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8. The Courts have evolved the principles governing bias i.e., real likelihood of bias test and reasonable suspicion test. For the real likelihood of bias test, the paramount consideration is from the point of view of a fair minded informed observer. Insofar as the reasonable suspicion test is concerned, the test is from the point of view of a reasonable common mind. Though the Courts have evolved these two principles, in effect there is little difference between the two. A fair minded man also has to be reasonable and vice versa. What is reasonable is a quality that has to be attributed to a fair minded informed person. Similarly, a reasonable member of the public has to exhibit fairness. After all the principles governing natural justice are ingrained in the conscious of a man, thus the words reasonable man and a fair minded man are interchangeable to be applied to the facts of a particular case by the Court while testing a possible existence of a bias. The concept of informed observer is one which is developed by the Courts. It is not as if a reasonable member of the public is neither complacent nor unduly sensitive or suspicious as held by Kirby J in Johnson v. Johnson (2000) 200 CLR 488, 509. A reasonable man is not a rustic, but reasonably informed. The word well informed has to be seen in the context of worldly knowledge which a reasonable man is also expected to possess. To put it differently, a high degree of intellect is not required. Ultimately it is for the Court to decide whether there exists a likelihood or reasonable apprehension of bias warranting interference. The background of bias has to be very reasonable suspicion of bias or a real likelihood of bias. In fact these two concepts are prefix to bias. The Courts are required not to delve into the actual bias but to find the likelihood or a reasonable existence of it. Therefore, real bias is not a relevant inquiry especially when the same cannot be established with ease. Thus a reasonable apprehension of bias and real likelihood of bias are surrogates for bias. This is also for the reason that apart from rule of law and fairness, there can be an unconscious bias exists though not intended.
10. Coming to an official bias, it can transform into legal malice at times but not in every case. To decide as to whether there exists a likelihood or reasonable suspicion of bias, the test shall not be unacceptably high considering the concept and proof of bias.
11. An apparent bias can be identified with the relative ease in pecuniary and personal as against official. Deciphering an official bias is an arduous job for a Court. That is the reason why the tests of likelihood or reasonable suspicion of bias is required to be used.
12. In P.D.Dinakaran v. Hon'ble Judges Inquiry Committee ((2011) 8 MLJ 331 (SC), the Apex Court after considering the judgments of the foreign Courts as well as our High Courts summed up the principles of bias by applying the test of real likelihood from the point of fair minded informed observer. The following paragraph would be apposite:
71. 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 they 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 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. Regarding the test of real likelihood of bias, it was none the less held what is important is real danger of bias on the part of the person against whom such apprehension is expressed. It was also held that human probabilities and ordinary course of human conduct are the parameters to be taken in mind while indulging in such test.
13. In State of Gujarat v. R.A. Mehta, (2013) 1 MLJ 362 (SC), while dealing with the doctrine of bias, the Apex Court held that reasonable suspicion that there is likelihood of bias affecting decision would be sufficient to invoke the doctrine of bias. Therefore, in effect the test of likelihood of bias or reasonable apprehension of bias are interchangeable in nature and consequently, the parameters required for such a test will also be construed to be the same.
Fairness and Rule of Law:
14. Instrumentality of a State and its officials must conform to the Rule of Law leading to fairness in action. It has been well established that fairness is a facet of Article 21 of the Constitution of India. Such a fairness in action is also mandatorily to be followed in a criminal investigation. A right to a fair investigation is not only a constitutional right but a natural right as well. In Sathyavani Ponrani v. Samuel Raj, 2010 (4) CTC 833, while dealing with fair investigation, this Court has held that the same is mandatory under Articles 14, 21 and 39 of the Constitution of India. The following paragraphs would be apposite: