice and stated that presentation of evidence an opportunity of legal aid and fairness in the legal proceeding are all necessary requirement of Justice. The court further expressed that a citizen has a right to go to the independent and competent court or judicial body for the determination of his basic rights and liabilities and these requirement of a citizen cannot be infringed without essential or justified reason.
[1] 1948, AC 87
[2] J.J.R UPADHAYA, Administrative Law,(Allahbad : Central law Agency, 2001), 162
[3] H.W.R Wade, ADMINISTRATIVE LAW,(Walton street ,Oxford University press, 1993, 6th edition), 489-493
[4] Meengal tea state v. workmen, AIR 1963 S.C
[5] Ram jag singh v. Bihar, AIR 1958 PAT 7
[6] Amalok Chand V. SDO AIR 1962 AS 580
[7] A.K Kraipak V. India, AIR, 1970 SC
[8] D K Khanna V. India, AIR 1970 HP 30
[9] NKP 2055,Decision no. 3495, 33
[10] Supreme court bulletin 2055, no. 17, 2-3
[11] NKP 2027, p 157
[12] NKP 2051
[13] NKP 2049
No man shall be judge in his own case, or no man can act as both at the one and the same time a party or as suitor and also as a judge, or the deciding authority must impartial and with out bias and, This natural justice consists of the rule against bias or interest and is based on two maxim
- No man shall be judge in his own cause
- Justice should not only be done, but manifestly and undoubtedly be seen to be done
According to the dictionary meaning any thing which tends or may be regarded as to cause such a person to decide a case other wise than on evidence must be held to be biased. So the first requirement of natural justice is that the judge should be impartial and natural and must be free bias. Usually, there are three kinds and are namely as pecuniary Bias, personal bias, departmental bias they all carry the same sense, thought tin different ways that impartiality is the most important ingredient of justice
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