Nemo judex in causa sua

JAMIA MILLIA ISLAMIA

Faculty of law

Project

Principle of Natural Justice: Nemo judex in causa sua (One cannot be made a
judge in his own cause or the rule against bias)

Administrative Law

Submitted to: Bhavna Sharma

Submitted by: Mohd Altmash

BA.LLB (Regular) 6th Semester

Batch: 2017 - 2022

Page | 1
 Nemo judex in causa sua

ACKNOWLEDGEMENT

The project titled “Principle of Natural Justice: Nemo judex in causa sua (One cannot be made a
judge in his own cause or the rule against bias) " is submitted to the Faculty of Law, Jamia Millia
Islamia for Administrative Law as part of Internal Assessment is based on my original work
carried out under the supervision of Bhavna Sharma ma'am from 25 March—to 15 April. The
Research work has not been submitted elsewhere for award of any degree.

The material borrowed from other sources and incorporated in the research paper has been duly
acknowledged.

I understand that I myself would be held responsible and accountable for plagiarism, if any,
detected later on.

I thank everyone who helped me to complete this research paper.

Mohd Altmash

Page | 2
 Nemo judex in causa sua

Table of Content Page No.

1. Introduction 5-6

2. Definition 6

3. Objective 6

4. Principles of Natural Justices 7

5. Nemo iudex in causa sua 7-8

 Other names
 Rule against bias or bias of interest

6. Kinds of Bias 8-13

 Pecuniary Bias
 Personal Bias
 Test for bias
 Bias as to subject matter
 Departmental Bias
 Bias on Account of Obstinacy
 Policy Bias
7. Exception to the rule against bias or the Doctrine of Necessity 13-14

8. Effect of Breach of Natural Justice 14-15

9. Present Position 15

10.Suggestions and Conclusion 15-16

11. References 17

Page | 3
 Nemo judex in causa sua

Case Laws:

1) Vionet v. Barrett,Lord, (1885) 55 LJ RB 39.

2) In Hopkins v. Smethwick Local Board Of health, (1890) 24 QB 713.

3) Dr. Benham's case, (1610) K8 Co. Rep. 11361.

4) R. v. Hendon Rural District Council, (1852) 3 HLC 579.

5) Visakhapatnam Co-operative Motor Transport Ltd. v. G. Bangar Raju, AIR 1965 SC 45.

6) A.k. kripak v. Union of India, AIR 1970 SC 150.

7) Meenglass Tea Estate v. Their Workmen, AIR 1963 SC 1719.

8) Kirti Deshmankar v. Union of India, (1991) 1 SCC 104.

9) Tata Cellular v. Union of India, (1996) 4 SCC 104.

10) Election Commission of India v. Dr. Subramaniam Swamy, AIR 2000 SC 3243.

11) Supreme Court in Hari v. Dy. Commr. of Police, (1933) 2 KB 696.

12) Gullampally Nageswara Rao v. A. P.S.R.T.C, AIR 1959 SC 308.

13) K. Chelliah v. Chairman, Industrial Finance Corporation, AIR 1973 Mad. 122.

14) Ridge v. Baldwin, (1836) A & E. 433 (448-49).

Page | 4
 Nemo judex in causa sua

1. Introduction

Man is a social animal, what is justified and unjustified is written in him by nature itself. With
the evolution of human race, the problem of balancing the social, economic and political
relations between governed and government and individuals inter se became more complex. The
desire of establishing orderly and peaceful society continuously forced man to be in search of
higher norms, which can effectively regulate the human behavior and ensure justice to the
deserved.

Though nature provided its own laws to govern all creatures, the wise man from time to time
argued that there are certain principles of justice regarded as fundamental and foundational to
almost all legal systems which are called ‘principles of natural justice’. In this sense, natural
justice implies fairness, reasonableness, equity and equality. It represents higher procedural
principles developed by judges, which shall be followed by the judicial, quasi-judicial and
administrative bodies in making a decision affecting the rights or status of an individual.

The expression “Principles of Natural Justice” is derived from the Roman Law word “Jus
Natural”. It says such principles do not have force of law as they may or may not form part of
statute but they are necessarily to be followed. All civilized States recognise and adherence the
principles of natural justice. These principles possess supreme importance when a quasi-judicial
body embarks on determining disputes between the parties, or any administrative action
involving civil consequences is in issue. These principles are well settled1.

