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36Copy pinpoint36. Party autonomy is the governing feature of the constitution of the arbitral tribunal.67 The process of selecting a tribunal allows parties to choose arbitrators with peculiar experience or expertise.68 Parties are free to agree either on a specified individual or individuals as arbitrators or on a procedure for the selection of arbitrators. Most international arbitration statutes give primacy to the agreement of parties for the constitution of the arbitral tribunal.69 The genesis of this international consensus could be traced to the Geneva Protocol on Arbitration Clauses 1923 which stated that the “arbitral procedure, including the constitution of the arbitral tribunal, shall be governed by the will of the parties and by the law of the country in whose territory the arbitration takes place.”70

37Copy pinpoint37. When appointing an arbitrator under Section 11, the appointing authority has to ensure the appointment of independent and impartial arbitrators in terms of Section 11(8): “(8) The Supreme Court or, as the case may be, the High Court or the person or institution designated by such Court shall seek a disclosure in writing from the prospective arbitrator in terms of sub-section (1) of section 12, and have due regard to – (a) any qualifications required for the arbitrator by the agreement of the parties; and (b) the contents of the disclosure and other considerations as are likely to secure the appointment of an independent and impartial arbitrator.”

38Copy pinpoint38. Section 11(8) requires an appointing authority to have due regard to the qualifications required for the arbitrator as agreed by the parties. For instance, if the agreement only allows a professional of a particular class such as a chartered accountant to serve as an arbitrator, the appointing court should normally abide by this requirement. However, while appointing an arbitrator following the agreed qualifications, the

67 UNCITRAL, 2012 Digest of Case Law on the Model Law on International Commercial Arbitration (2012) 59 68 Gary Born (supra) 1807 69 Fouchard, Gaillard and Goldman on International Commercial Arbitration (Emmanuel Gaillard and John Savage, eds. 1999) 453. 70 Article 2, Protocol on Arbitration Clauses signed on 24 September 1923

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appointing court must also have due regard for considerations that are likely to secure an independent and impartial tribunal. Section 11(8) imposes a duty on the appointing court to ensure the appointment of an independent and impartial arbitrator.

39Copy pinpoint39. Section 11 is based on Article 11 of the Model Law. The draft text of the Model Law contained a provision which invalidated an arbitration agreement if it accorded a predominant position or unfair advantage to one party in the appointment of the arbitrator. The provision is extracted below: “An arbitration agreement is invalid [if] [to the extent that] it accords one of the parties a [predominant position] [manifestly unfair advantage] with regard to the appointment of arbitrators.”71

40Copy pinpoint40. The Working Group decided to delete the above paragraph from the draft article based on the following reasoning: “90. The prevailing view, however, was to delete paragraph (2) since (a) there was no real need for such a rule in view of the fact that the few instances aimed at could appropriately be dealt with by other provisions of the model law (e.g., on challenge of arbitrator or setting aside of award); (b) the wording was too vague and could thus lead to controversy or dilatory tactics and, above all, to a misinterpretation which could endanger well-established and recognised appointment practices; (c) the legal sanction, in particular the idea of partial invalidity, was not sufficiently clear.

91. The Working Group, after deliberation, decided to delete paragraph (2). That decision, however, should not be understood as condoning practices where one party had a clearly greater influence on the appointment without good reasons.”72 (emphasis supplied)

71 A/CN.9/233 [17] 72 ibid

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41Copy pinpoint41. The Working Group noted that other provisions in the Model Law such as Article 12 (challenge to an arbitrator) and Article 34 (setting aside of an arbitral award) implicitly restrict the autonomy of parties to appoint arbitrators.73 Thus, an arbitrator may be subject to challenge if the agreed procedure for appointment by the parties fails to adhere to the standards of independence and impartiality prescribed under Section 12. Gary Born also opines that the autonomy of parties to select arbitrators is generally subject to certain limitations, including mandatory requirements of equality and due process, impartiality and independence, and capacity requirements.74

iv. Independence and impartiality of arbitrators

42Copy pinpoint42. Section 12 provides the grounds to challenge the appointment of arbitrators.75 Section 12(1) mandates that a person who has been approached to be appointed as an arbitrator must disclose in writing any circumstances that are likely to give rise to “justifiable doubts as to his independence or impartiality.” The Fifth Schedule to the Arbitration Act specifies circumstances that give rise to justifiable

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doubts as to the independence or impartiality of arbitrators. Section 12(1) also mandates an arbitrator to disclose in writing any circumstances that are likely to affect the ability to devote sufficient time to the arbitration and in particular the ability to complete the entire arbitration within twelve months. The duty of disclosure is a continuing duty. Section 12(3) provides that an arbitrator may be challenged only if: (i) circumstances exist that give rise to justifiable doubts as to independence or impartiality; or (ii) the arbitrator does not possess the qualifications agreed to by the parties.

