ATTRIBUTES OF BIAS

PRESENT REFERENCE- B-5/e/13 aprilSERIES- B-5/07 FEB
BACK REFERENCE B-5/d/25 Feb

ATTRIBUTES OF BIAS

The interests and favour are two essential elements of bias- to judge its presence and as well as its degree which are elementry to decide disqualification of a judge on the ground of bias. The interests has prima-facie connection with financial interests whereas the favour is concerned with relationship to a party or witness. Any pecuniary interests however small it may be, is sufficient to qualify a person as biased and disqualify a judge on the ground of bias. The relationship to a party or witness is to be judged in the light of the facts of the case and does not disqualify a person on the ground of bias.

The guiding principle is that if a person or judge has any interest legal or illegal in the outcome of the case then he qualifies to be termed as biased. Here the law does not reckon the amount of interest. In order to understand this it will be worthwhile to know that in the 19th century the ground of disqualification of magistrates was their interest in the outcome of litigation as ratepayers who would ultimately bear the cost of unsuccessful proceedings. The rudimentary element of financial interests to be disabling has to be direct. The indirect or remotely linked pecuniary interest does not qualify for bias. It is now a accepted principle.

The fear of bias arising out of acquaintance or kinship with the disputants can be seen in the early statute which forbade a judge from sitting in court of the country of his birth. These principles were applicable as late as 1739 as far as criminal cases were concerned and as late as 1809 where civil litigation were concerned. But in modern times more than mere acquaintanceship or distant relationship would be needed before a judge were disqualified though there is no hard and fast rule. Here comes the question of degree. In cases where a advocate practices in a court of sitting judge of his father,there is a established likelihood of bias but a advocate who practices in a HIGH COURT where a judge who is friend of his father who himself is also a sitting judge of the same HIGH COURT, the likelihood of bias does not arise. However it wont be improper for a advocate to practice in a court where his father is one of sitting judges amongst others who are listening the case.

The decision of a judge or a person or a tribunal would be vitiated if it could be established that the same person is working as accuser as well as judge. This principle is applied steadfastily. It is not necessary that the prosecutor should himself be a judge, his mere presence among the adjudicators is sufficient to invalidate a decision.



TO BE CONTINUED