Natural justice is an expression of English common law, and involves a procedural requirement
of fairness. These principles have great significance in the study of Administrative law. It is also
known has substantial justice or fundamental justice or Universal justice or fair play in action.
The principles of natural justice are not embodied rules and are not codified. They are judge
made rules and are regarded has counterpart of the American procedural due process 2.

The term Natural Justice is not used in Indian Constitution anywhere but it has passed the golden
thread of natural justice. There are many articles, the social and economic justice can be seen in
1
Piotr J. Malysz, Nemo iudex in causa sua as the basis of Law, Justice, and Justification in Luther’s Thought,
Harvard Divinity School, 366 ( last visited on 19 April, 2020).
2
Adrian Vermeule, Contra Nemo ludex in Sua Causa: The Limits of Impartiality, The Yale Law Journal, 122: 384
(2012) ( last visited on 18 April, 2020).

Page | 5
 Nemo judex in causa sua

the Preamble of Constitution, Article 311 has many features of natural justice without explicit
mention of it, according to Article 14; violation of natural justice is equal to violation of equality,
and Article 21, which are based on principles of natural justice.

2. Definition

There is no precise and scientific definition of natural justice. However, the principles of natural
justice are being acceptable and enforced. Different judges, lawyers and Scholars define it in
various ways.

 In Vionet v. Barrett,Lord3, Lord Esher M.R has defined it as the natural sense of what is
right and wrong.
 In Hopkins v. Smethwick Local Board Of health4, Lord Esher M.R defines natural
justice as fundamental justice.
 Lord Parker has defined it as duty act fairly.

 Justice Bhagwati has defined it as fair play in action.

3. Objective

Objectives of principles of natural justice:

 To ensure fairness in social and economical activities of the people and also shields
individual liberty against the arbitrary action.
 To promote equity, fairness and equality.
 To maintain public confidence in the legal system the basis for the rule against bias is the
needed.

4. Principles of Natural Justices

3
(1885) 55 LJ RB 39
4
(1890) 24 QB 713

Page | 6
 Nemo judex in causa sua

 The natural justice mainly focuses on the following:

1) Nemo judex in causa sua – One cannot be made a judge in his own cause or the rule
against bias.
2) Audi alteram partem (hear the other side) – A judge should always listen to the other
party or a fair hearing must should be done before any order.
 Essentials of fair hearing- To constitute fair hearing, the following ingredients are
to be satisfied-
 Notice
 Hearing

3) Speaking orders or reasoned decisions.

The first two have come to us from the Roman Law and the third one is a recent Innovation due
to the rapid development of the constitutional as well as administrative law.

5. Nemo iudex in causa sua

Nemo iudex in causa sua which means no man shall be judge of his own cause. This principle
ensures an independent and impartial justice.
The objective of this principle is ‘when there is a dispute between two parties judge shall always
be the impartial third party’. It means that the judge shall not be a relative, a friend, an enemy, or
otherwise related to the subject matter of the litigation.
Other names5:

 Nemo debet esse judex in propria causa or,

 Rule against bias or,
 Nemo judex idoneus in propria causa est or,
 Nemo judex in parte sua or,
 Nemo judex in re sua or,
 In propria causa nemo judex.

This principle is based on the following rule-

5
,
Vignesh war Balasubramanian Nemo judex in causa sua, 17 December, 2019, available at:
http://lawtimesjournal.in/nemo-judex-in-causa-sua/ ( last visited on 22 April, 2020.)

Page | 7
 Nemo judex in causa sua

“Justice should not only be done, but manifestly and undoubtedly be seen to be done.”

The above rules make it clear that judiciary must be free from bias and should deliver pure and
impartial justice. Judges must act judicially and decide the case without considering anything
other than the principles of evidence.
Rule against bias or bias of interest- The term bias means anything which tends to or may be
regarded as tending to cause such a person to decide a case otherwise than on evidence must be
held to be biased. In simple words, bias means deciding a case otherwise than on the principles
of evidence.