43Copy pinpoint43. Before the 2015 amendment, this Court generally upheld arbitrator appointment clauses which gave one party “unfettered discretion” to appoint a sole arbitrator.76 It was also held that there was no bar under the Arbitration Act for an employee of a government or Public Sector Undertaking,77 which is a party to an arbitration agreement, to act as an arbitrator.78 However, it was observed that there could be justifiable apprehension about the independence or impartiality of an employee arbitrator who was the “controlling or dealing authority” regarding the subject contract or if the arbitrator was a direct subordinate to the officer whose decision was the subject-matter of the dispute.79 The Court suggested phasing out arbitration clauses providing for the appointment of serving officers as arbitrators to “encourage professionalism in arbitration.”80

76 Datar Switchgears Ltd. v. Tata Finance Ltd. (2000) 8 SCC 151 [23] [“23. When parties have entered into a contract and settled on a procedure, due importance has to be given to such procedure. Even though rigor of the doctrine of “freedom of contract” has been whittled down by various labour and social welfare legislation, still the court has to respect the terms of the contract entered into by parties and endeavour to give importance and effect to it. When the party has not disputed the arbitration clause, normally he is bound by it and obliged to comply with the procedure laid down under the said clause.”]; 77 “PSUs” 78 Indian Oil Corporation Ltd. v. Raja Transport (P) Ltd. (2009) 8 SCC 520 [30] 79 Raja Transport (supra) [34]; Denel (Proprietary) Ltd. v. Bharat Electronics Ltd. (2010) 6 SCC 394 [21]; Bipromasz Birpron Trading Sa v. Bharat Electronics Ltd. (2012) 6 SCC 384 [50] 80 Union of India v. Singh Builders Syndicate (2009) 4 SCC 523 [25]. [“25. We find that a provision for serving officers of one party being appointed as arbitrator(s) brings out considerable resistance from the other party, when disputes arise. Having regard to the emphasis on independence and impartiality in the new Act, Government, statutory authorities and government companies should think of phasing out arbitration clauses providing for serving officers and encourage professionalism in arbitration.”]; See North Eastern Railway v. Tripple Engg. Works, (2014) 9 SCC 288 [8]; Union of India v. UP State Bridge Corporation Ltd. (2015) 2 SCC 52 [20] [“20. Therefore, where the Government assumes the authority and power to itself, in one-sided arbitration clause, to appoint the arbitrators in the case of disputes, it should be more vigilant and more responsible in choosing the arbitrators who are in a position to conduct the arbitral proceedings in an efficient manner, without compromising with their other duties. Time has come when the appointing authorities have to take call on such aspects failing which (as in the instant case), Courts are not powerless to remedy such situations by springing into action and exercising their powers as contained in Section 11 of the Act to constitute an Arbitral Tribunal, so that interest of the other side is equally protected.”]

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44Copy pinpoint44. The 2015 amendment mandates arbitrators to make disclosures before their appointment in terms of the categories specified under the Fifth Schedule. The Fifth Schedule prescribes thirty-four categories that give rise to justifiable doubts as to the independence or impartiality of arbitrators. These categories are classified as follows: (i) the relationship of the arbitrator with the parties or counsel; (ii) the relationship of the arbitrator to the dispute; (iii) the arbitrator’s direct or indirect interest in the dispute; (iv) previous services rendered by the arbitrator to one of the parties or other involvement in the case; (v) relationship between an arbitrator and another arbitrator or counsel; (vi) relationship between arbitrator and party and others involved in the arbitration, and (vii) and other circumstances.

45Copy pinpoint45. The 2015 amendment has incorporated Section 12(5) to provide for ineligibility of a person to be appointed as an arbitrator whose relationship with the parties or counsel or the subject matter of the dispute falls under any of the categories specified in the Seventh Schedule. Section 12(5) reads thus: “(5) Notwithstanding any prior agreement to the contrary, any person whose relationship, with the parties or counsel or the subject-matter of the dispute, falls under any of the categories specified in the Seventh Schedule shall be ineligible to be appointed as an arbitrator: Provided that parties may, subsequent to disputes having arisen between them, waive the applicability of this sub-section by an express agreement in writing.”

