Justice P.D. Dinakaran vs Hon'Ble Judges Inquiry Committee & Ors

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.