ABSTRACT
The principle of natural justice are the basic principles which ensure there is no miscarriage of justice. the principle of nemo judex causa sua is a principle of natural justice which implies that the judge shall be a blank paper while giving the decision and there shall not be any form of bias existing in their mind while giving the decision. Considering the principle of nemo judex causa sua as held in the case of f bar council of India vs high court of Kerala there is no straight jacket formula for the application of principle of natural justice. Clearly there is no applied procedure for the application of this principle .in completely varies from case to case in consideration of facts and circumstances of the case.it is not even a legal bound rule for the application of this principle also there are various legal provisions which directly conflict with the application of this principle. The principle specifies that if at all there is and form of bias in the mind of the judge iin such a case the judge shall be recused from the hearing of the case. But if we consider there are various provisions considering the power of master of roaster in hand of attorney general. He has the power to allot cases to each of judge if at all he himself is deciding authority if they are stopped from giving the judicial decision considering that either party considers there is bias in such a case it is taking away the power of the attorney general. Also other loopholes also exist likely the judge can take abstainment from the case if at all the judge believes that there is bias on his part but if there is no part of abststaiment on the part of judge then the existence of bias cannot be established the same was established .also considering the policy notion bias if we look into the working of the national green tribunal then the expert members are appointed to give the decision with the deciding authority who have knowledge on the subject matter of the case .but if we consider deeply prior knowledge on the matter helps judge to give more reasoned decision. Considering the fact, a person of judicial fraternity cannot stand as a blank paper on the matter. Another aspect of the same is application of the principle is necessary to avoid miscarriage of justice and to maintain confidence in the judiciary. also if the bias exists there is inequality between the parties of the case. if there is inequality it violates fundamental right of citizens leading to violation of both article 21 and article 14 of the constitution. Such case the principle holds legal value but considering the application of principle is not stringent. considering there is necessary for its existence but also establishes legal fallbacks.
KEYWORDS-straight jacket formula, limited application, recusal power, miscarriage of justice, NGT
INTRODUCTION
There are two major principles of natural justice –nemo judex causa sua and audi atram patram. the principle of nemo judex causa sua states that there shall be no existence of bias on the part of the judge while giving any judicial decision. The principle ensures that there shall be justice, fairness on the part of judge to avoid any form of miscarriage of justice. the principle clearly implies that there shall be no bias in mind of judge while giving any judicial decision. The bias under the principle is on various forms –
Personal bias –such bias exists when the judge giving the judicial decision shares any personal or the professional form of relationship with any of the parties whom decision is been given by the judge in such a case there is impartiality on the side of the judge to the other party .to determine this form of bias the test of likelihood is applied where there is any relevant procession of such information in such a case the bias is considered to be existent and the judge shall not be the part of judicial hearing .
In the case of Jiwan K Lohiya Vs Durga Dutt Dutta the apex court observed that it is not essential that there shall be bias effecting the decision on the other hand it is more of even if there is a apprehension in the mind of judge that the bias could affect the decision establishing the test of likelihood then the bias is considered to exist in such case .
Pecuniary bias– such bias exists where there is any form of financial interest whether it is less or more for the judge in such a situation pecuniary bias is considered to exist.
In the case of Jeejeebhoy vs. Astt. Collector, Thana the apex court observed that the member in the bench giving the decision has been the part of the cooperative society the decision is been given in such a case the rule of the bench was not considered applicable .
Subject matter bias –in such form of bias the subject matter of the case is in any form related to the deciding authority. Such case the subject matter bias in considered to be existing on the part of the deciding authority.
In the case of Murlidhar vs Kadam Singh the case where the apex court’s decision was quashed on the concern that the decision giving authority is related to the subject matter of the case .
Departmental bias – such takes place to lack in administrative process where the authority giving the decision belongs to the same authority such a case there is no fairness on the part of the decision giving authority.
