Glossary: Nemo Debet Esse Judex In Propria Sua Causa

Definition and Meaning

● Nemo debet judex in propria sua causa is a latin principle which translates to “no one should be made a judge in their own case”.

● It is also known as the Doctrine of bias or the Rule against bias and is established as one of the two main principles associated with natural justice (alongside audi alteram partem).

● By the force of this principle it is ensured that the elements of bias and prejudice held by an individual do not affect the course of a case by separating the two, thus reaffirming fairness and impartiality which form the essence of judicial conduct.

● An individual who is found to be corrupt under the influence of bias stands far from the pedestal of even-handedness and fails to deliver or act under the standards of neutrality.

● Despite the fact that it is against human psychology to decide a case against one’s own interest, neutrality is extremely crucial to be maintained in the administrative adjudicatory process, and hence this principle comes into play.

● This principle is a reflection on the words of Lord Hewart “Justice must not only be done, but it must also be seen to be done” which means the appearance of bias is enough to invalidate a judicial decision.

● In the Indian context, the principle of natural justice is observed as the minimum fair procedure and finds origin in Article 14 and 21 of the Constitution itself that lay solid grounds of equity.

Origin and Evolution

● History births concepts that gain concrete compliance in modern times, likewise the origin of this principle can be traced back to Roman sources, in 376 AD when an imperial decree established the principle that “no one shall decide his own case or interpret the law for himself”, alongside the digest records Julianus’s statement that “it is unfair for someone to be the judge of their own affairs”.

● Transitioning into modern times the trace of this principle can be found in various works.

For instance, Martin Luther in “Whether Soldiers, Too, Can Be Saved” (1526) quotes “no one should be their own judge”.  

Ulrich Zwingli’s Exodum (1527), Jean Bodin’s The Six Books of the Republic (1576) and Hobbes’s Leviathan (1651) quote “And seeing every man is presumed to do all things in order to his own benefit, no man is a fit Arbitrator in his own cause”.

● Furthermore, it was in seventeenth century English jurist Edward Coke turned the idea into a phrase when he wrote that “it is a maxim in law aliquis non debet esse iudex in propria causa”. Since then, the rule against bias has been recognized as a fundamental tenet of natural justice.

The Concept of “Bias” Under This Principle

● Bias, in simple words, is an inclination towards a certain side due to inherent notions held by an individual. The effect of bias may be positive or negative which means putting into action one favours his allies and tends to go against his enemies and in this course deviates from what actually must be done based on reason.

Hence by the means of the application of this principle any individual acting under the force of such bias must be separated from the case in order to ensure justness and fair delivery of decisions.

● In R v. Bath Compensation Authority^[1] the Court observed “the object is not merely that the scales be held evenly; it is also necessary that they may not appear to be inclined” thus affirming both the principles of natural justice.

● Furthermore, in M. Koteswara Rao v. Sr. Manager^[2] decided by the Andhra Pradesh High Court, several key principles related to bias and natural justice in disciplinary proceedings were highlighted, the court underscored the necessity for fair play and the absence of bias in any adjudicatory process. The judgment mainly outlined that:

• any authority with decision-making power must act impartially and without bias
• an individual must not participate in a decision if they have a pecuniary interest or any other form of bias that could affect their judgment
• it is sufficient if there is a real likelihood of bias or a bona fide suspicion of bias
• it need not be proven as a fact, bias can arise from various situations such as personal relationships, enmity, or a subordinate status, and it can be either personal, departmental, or administrative.

Bias has been broadly classified into following categories under this principle

1. Personal bias: It arises out of a relationship between the authority and the party, this relationship may be friendly or unpleasant hence resulting in a favorable or unfavorable decision in respective conditions.

In Mineral Development corporation ltd. V. State of Bihar^[3] the petitioners were granted a mining lease for 99 years in 1947 but a minister quashed their license in the year 1955 out of political rivalry as the petitioners opposed him in the election. The Supreme Court found that the minister was acting under personal bias which led him to wrongfully act against the petitioners and quashed the order of the minister against the license of the lease .

2. Pecuniary Bias: It arises out of an underlying financial benefit or interest of the authority, however small it may be, that overpowers the actual decision of the case in order to extract benefits for oneself or dodge losses likewise.

In Dimes V. Grand Junction Canal^[4] the Lord Chancellor of England had made several decisions in favor of the Grand Junction Canal company; it was later discovered that he owned shares in the company. The House of Lords held that no person should be a judge in their own case and put the judgment of the chancellor aside thereby establishing that judges must avoid any appearance of bias.

3. Subject Matter Bias: It emerges when the deciding authority is a part of the case either directly or indirectly and hence forms the subject matter of the case.