46Copy pinpoint46. The Seventh Schedule to the Arbitration Act divides the specified categories based on three factors: (i) arbitrator’s relationship with the parties or counsel; (ii) the relationship of the arbitrator to the dispute; and (iii) arbitrator’s direct or indirect interest in the dispute. The categories that are relevant for the present reference are as follows: “1. The arbitrator is an employee, consultant, advisor or has any other past or present business relationship with a party.

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5. The arbitrator is a manager, director or part of the management, or has a similar controlling influence, in an affiliate of one of the parties if the affiliate is directly involved in the matters in dispute in the arbitration.”

47Copy pinpoint47. Section 12(5) overrides any prior procedure for appointing the arbitrators agreed upon between the parties under Section 11(2) due to the non obstante clause. However, the proviso to Section 12(5) allows parties to waive the applicability of that provision after the dispute has arisen. The proviso secures “real and genuine party autonomy” by allowing parties to waive the applicability of Section 12(5).81

48Copy pinpoint48. Section 12(5) does not prescribe a method to challenge the appointment of an ineligible person. Section 14 deals with the termination of the mandate of an arbitrator who is unable to perform their functions.82 A person who is ineligible to be appointed as an arbitrator in terms of Section 12(5) becomes de jure unable to perform functions according to Section 14. Resultantly, the mandate of such an ineligible person gets automatically terminated and they are liable to be substituted by another arbitrator under Section 14.83

81 Law Commission of India (supra) [“60. The Commission, however, feels that real and genuine party autonomy must be respected, and, in certain situations, parties should be allowed to waive even the categories of ineligibility as set in the proposed Fifth Schedule. This could be in situations of family arbitrations or other arbitrations where a person commands the blind faith and trust of the parties to the dispute, despite the existence of objective “justifiable doubts” regarding his independence and impartiality. To deal with such situations, the Commission has proposed the proviso to section 12 (5), where parties may, subsequent to disputes having arisen between them, waive the applicability of the proposed section 12 (5) by an express agreement in writing. In all other cases, the general rule in the proposed section 12 (5) must be followed.”] 82 Section 14, Arbitration Act. [It reads: “14. Failure or impossibility to act – (1) The mandate of an arbitrator shall terminate and he shall be substituted by another arbitrator, if – (a) he becomes de jure or de facto unable to perform his functions or for other reasons fails to act without undue delay; and (b) he withdraws from his office or the parties agree to the termination of his mandate. (2) If a controversy remains concerning any of the grounds referred to in clause (a) of sub-section (1), a party may, unless otherwise agreed by the parties, apply to the Court to decide on the termination of the mandate. (3) If, under this section or sub-section of (3) of section 13, an arbitrator withdraws from his office or a party agrees to the termination of the mandate of an arbitrator, it shall not imply acceptance of the validity of any ground referred to in this section or sub-section (3) of section 12”] 83 Bharat Broadband Network Ltd. v. United Telecoms Ltd. (2019) 5 SCC 755 [17] [“17. The scheme of Sections 12, 13 and 14, therefore, is that where an arbitrator makes a disclosure in writing which is likely to give justifiable doubts as to his independence or impartiality, the appointment of such arbitrator may be challenged under Sections 12(1) to 12(4) read with Section 13. However, where such person becomes “ineligible” to be appointed as an arbitrator, there is no question of challenge to such arbitrator, before such arbitrator. In such a case i.e. a case which falls under Section 12(5), Section 14(1)(a) of the Act

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49Copy pinpoint49. The disclosure requirement helps prevent the appointment of an unacceptable candidate.84 The duty of disclosure is a continuing requirement to: (i) provide the information to any party who did not obtain it before the arbitrator’s appointment; and (ii) secure information about circumstances that only arise at a later stage of the arbitral proceedings, that is, new business affiliations or share acquisitions.85

50Copy pinpoint50. During the drafting of Article 12 of the Model Law, proposals were mooted to provide specific circumstances or grounds for challenging the appointment of arbitrators. The Secretariat noted that instead of prescribing a list of all the possible grounds of challenge, an alternative would be to prescribe “a general formula such as “circumstances giving rise to justifiable doubts as to the arbitrator’s impartiality or independence.””86 The Working Group did not set forth any comprehensive understanding of the meaning of the standard for challenge included under Article 12.87 It acknowledged that the general formula is exhaustive and will include most of the grounds of challenge set forth under national laws.88 According to the Working Group, the grounds of challenge under national law applicable to judges, such as a financial interest or previous involvement in the subject matter or a certain relation to one of the parties, could apply to arbitrators.89

51Copy pinpoint51. Section 13 prescribes the procedure for challenging an arbitrator in terms of Section 12(3).90 Section 13(1) provides that the parties are

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free to agree on a procedure for challenging an arbitrator. If the parties fail to agree on a procedure, the arbitral tribunal shall decide on the challenge. In case the challenge to the arbitrator is not successful, the arbitral tribunal shall continue with the arbitral proceedings and make an arbitral award. A party may later make an application for setting aside such an arbitral award under Section 34.

v. Equality in the arbitral proceedings

52Copy pinpoint52. Chapter V of the Arbitration Act deals with the ‘conduct of arbitral proceedings.’ Section 18 provides that the parties “shall be treated with equality and each party shall be given a full opportunity to present his case.” Section 18 establishes two principles: equal treatment of the parties and a right to a fair hearing. This provision has been referred to as the “due process clause of arbitration.”91

53Copy pinpoint53. Section 18 is based on Article 18 of the Model Law. Article 18 was initially paragraph 3 of Article 19 dealing with the freedom of parties to determine the rules of procedure. It was later formed into a separate article considering its overall importance. The Working Group stated that the freedom of parties is subject to mandatory provisions including the then paragraph 3 of Article 19: “3. The freedom of the parties is subject only to the provisions of the model law, that is, to its mandatory provisions. The most fundamental of such provisions, from which the parties may not derogate, is the one contained in paragraph (3). Other such provisions concerning the conduct of the proceedings or the making

“13. Challenge procedure – (1) Subject to sub-section (4), the parties are free to agree on a procedure for challenging an arbitrator. (2) Failing any agreement referred to in sub-section (1), a party who intends to challenge an arbitrator shall, within fifteen days after becoming aware of the constitution of the arbitral tribunal or after becoming aware of any circumstance referred to in sub-section (3) of section 12, send a written statement of the reasons for the challenge to the arbitral tribunal. (3) Unless the arbitrator challenged under sub-section (2) withdraws from his office or the other party agrees to the challenge, the arbitral tribunal shall decide on the challenge. (4) If a challenge under any procedure agreed upon by the parties or under the procedure under sub- section (2) is not successful, the arbitral tribunal shall continue the arbitral proceedings and make an arbitral award. (5) Where an arbitral award is made under sub-section (4), the party challenging the arbitrator may make an application for setting aside such an arbitral award in accordance with section 34. (6) Where an arbitral award is set aside on an application made under sub-section (5), the Court may decide as to whether the arbitrator who is challenged is entitled to any fees.”] 91 Holtzmann and Neuhaus (supra) 550.

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of the award are contained in articles 23(1), 24(2)-(4), 27, 30(2), 31(1), (3), (4), 32 and 33(1), (2), (4), (5).” (emphasis supplied)

54Copy pinpoint54. Ultimately, paragraph 3 of Article 19 was placed in a separate article in the form of Article 18. This was meant to distinguish two distinct issues: party autonomy to determine rules of procedure and fairness of arbitral proceedings.92 Moreover, the separation was meant to emphasise the importance of procedural fairness over the autonomy of parties to determine procedural rules.

55Copy pinpoint55. Article 18 constitutes a fundamental principle that is “applicable to the entire arbitral proceedings.”93 The Working Group has also stated that the principles of equality and fairness “should be observed not only by the arbitral tribunal but also by the parties when laying down any rules of procedure.”94 It was the understanding of the Working Group that the principle of equality of parties applies to arbitral proceedings in general, including aspects such as the composition of arbitral tribunal.95 Article 18 also operates as a limitation on Article 19 which provides broad autonomy to both the parties and, in the absence of an arbitration agreement, to the arbitral tribunal when determining the procedure to be followed in conducting the arbitral proceedings.96 It imposes a duty on the arbitral tribunal to ensure fairness in the arbitral process.

vi. Public-private arbitration

56Copy pinpoint56. Private law is a part of common law which involves relationships between individuals by way of contract or tort.97 The demands of the modern market economy require the State to contract out certain

92 Ilias Bantekas, Equal Treatment of Parties in Ilias Bantekas, et al (eds) UNCITRAL Model Law on International Commercial Arbitration (2020, CUP) 524 93 Report of the United Nations Commission on International Trade Law on the work of its eighteenth session (3-21 June 1985) Supplement No. 17 (A/40/17) [176]. 94 A/CN.9/246 [62] 95 Holtzmann and Neuhaus (supra) 552. [It was observed by the Secretariat that: “It had always been the understanding of the Working Group … that the fundamental principle enunciated in article 19(3) [Article 18 in the final text] would apply to arbitral proceedings in general; it would thus govern all provisions in chapter V and other aspects, such as the composition of the arbitral tribunal, not directly regulated therein.”] 96 Holtzmann and Neuhaus (supra) 551 97 K K Saksena v. International Commission on Irrigation & Drainage (2015) 4 SCC 670 [43]

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public tasks to private entities. The procurement of goods and services is among the most common forms of government contracting with private providers.98 Indian law does not provide a special regime governing contracts by public authorities. Generally, the resolution of disputes arising out of the contractual terms of a public-private contract is subject to ordinary civil law remedies.99 Arbitration is one of the preferred private dispute resolution mechanisms adopted in public-private contracts.

57Copy pinpoint57. An arbitration involving a company owned or controlled by government would likely involve public interest, considering the impact of an arbitral award on public finances. However, the Arbitration Act does not make a distinction between public-private arbitrations and private arbitrations. This lack of differentiation also extends to other aspects of arbitration including appointment of arbitrators, conduct of arbitration proceedings, and setting aside and enforcement of arbitral awards.100 Since the grounds for setting aside an arbitral award have been narrowly framed, the thrust of this privately ordered legal system is on the decision made by the arbitral tribunal. Moreover, the Arbitration Act mandates the arbitration proceedings to be conducted following two main principles: (i) equality of parties; and (ii) independence and impartiality of arbitral proceedings.

58Copy pinpoint58. In Pam Developments Private Limited v. State of West Bengal,101 the arbitrator made an award in favour of the contractor. When the contractor sought to enforce the award, the State government obtained a stay by relying on Order XXVII Rule 8-A of the Code of Civil Procedure 1908.102 This Court held that since the Arbitration Act is a self-contained code, the provisions of the CPC “will apply only insofar as the same are not inconsistent with the spirit and provisions of the Arbitration Act.” Noting that no special treatment can be given to the government under the Arbitration Act, the Court observed: “26. Arbitration proceedings are essentially alternate dispute redressal system meant for early/quick resolution of

98 Jody Freeman, ‘The Contracting State’ (2000) 28(1) Florida State University Law Review 155 99 Subodh Kumar Singh Rathour v. Chief Executive Officer, 2024 SCC OnLine SC 1682 100 Stavros Brekoulakis and Margaret Devaney, ‘Public-private arbitration and the public interest under English law’ (2017) 80(1) Modern Law Review 22, 30. 101 (2019) 8 SCC 112 102 “CPC”

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disputes and in case a money decree — award as passed by the arbitrator against the Government is allowed to be automatically stayed, the very purpose of quick resolution of dispute through arbitration would be defeated as the decree-holder would be fully deprived of the fruits of the award on mere filing of objection under Section 34 of the Arbitration Act. The Arbitration Act is a special Act which provides for quick resolution of disputes between the parties and Section 18 of the Act makes it clear that the parties shall be treated with equality. Once the Act mandates so, there cannot be any special treatment given to the Government as a party. As such, under the scheme of the Arbitration Act, no distinction is made nor any differential treatment is to be given to the Government, while considering an application for grant of stay of a money decree in proceedings under Section 34 of the Arbitration Act. As we have already mentioned above, the reference to CPC in Section 36 of the Arbitration Act is only to guide the court as to what conditions can be imposed, and the same have to be consistent with the provisions of the Arbitration Act.” (emphasis supplied)

Therefore, the Arbitration Act does not provide different or special treatment to the government in arbitrations by or against the government.103

E. The principle of equality applies at the stage of appointment of arbitrators

i. Arbitration as a quasi-judicial function

59Copy pinpoint59. According to well-established legal principles, an act of a statutory authority will be a quasi-judicial if: (i) the authority is empowered

103 Pam Developments Pvt Ltd (supra) [27-28] [“28. Section 36 of the Arbitration Act also does not provide for any special treatment to the Government while dealing with grant of stay in an application under proceedings of Section 34 of the Arbitration Act. Keeping the aforesaid in consideration and also the provisions of Section 18 providing for equal treatment of parties, it would, in our view, make it clear that there is no exceptional treatment to be given to the Government while considering the application for stay under Section 36 filed by the Government in proceedings under Section 34 of the Arbitration Act.”]