6. Kinds of Bias

The rule against bias may be classified under the following heads:

 Pecuniary bias,
 Personal bias,
 Bias as to subject matter.
 Department bias,
 Policy bias, and
 Bias on account of Obstinacy

6.1 Pecuniary Bias:

Pecuniary bias arises, when the adjudicator/ judge has monetary/ economic interest in the subject
matter of the dispute/ case. The judge, while deciding a case should not have any pecuniary or
economic interest6. In other words, pecuniary interest in the subject matter of litigation
disqualifies a person from acting as a judge7.
Relevant leading cases on this point are:

6
Jeejeebhoy v. Assistant collector, Thana (AIR 1965 SC 1096)
7
Divi Jain, Nemo in propria causa judex, esse debet / The Rule Against Bias, 22 September, 2017, available at:
http://www.legalserviceindia.com/article/l25-Nemo-in-propria-causa-judex,-esse-debet-THE-RULE-AGAINST-
BIAS.html ( last visited on 20 April, 2020).

Page | 8
 Nemo judex in causa sua

Dr. Benham's case8-

In this case, Dr. Benham was fined for practicing in the city of London without license of the
college of Physicians. According to the statute, the college is entitled to half of the amount and
the remaining goes to the King. Coke CJ. Dis- allowed the claim (fine) on the ground that the
college had a pecuniary interest. (Fine against Dr. Benham was dismissed)

R. v. Hendon Rural District Council9-

In this case, one of the members of the planning commission was an estate agent and he was
acting for the applicant to whom permission was granted by the planning commission. The
decision of the planning commission granting the permission was quashed on the ground of
pecuniary bias.

Visakhapatnam Co-operative Motor Transport Ltd. v. G. Bangar Raju10-

In this case, the district collector as the chairman of the regional transport authority granted
motor permit to the above co-operative society, to which he was also the president.
The court set aside the collector's action on the ground of pecuniary bias.

6. 2 Personal Bias:
Personal bias arises from near and dear i.e. from friendship, relationship, business or professional
association. Such relationship disqualifies a person from acting as a judge.

8
(1610) K8 Co. Rep. 11361
9
(1852) 3 HLC 579
10
AIR 1965 SC 45

Page | 9
 Nemo judex in causa sua

Test for bias-

There are two tests for personal bias-

 The reasonable suspicion of bias test and

 the real likelihood of bias test.

In order to challenge administrative action successfully on the ground of personal bias, it is

necessary to prove that there is a reasonable suspicion of bias or a real likelihood of bias. The
former test look mainly to the outward appearance that means justice must be seen to be done.
The rule for the judges of all kinds was that they must be free from even unreasonable suspicion
of bias. The real likelihood of bias mainly focuses on the court’s own evaluation of the
probabilities.

Relevant cases on this point are-

A.k. kripak v. Union of India11-

In this case, The Supreme Court quashed the selections made by the selection board on the
ground that one of the candidates appeared before selection committee was also a member of the
selection board.

Meenglass Tea Estate v. Their Workmen 12-

In this case, the manager of the factory conducted inquiry against the workmen who were alleged
to have assaulted him. The court disqualified the manager on the ground of personal bias.
Kirti Deshmankar v. Union of India13-

In this case, the mother- in- law of a student selected for the admission to the medical college
was vitally interested in her admission. The mother in law was a member of the college and
11
AIR 1970 SC 150
12
AIR 1963 SC 1719
13
(1991) 1 SCC 104

Page | 10
 Nemo judex in causa sua

hospital council and she participated in the meeting of the council. On this ground the court held
that the selection of the student for the admission to the medical college was vitiated. The court
made it clear that it was not necessary to establish bias.
Reasonable likelihood of bias was considered sufficient to vitiate the selection for admission. In
short, for vitiating the decision on the ground of bias, it is not necessary to establish bias. It is
sufficient to invalidate the decision if it can be shown that there has been reasonable likelihood
of bias.

6.3 Bias as to subject matter:

Any interest or prejudice will disqualify a judge from hearing the case. When the adjudicator or
the judge has general interest in the subject matter in dispute on account of his association with
the administration or private body, he will be disqualified on the ground of bias if he has
intimately identified himself with the issues in dispute.
To disqualify on the ground there must be intimate and direct connection between the adjudicator
and the issues in dispute.

Relevant cases on this point are:

Gullampally Nageswara Rao v. A. P.S.R.T.C14-

In this case, the government proposed nationalization of motor transport. Objections for
nationalization were referred to be heard by the secretary to the Government, who upheld the
validity of the scheme (for nationalization). It was challenged on the ground that the said
secretary in fact, initiated the nationalization. The Supreme Court held the government
secretary's action invalid. 
K. Chelliah v. Chairman, Industrial Finance Corporation15-

In this case, the disciplinary action against an employee was taken by the chairman of the
corporation. There was statutory provision for the appeal from the chairman to the board of

14
AIR 1959 SC 308
15
AIR 1973 Mad. 122

Page | 11
 Nemo judex in causa sua

directors. The chairman was also a member of the board of directors. The chairman participated
in the meeting of the board in which the appeal was considered.
The order of the board was quashed on the ground of bias. The presence of the chairman in the
meeting of the board in which the appeal was considered created a reasonable apprehension in
the mind of the party that there was real likelihood of bias. 

6.4 Departmental Bias:

The problem of departmental bias is something which is inherent in the administrative process,
and if it is not effectively checked, it may negate the very concept of fairness in the
administrative proceeding.

It arises in different context- when the functions of judge and prosecutor are combined in the
same department. It is not uncommon to find that the same department which initiates a matter
also decides it, therefore, at times, departmental fraternity and loyalty militates against the
concept of fair hearing.

Supreme Court in Hari v. Dy. Commr. of Police16,

In this case an externment order was challenged on the ground that since the police department
which initiated the proceedings and the department which heard and decided the case were the
same, the element of departmental bias vitiated administrative action. The Court rejected the
challenge on the ground that so long as the two functions (initiation and decision) were
discharged by two separate officers, though they were affiliated to the same department, there
was no bias.

6.5Bias On Account of Obstinacy:

The word Obstinacy implies unreasonable and unwavering persistence and the deciding officer
would not take ‘no’ for an answer. This new category of bias was discovered in a situation where
a judge of the Calcutta High Court upheld his own judgment while sitting in appeal against his
16
(1933) 2 KB 696

Page | 12
 Nemo judex in causa sua

own judgment. Of course, a direct violation of the rule that no judge can sit in appeal against his
own judgment is not possible, therefore, this rule can only be violated indirectly. In this case in a
fresh writ petition the judge validated his own order in an earlier writ petition which had been
overruled by the Division Bench. What applies to judicial process can be applied to
administrative process as well.

6.6 Policy Bias:

Policy bias implies when the judge is interested in the projecting and pursuing the politics of the
department. This biasness is similar to the departmental biasness.

7. Exception to the rule against bias or the Doctrine of Necessity

When bias is provided, it disqualified the adjudicator and an impartial adjudicator should replace
him. However, there are certain extreme cases in which substitution/replacement of impartial
adjudicator is not possible. In such situations, the principle of natural justice, under necessity has
to give way.
An adjudicator who is subject to disqualification on account of bias may nevertheless, can
validly adjudicate if:
 No other person competent to adjudicate is available;
 A quorum cannot be formed without him; or
 No other competent tribunal can be constituted.
Otherwise the administration of justice breaks down and there is no other means to decide.
Though Indian courts have not expressly adopted it, this (doctrine of necessity) has been
impliedly applied in several occasions. In contempt of court, the rule that no one shall be a judge
in his own cause is not followed strictly. Similarly, in departmental enquiry in service matters the
employee appoints enquiry officer and there is every possibility that the enquiry officer acts in
favour of employer.
Tata Cellular v. Union of India17-

17
(1996) 4 SCC 104

Page | 13
 Nemo judex in causa sua

In this case, Government of India issued invitations to all the mobile operators to establish
networks in the four metro cities. Evaluation Committee which was supposed to evaluate the
tenders under Telecom Regulatory Authority of India (TRAI), had Director General of
Telecommunication in it. His son’s tender was selected at the end of the evaluation process. In
those case, Supreme Court rejected the violation of ‘Nemo judex in causa sua’ as without
Director General of Communication no tender can be selected and evaluation is not possible.
There was no choice of substitution and hence the decision was not liable to be struck down. In
this case Supreme Court applied the Doctrine of Necessity liberally. Stringent rules were laid
down by the Supreme Court in Election Commission of India v. Dr. Subramaniam Swamy.

Election Commission of India v. Dr. Subramaniam Swamy18- 

In this case, it was observed that in a multi-member commission when the chief election
commission is found to have likelihood of bias, his participation is not mandatory and the
doctrine of necessity will not apply. The proper course for him was that he could call for a
meeting and withdrew from the meeting leaving it to the other members to decide. In case there
was any difference between them, then doctrine of necessity would apply. In this case, Supreme
Court changed “Doctrine of Necessity” to “Doctrine of absolute Necessity” meaning thereby
that this doctrine can be invoked only in cases of ‘absolute’ necessity.

8. Effect of Breach of Natural Justice

When the authority is required to observe the principle of natural justice in passing an order but
fails to do so, the general judicial opinion is that the order is void.
In England, in the case of Ridge v. Baldwin19, the court held the decision of the authority void on
the ground of the breach of the rule of fair hearing.
In India, the position is well settled that the order passed in violation of the principles of natural
justice is void.

18
AIR 2000 SC 3243
19
(1836) A & E. 433 (448-49).

Page | 14
 Nemo judex in causa sua

9. Present Position

This is one of the law's great maxims, nemo iudex is in fact a shifty half-truth, useful at some
times and in some settings, useless or positively misleading in others. Perhaps many grand legal
principles have this characteristic when closely inspected. But it requires no such inspection to
see that nemo iudex is contradicted by central structural features of our constitutional order.

In our constitutional system, legislators shape their own elections and determine their own
compensation, judges decide cases about their own salaries, and administrators rule on the
validity of cases they themselves have brought under rules that they have written.

In a system like that, the real puzzle is how nemo iudex maintains its grip on the legal mind. A
well-rounded analysis should see the impartiality of decisionmakers as one institutional good
among others, to be pursued, or not, as a larger calculus of institutional optimization suggests.

10.Suggestions and Conclusion

In a social welfare State like India, the State has to perform a manifold function to realize the
constitutional dream of social, political and economic justice. ‘Justice’ is an ideal, which cannot
be attained without following the due process in every state action. However, In ancient India,
foremost duty of a judge was to maintain integrity which included impartiality and total absence
of bias or attachment. The concept of integrity was given very wide meaning and the judicial
code of integrity was very strict, Brihaspati Says: “A judge should decide cases without any
consideration of personal gain or any kind of personal bias; his decision should be in accordance
with the procedure prescribed by the texts.

Thus, every judicial, quasi-judicial and administrative authority should adopt such practices and
arrive at decisions which are fair, just and reasonable. Principles of natural justice are the guiding
procedural norms, which aim at the prevention of miscarriage of justice, by providing
independent, impartial and unbiased adjudicatory body, guided by fair procedure and
accompanied by justifiable reasons.

Page | 15
 Nemo judex in causa sua

In the concept of common law, natural justice represents higher procedural principles which is
developed by the courts and must be taken into consideration by every judicial, quasi-judicial
and administrative agency before taking any decision that adversely affects the rights of a private
individual.

The role and jurisdiction of administrative agencies is increasing at a rapid pace in India today. If
the function of the state is not charged in a just and fair manner the Rule of Law would lose its
validity. Natural Justice is firmly grounded to Article 14 and 21 of Indian Constitution. Since
violation of natural justice leads to arbitrariness, so violation of justice is violation of equality.

11.Reference

Page | 16
 Nemo judex in causa sua

1. Piotr J. Malysz, Nemo iudex in causa sua as the basis of Law, Justice, and Justification in
Luther’s Thought, Harvard Divinity School.
2. Adrian Vermeule, Contra Nemo ludex in Sua Causa: The Limits of Impartiality, The
Yale Law Journal, 2012.
3. Divi Jain, Nemo in propria causa judex, esse debet / The Rule Against Bias, 22
September, 2017

Online Resources:
1. http://www.legalserviceindia.com/
2. http://www.lawtimesjournal.in/
3. http://www.indiankanoon.org/.
4. http://www.casemine.org/.
.

Page | 17