In a decision-making process, bias is considered the antithesis to a fair and just proceeding. Under the PoSH act 2013, an Internal Committee by the foundation is enshrined to be free of any biases as they lead to a conflict of interest while impacting the outcome of the proceedings.
The issue of bias was raised in the case of Somaya Gupta vs. Jawaharlal Nehru University and Anr and was decided by the High Court of New Delhi on 27 August 2018.
The case as argued by the petitioner challenged the constitution of the IC on the basis of it being biased. The petitioner argued that the Internal Committee was constituted by the Executive Council of the university which was inclusive of the Respondent being “the Vice-Chancellor and Rector-I of the University.”
The High Court challenged the argument on the grounds that as the executive council constituted 22 members, apart from the Vice-Chancellor and Rector-I, the Executive Council consisted of 19 other persons who had participated in the said meeting. Hence, the argument that IC would be biased as it is constituted by the Executive Council was considered unmerited.
The court further elaborated what constitutes bias under the law,
“…The mere fact that the ICC was constituted by the Executive council of the University that included two members who were accused, is clearly insufficient to doubt the integrity or ability of the ICC to render an unbiased opinion……It is relevant to state that the ICC as constituted by the Executive Committee is not specific to the petitioner’s case alone, but is constituted under Section 4 of the Act to consider all cases in accordance with the Act…”
Here, the court emphasises that the bias in the Internal Committee has to be proven beyond a reasonable doubt;
In the case of Kumaon Mandal Vikas Nigam Ltd. v. Girja Shankar Pant, (2001) 1 SCC 182 was relied on which states that “…..The question in such cases would not be whether they would be biased. The question would be whether there is reasonable ground for believing that there is a likelihood of apparent bias. Actual bias only would lead to automatic disqualification where the decision-maker is shown to have an interest in the outcome of the case. The principle of real likelihood of bias has now taken a tilt to “real danger of bias” and “suspicion of bias……”
Reasonable doubt/likelihood under legal maxims can be understood as the rule that the courts adopt while adjudicating a matter. It is a standard of proof that the petitioner has to prove the defendant’s guilt Beyond a Reasonable Doubt, not just a mere apprehension, but proof of the act i.e. the bias exists.
In the U.S. Verma, Principal, DPS & Anr. vs. National Commission for Women & Ors, the Delhi High Court held that
“An elementary principle of natural justice is that the administrative authority should be free from bias. Bias or impartiality is fairly easy to comprehend however there frequently are situations when the dividing line between what is acceptable, and what is not, is not a bright one. On such occasions, Courts have chosen to follow the “reasonable likelihood” of bias standard, which has now been reiterated as a “strong suspicion” of bias standard and this, coupled with the sound aphorism that not only impartiality but the appearance of impartiality, should be the guiding standard, is the criterion which Courts ordinarily follow “
Takeaways for the Internal Committee :
- The composition of the Committee should be checked when the case of inquiry has come for any upfront biases. For eg: If anyone in the committee is related to any party in any manner. Especially when it comes to the internal members.
- Conduct specialized training of the members on the understanding of bias. Making IC members aware of the meaning of bias, various types of bias, triggering pointers for bias, and possible consequences of bias.
- The responsibility of calling out bias should be incorporated within the IC at any instance. The external member can play an important role at this instance.
- Any allegation of bias or conflict should be immediately and thoroughly reviewed, and the decision should be fully documented.
- The company can have more than four trained members for their IC in order to avoid delay in the reconstitution of the IC if one or more members are conflicted in any way.