Judicial bias need not be proven in fact, only needs to be tested from ordinary person's viewpoint: Delhi High Court

The Delhi High Court has held that judicial bias in a case need not be proven as existing in fact but only needs to be tested from the viewpoint of an ordinary person and evaluated based on the test of reasonable apprehension [Kinri Dhir v Veer Singh]..Justice Yashwant Varma has said that the test of judicial bias has to be whether a reasonable person would have thought that the adjudicator was predisposed to decide the matter in a particular way or not.“…bias is not an issue which is required to be proved as existing in fact. What is important to consider is whether the facts could give rise to an apprehension of bias. That apprehension can neither be founded on imagination nor can it rest merely on the fact that an adverse decision was rendered. The apprehension would have to be tested from the viewpoint of an ordinary person and whether the material would legitimately give rise to a doubt of whether the judge or the adjudicator would have the ability to decide impartially and fairly,” Justice Varma said..The Court was dealing with a transfer petition filed by a woman seeking transfer of proceedings from the court of Principal Judge of Family Court, Saket.It was informed that the parties had got married in Taiwan in December 2018 as per Buddhist customs and a male child was born from the union in April 2019. The relations between the parties soured soon after the child was born and a number cases came to be filed before the family court as well as Delhi High Court related the matrimonial discord and for the custody of the child.The petitioner in this case (wife) informed the High Court about three orders of the Family Judge. While the order dated August 2, 2021 related to the family court permitting her to travel to Dehradun, the October 28, 2021 order related to the visitation rights of the father. Another order of November 9, 2021 was passed in an application moved under Section 18 read with Section 23 and 26 of Protection of Women from Domestic Violence Act.It was also alleged that a private meeting had taken place between the judge and the respondents November 15, 2021..In the first order, the family judge had expressed his displeasure over the submission of the counsel for the petitioner that its order was passed on their concession. The judge said that courts in India are not so powerless that they will require a concession from a petitioner and that the word concession used was highly contemptuous.By the second order, the judge had disposed of the application permitting respondent to visit the child daily and to collect him between 6 pm and 8 pm.However, in the third order, the judge made several scathing remarks saying that the application under the PWDV Act was not just an attempt to blackmail the respondent but also to extort money from the respondent and his family members as the petitioner had chosen to claim everything “under the sky”..While the High Court has found no fault with the first two orders of the family judge as well as the alleged meeting, it said that it is in the order of November 9 that the judge appears to have lost sight of the imperative necessity of judicial decisions being compliant with the standards of sobriety and restraint.“The expressions used to describe the claim of the petitioner can be legitimately recognised as giving rise to a reasonable doubt arising on whether the Family Judge would be able to maintain the standards of neutrality as necessitated. The vitriolic and caustic remarks entered would give rise to a reasonable apprehension of whether the Family Judge would be in a position to dispassionately evaluate the claims of the petitioner that have or may be raised in the future,” the High Court said..The bench said that the language employed by the family judge was neither necessary nor imperative for ruling on the cause which was raised and such language was enough to cause a reasonable apprehension and doubt with respect to neutrality of the particular judge.It added that reasonable apprehension would continue to fester and sully the sanctity of proceedings that may ensue before the Family Court even in the future because the “credibility of the decision-making process has been sullied by the scathing remarks that came to be made”.“Any reasonable person when faced with the facts of the present case and the observations made would validly harbour a plausible doubt with respect to the ability of the Family Judge being able to fairly assess the validity of the competing claims of parties,” the High Court opined. .The Court, therefore, ordered transfer of the case. It, however, added that the decision should not be construed as an expression on the ability or the competence of the family judge or endorsement of the allegation that the judge is biased..In his 54-page judgement, Justice Varma also deliberated on the issue of the role of the family judge as well as the mantle of being a judge/adjudicator..He observed that family judge can no longer be viewed as one who is to act in the capacity of mere “fault finder” but he is called upon to perform the role of facilitator, counsellor, mediator who takes a pro-active role in exploring and striving to find common ground, kindle the hope of rapprochement and guide parties towards finding closure to disputes.“The Family Judge is thus today obliged to don a more collaborative robe and not approach the lis as just another legal dispute that arrives before a court for resolution. This unique function which the Family Judge discharges is required to be approached with empathy bearing in mind that the problem placed before it is not merely another legal conflict but one that deals with the complete breakdown of a family impacting not just the immediate parties to the dispute but various others who are seared by the pall of discord that follows,” the Court stated. .On the issue of the mantle of being the judge/adjudicator, Justice Varma said that parties approach the court based on immense trust and faith envisioned in the system and the judge, representing the face of the court system, must thus appear to be just, even handed, independent and neutral.Neutrality, the Court said, is one of the fundamental attributes of the justice system which requires the judge to consider and weigh each utterance, every word forming part of the decision, ensuring that it embodies and conveys a sense of fairness and neutrality having informed the decision-making process.“The observations forming part of the judgment must not therefore give the impression of being based on personal assumptions, biases or preconceived notions. Similarly, the observations as contained in the decision must not have the potential to sully the person or character of a litigant. The language of the judgment must necessarily be tempered by restraint and moderation. A judgment of a court of law cannot become a blistering diatribe against a party or its cause,” the Court underscored. .The High Court further said that the voice of a judge must be the voice of prudence, judiciousness and sobriety and while it is open for the courts to express doubts about bona fides of a particular litigant, that too would not warrant virulent observations.Justice Varma concluded that while an an action may be misconceived, ill-advised or even wholly unsustainable in law, that would also not justify the making of scathing remarks which may convey the impression that the judge let extraneous considerations cloud the overarching and fundamental requirement of being impartial and unprejudiced.“It is when the language of the decision tends to convey a departure of the decision maker across the Rubicon of remaining dispassionate, fair and even handed that the question of a reasonable apprehension or a real danger of bias arises,” the single-judge said. .The petitioner in the case was represented by Senior Advocate Pinky Anand along with advocates Sandanini Sharma, Parul Sharma and Jasmine Kaur.Senior Advocate Rebecca M John, along with advocates Gauri Rishi, Srishti Juneja, Garima Sehgal and Adyar Luthra appeared for the respondent..[Read Judgment]