In the case of Gullapali Nageshwara Rao vs APSRTC the order of the government was quashed as the order giver had biased hearing due to prior belonging to that particular department.
Preconceived notion bias –in this form of bias the decision making authority has any preconceived notion or perspective in the subject matter where the authority has been giving the decision. Her in such case the judge shall sit as a blank sheet of paper while giving the decision. If there is slight preconceived notion in such a scenario the bias seems to exist.
In the case of t Govind Raja Murlidhar vs state of Tamil Nadu the membership of the committee giving the decision was challenged on the ground that there was a prior perspective of the person in the committee giving the order.
The principle of nemo judex causa sua is nota straight jacket formula. situations where the existence of bias and application the principle of nemo judex causa sua cannot is no clear guidelines of its application which makes the application of the principle difficult and there are ceratin legal fall backs which make the application impossible in certain circumstances and some places it becomes impossible for the application of the principle .also considering that the principle holds its importance in the legal fraternity to avoid any form of miscarriage of justice and to remain the deep rooted confidence in the judiciary.
RIVIEW OF LITERATURE
The literature used in the paper aims at giving a broad perspective where the application of the principle of nemo judex causa sua is been highlighted. how the principle is open to broad interpretation? further accessing the finding clearly shows that it is not an essential factor of the application of the principle as there is no clear guidelines of how the principle shall be applied and how the principle should be used. this gives a wider interpretation on the application of the principle varying from case to case depending on the facts and principles of the case.
there is no defined constitutional principle which is applying this principle which provides a wide ambit to the application of the principle. There are also certain limitations of the application which include
JUDICIAL INDEPENDENCE
If we consider a judge who is giving a judicial decision shall be free from any influence and also the judiciary shall stand independent so that there are fair and reasonable decisions. if there is interference then the judicial decisions will be influenced and the structure of judiciary will collapse. Considering the judges have a power of recusal .there is no particular provisions which define the power and it application but there are many and many super court judgements highlighting this power and its application.as held in Ranjit Thakur vs Union of India there is judge who shall look in his mind if at all there stands any form of bias in his mind and if at all such a bias exists she shall recuse himself from the case .the reason of seeking a recusal stands to existence of conflict of interest .such abstinent from participation is an official action. But also in the case of seeking the recusal the decision of recusal comes from the judge himself not from any other party it rests in the conscience of the judge whether or not there exists the mind of the judge .considering the existence of application of the principle of nemo judex causa sua .the bias is in mind of judge shall not be giving judgment of the case .but it comes to conflict on the ground that who to decide there exists bias sin mind of judge .if the parties have been given such a power then in such a case it is taking away judicial independence of judges such was simpler heighted in the case of Harsh Mander where the power to question the judge on the bias existing in the mind of the judge shall solely rely with the judge .,considering that the parties against whom the decision is been given is likely to realize that there is bias and if not the parties then giving judges is entire power to decide the bias is violating the principle of nemo judex causa sua .
PRECOCIEVED KNOWLEDGE AND POLICY NOTION BIAS
Considering the case of policy notion bias it shall be looked into the bias interprets to that there shall not be any preconceived notion in the part of judge while providing the judgement. if we consider the case of NGT (national green tribunal ).the bench of the tribunal comprises of two form of members one being the judicial members and the other being the expert members. Judicial members are appointed via central government by an election committee. They are either the present high court judge or either a retired high court judge to be the member of the tribunal.in case of expert members of the tribunal they shall be PHD in science, environment or technology. In such a case a person shall be qualified to be an expert member of the tribunal. Such members are selected by the central government.it shall be concerned that the expert member and the judicial member have equal standing in the decision given by the tribunal.