In A.K. Kraipak & Ors. v. Union of India & Ors.^[5] there was a selection to be held for Indian Forest Service (IFS) and for this purpose a selection board was formed, one of the members of the selection board, Mr. Rao was a candidate himself. The Supreme Court of India held that the presence of Mr. Rao has violated the principle of bias of natural justice as he was directly involved in the case which induces the element of bias.

4. Departmental / Official Bias: It occurs in administrative processes when bias drives the conduct of an official when performing the assigned duty and thereby negates the practice of fairness.

In the President of the Republic of South Africa v. South African Rugby Football Union (SARFU)^[6] during an inquiry, the President of South Africa, Nelson Mandela, appointed a commission to investigate the affairs of the SARFU. SARFU argued that the commission was biased as some commissioners had close ties to the President. The Constitutional Court of South Africa held that the principle of impartiality must be upheld. Any reasonable suspicion of bias warrants disqualification of the decision-makers. The inquiry’s composition was found to be potentially biased.

5. Preconceived Notion Bias: If the deciding officer has a prior opinion about the case, he tends to pursue the case in that direction only without giving the other party a fair chance to represent themselves and thus acts under bias.

In Porter v. Magill^[7], Porter was involved in a scandal, the auditor responsible for conducting the inquiry had previously made public statements indicating a preconceived opinion regarding the scandal, the judgement of the court laid down that the auditor’s prior actions led to a reasonable suspicion of bias which is a firm ground to invalidate a decision made by such authority.

Exceptions to the Principle

1. Doctrine of Necessity

● The doctrine of necessity is a legal principle that allows actions that would otherwise be considered a violation of natural justice to be taken in extraordinary circumstances.

● It is based on the idea that sometimes it is necessary to set aside normal legal procedures to prevent a greater harm from occurring.

● Bias would not disqualify an officer from taking an action if no other person is competent to act in his place.

● However, the doctrine of necessity is a narrow exception to the principles of natural justice. It is only applied in very limited circumstances with no other reasonable option.

●    The decision-maker must also ensure that the action taken is the least intrusive possible and that the principles of natural justice are otherwise respected as far as possible.

●   In Ashok Kumar Yadav and others v. State of Haryana^[8], the  Court held that the members of the Public Service Commission could not be excluded from the selection process completely only because they are related to some of the candidates. However, they may be excluded during the selection process of those candidates to whom the member is related.

2. Statutory Exemption

●  Principles of natural justice do not operate in areas where they are statutorily excluded, whether expressly or by necessary implication.

● Legislative bodies create these exceptions and are typically created to ensure a fair and just outcome in a particular situation.

● In the case of Charan Lal Sahu v. Union of India^[9], the Central Government authorized itself under the Bhopal Gas Disaster Act (Processing of Claims) Act, 1985, to represent all the victims. This was challenged by the fact that the Government holds a 22% share in the Union Carbide Company, and therefore it was alleged that the interests of the Government and the company overlap each other due to a potential conflict of interests between the victims and the Government. The Court further held that although the agreement might be true, no other body can represent the victims.

3. Waiver: In cases such as arbitration, where the parties mutually agree to appoint an arbitrator to settle their dispute, they effectively waive this principle. The arbitrator, who may have an interest or bias in the subject matter, is then free to handle the case despite any potential bias.
4. Exclusion : There are certain conditions under which exclusion of principles of natural justice is practiced such as matters of emergency , confidentiality , routine matters and  impracticability .

Criticism of this Principle

● Inflexibility: The principles of natural justice can sometimes be inflexible, leading to absurd outcomes. For example, the rule against bias (Nemo Judex In Causa Sua) can be interpreted so strictly that it prevents qualified experts from participating in decision-making and hence comes in the way of justice.

●Unrealistic Expectations: The principles of natural justice assume that decision-makers can be completely impartial and unbiased. However, human beings can’t be completely impartial, and decision-makers may bring their own experiences, biases, and prejudices to their decision-making, and it is therefore inevitable to separate the mental elements of an individual from coming into the stance while deciding a case .

Conclusion

In an overview, this principle implies two things, firstly, no person shall be made a judge in their own case and secondly, if a person holds a bias be it of any kind, whether personal, pecuniary, subject matter, preconceived notion towards or against the subject matter of the case such person shall not be made to proceed to decide the case. It is based on the principle that judges just like Caesar’s wife should always be above suspicion. This principle of natural justice ensures fairness, impartiality and maintenance of neutrality in the sphere of adjudication thus preventing its corrosion due to the influence of evil in the name of bias and upholds the integrity of the system.

^[1] (1925) 1 KB 635 

^[2] 1997(3)ALD491

^[3] 1960 AIR 468

^[4] (1852) 3 HLC 579

^[5] AIR 1970 SC 150

^[6] 2000 (1) SA 1

^[7] [2001] UKHL 67

^[8] 1987 AIR 454

^[9] 1990 AIR 1480