What is bias? What is its significance in Administrative law?
The word Bias itself expresses its meaning that a man should not be a judge in his own case. The concept of bias has a close connection with Administrative law. Administration pre-supposes absence of bias in its activities. Bias makes administrative action an invalid action and this can be challenged in a court of law on the sole basis of bias. Bias has to be excluded in judicial process also. An essential element of judicial process is that the judge has to be impartial and neutral and to be in a position to apply his mind objectively to the dispute before him. Proceedings before a judge may be vitiated if he is biased, if there are factors which may influence him to improperly favour one party at the cost of the other party in the dispute. The important question is to be examined is to what extent the rule against bias applies to adjudicatory bodies. Bias is usually of three kinds: pecuniary bias, personal bias, bias as to subject matter or policy bias.
A direct pecuniary interest, howsoever small or insignificant, will disqualify a person from acting as a judge. A judge should not have a pecuniary interest in the dispute in which he is acting as a judge. As having interest in the dispute he may take such a decision which will harm the other party unreasonably. And this will go against the principles of natural justice.
Various factors contribute to personal bias in the adjudicator for or against one party in a dispute before him. He may be a friend or relation of the party,or have some business or professional relation with him, or may have some personal animosity or hostility against him.
The test of bias is whether there was a real likelihood of bias. Real likelihood of bias means the suspicion of bias must be based on reasonable circumstances which indicate that there is every possibility of occurrence of bias from the perspective of a common man.
Bias as to subject matter or policy bias
Bias may arise because the adjudicator may have a general interest in the subject matter in dispute becaue of his association as a member or otherwise of a private body, or with the administration in his official capacity. Generally speaking these do not operate as disqualification, unless the adjudicator has intimately identified himself with the issues in question. Bias as to subject matter happens in three types: Partial connection with the issue, Departmental or official bias, Prior utterance and pre-judgement of issues, Acting under dictation.
- Partial connection with the issue
To disqualify there has to be some close and direct connection the adjudicating authority and the issue in question. The connection should not be remote.
- Departmental or official bias
In many departmental proceedings 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 is attached, in a dispute between the department and a private party, or may have a policy bias.
- Prior utterance or pre-judgement of issues
Sometimes the minister or the official concerned may announce before hand the general policy which he intends to follow. The adjudicator must handle the case with open mind, he should keep aside his opinion on the issue and decide the case completely on the particular facts of the given case.
- Acting under dictation
Sometimes, the adjudicating authority may dispose of a case under dictation from a superior authority. The adjudicating authority without applying its own mind, just applying the order of the senior on the case, violates the principles of natural justice. However dictation is different from direction given by senior official. Direction means guidance by the superior authority as to how the case is to be decided by the authority.
After considering altl these points it can be concluded that rule of bias has application in administrative law and it is an integral part of administrative law.
How audi alteram partem forms an integral part of natural justice?
It is the first principle of civilized jurisprudence that person against whom an action is sought to be taken, or whose right or interest is being affected, should be given a reasonable opportunity to defend himself.
The main question regarding this is what are the components of fair hearing?
There is no uniform body of procedural norms to be followed by adjudicatory bodies.These norms may vary from a mere written submission by the affected person to a full-fledged hearing. Hearing involves a number of stages and it will be convenient to see what the position is with respect to each of these.
Generally hearing involves following stages:
- Hearing: A hearing to be fair must fulfill several conditions-
- Receiving evidence produced by the individual
- Disclosure of materials to the party
- Opportunity to cross-examine witnesses
- Right of counsel
- Reasoned Decisions
A basic principle of natural justice is that before adjudication starts, the authority concerned should give to the affected party a notice of the case against him so that he may adequately defend himself. Any proceeding taken without notice violate natural justice. It is the sine qua non of fair hearing.
Oral hearing is not regarded as an essential part of natural justice that in every case there should be oral hearing. Natural justice does not necessarily predicate an oral hearing unless the context requires otherwise.
Right of counsel
This right is generally denied in administrative law in India and it is justified on the ground that it saves expenses and thus protects the poor against the rich, reduces delay, and prevents the proceedings from being formalized and technical. But it is permitted in exceptional cases.
Until a few years back, it was thought that the requirement for adjudicatory bodies to give reasons for their decisions was not a part of natural justice and, accordingly, adjudicatory bodies were not obliged to give reasons in support of their decisions.
But after the decision of Maneka Gandhi’s case it is now settled law of the land that it is necessary to give reasons for decision of the case.
Thus audi alteram partem is an integral part of Natural justice. Denial of this right amounts to violation of natural justice