As decided in the case of Mc Mehta Vs Union Of India Case 1986
The judge having further knowledge of the case helps the judge to give more reasoned judgements and such a judgement is on the basis of constructed facts. having knowledge does form notion of the decision. judge sitting with blank paper in his mind while giving the judgement is an impossible notion to achieve. considering that each person is aware of thigs happening and has a notion on the same. the green tribunal also appoints expert members so that the knowledge of the expert member would help in a much more seasoned judgment. if a person knows about the news it’s Impossible to not have a notion. Hence the policy notion bias is inconsistent to exist considering that the notion of policy helps in reasoned judgment not being the policy bias. Hence here the question whether the policy notion bias is fair under the principle of nemo judex causa sua and if at all is it possibly practicable to make a judge sit as blank sheet of paper while giving the judgement.
Application of the principles of natural justice
If looked into to the principles of natural justice, they do not encompass any legal provision for the application of the principles of natural justice as held in the case of swadeshi cotton mills co ltd vs union of India the statutory principles exclude that of the application of the principles of natural justice but it cannot be excluded. Also held in the case of peerless general finance and investment co ltd vs CIT the principles seem to necessary until there is a statutory provision in regard in the particular case. Considering it is important to look into the legislative provision while considering the application of the principles of natural justice it shall be considered that if at all the legislative provision seem to exist in such a case the circumstance can be dealt to exclusion of application of the principles of natural justice. considering that each statuary provision formed by the legislative body holds more importance and if at all there is any form of choice to choose whether or not the application of the principle of natural justice with it conflict with the existing statuary provision in such a cause the statuary provision will have much more importance in that matter than the principles of natural justice.
CAN THERE BE VIOLATION OF THE PRINCIPPLES OF NATURAL JUSTICE
Considering the application of the principles of natural justice holds no straight jacket formula of application and the application of the principle solely depends on the facts and the circumstances of the case .also that any statuary provision existing in the current matter hold more importance that the principles of natural justice if at all there is any form of conflict between them.as held in the case of Ponkunnam Traders v. Addl. ITO l it was held that if any decision of any form of judicial or quasi-judicial body which does not conform with that of the principle of natural justice shall be void ab intio in that cause. But also held in the case of Satyabir Singh vs UOI the consideration of principles principles of natural justice it is a broad idea and shall be applicable in practicable manner considering the situation of the case also what the case demands and what the urgency of the case. This clearly shows that application of the principle is necessary but the application shall be consideration to the practicability of the application of the principles.
considering the matter that the application of the principle shall have certain loopholes there are certain necessities where the application of the principle becomes necessary. the necessities highlight to be The miscarriage of justice and to remain the deep-rooted confidence in the judicial system. If the confidence is affected it will affect the working of judiciary but it also seems to be essential the application is in a practicable way.
METHOD
In consideration with dealing with the current paper the method used involves detailed analysis of the principle. Using qualitative analysis.to access the findings of the principles and how the principles is being applicable and how it is being used and what extent the principle is been applicable in the practicable cause and how and what extend can the principle be applied all commentated in the paper using discourse analysis.
SUGGESTIONS &CONCLUSIONS
The principle of nemo judex causa sua belongs to the principles of natural justice which has no straight jacket application and that differs from case to case. Viably the application of the principle is essential to avoid any bias in case which could lead to miscarriage of justice and the confidence in judiciary can be debarred if there is bias existing while giving the decision of the case .but such shall be also constituted that the principle shall not stand above any codified law or statute .the case of A.K. Kripak vs UOI clearly highlighted that no person shall deem to be a judge in his own cause .but it also becomes essential the application of the principle becomes limited in a
Case when and where there is situation where there is a statuary provision which is existing in the cause of the case in such a case that situation the statuary provision holds more importance compared to that of the principles of natural justice. Also this does not implement that the application violation of the principles of natural justice will not have any form of effect the principles are the pillar of the judicial system in such a case if at all there is any form of violation there shall exist that there is deep effect of violation of the principles of natural justice but establishment of how the principles of natural justice id not a clear form it just depends on the facts and the circumstance of the case and hoe the urgency or the practicability of the matter .