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under a statute; (ii) the mandate is to decide disputes arising out of a claim made by one party which is opposed by another party; and (iii) the body which decides has to determine the rights of contesting parties who are opposed to each other.104 A quasi-judicial function is required to be exercised judicially, that is, following the principles of natural justice because of its impact on the rights of persons affected.105 In Jaswant Sugar Mills Ltd. v. Lakshmi Chand,106 a Constitution Bench has identified the following criteria to determine whether an act is judicial: “(1) it is in substance a determination upon investigation of a question by the application objective standards to facts found in the light of pre-existing legal rules; (2) it declares rights or imposes upon parties obligations affecting their civil rights; and (3) that the investigation is subject to certain procedural attributes contemplating an opportunity of presenting its case to a party, ascertainment of facts by means of evidence if a dispute be on questions of fact, and if the dispute be on question of law on the presentation of legal argument, and a decision resulting in the disposal of the matter on findings based upon those questions of law and fact.”

60Copy pinpoint60. An arbitrator’s relationship with parties is contractual. The rights and obligations of an arbitrator are principally the result of the contractual relations with the parties.107 However, the position under common law is that the rights and duties of an arbitrator are derived from a conjunction of contract and quasi-judicial status granted by national laws. In Norjarl v. Hyundai Heavy Industries, Lord Browne-Wilkinson observed that it is impossible to distinguish contractual matters

104 Province of Bombay v. Khushaldas Advani, 1950 SCC 551. [Justice S R Das (as the learned Chief Justice then was) observed: 80.1.(i) that if a statute empowers an authority, not being a court in the ordinary sense, to decide disputes arising out of a claim made by one party under the statute which claim is opposed by another party and to determine the respective rights of the contesting parties who are opposed to each other, there is a lis and prima facie and in the absence of anything in the statute to the contrary it is the duty of the authority to act judicially and the decision of the authority is a quasi-judicial act; 105 Airports Economic Regulatory Authority of India v. Delhi International Airport Limited, 2024 INSC 792 [37] 106 1962 SCC OnLine SC 20 [13] 107 Gary Born (supra) 2111

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from those of quasi-judicial status.108 Similarly, in ONGC v. Afcons Gunanusa JV, this Court recognized that the rights and duties of arbitrators flow from: (i) the national laws governing arbitration which give a quasi-judicial status to arbitrators wheres they have to act as impartial adjudicators; and (ii) the arbitrator’s contract with the parties which governs many aspects of the arbitrator-party relationship including remuneration, confidentiality, and timelines for completion of arbitral proceedings.109

61Copy pinpoint61. An arbitral tribunal performs a quasi-judicial function because it substantially determines the rights and liabilities of competing parties through adjudicative means.110 The tribunal is generally required to arrive at decisions or awards based on procedural and substantive law. The Arbitration Act allows flexibility to parties to select the procedural and substantive law to be followed by the arbitral tribunal. During the arbitration process, the arbitral tribunal generally meets at a place agreed upon by the parties, considers the statement of claim and defence, conducts oral hearings, and may appoint experts. Thus, arbitral tribunals act judicially to adjudicate the rights of parties.

62Copy pinpoint62. The Arbitration Act is a self-contained code.111 The legal framework contained under the Arbitration Act and the Contract Act recognises and enforces the contractual intention of parties to entrust an arbitral tribunal with the authority to settle their disputes. Section 8 of the Arbitration Act mandates judicial authorities to refer parties to arbitration where there is an arbitration agreement. The other provisions of the Arbitration Act are also geared towards ensuring minimal judicial interference112 in arbitral proceedings and recognizing the competence of the arbitral tribunals to rule on their jurisdiction.113

63Copy pinpoint63. Although the Arbitration Act recognizes the autonomy of parties to decide on all aspects of arbitration, it also lays down a procedural

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framework to regulate the composition of the arbitral tribunal and conduct of arbitral proceedings. The incorporation of Section 12(5) is a recognition of the well-established principle that quasi-judicial proceedings should be conducted consistent with the principles of natural justice. Section 18 serves as a guide for arbitral tribunals to follow the principles of equality and fairness during the conduct of arbitral proceedings. Thus, the Arbitration Act requires the arbitral tribunals to act judicially in determining disputes between parties.114

64Copy pinpoint64. Since arbitral proceedings have “trappings of a court”, the law requires arbitral tribunals to act objectively and “exercise their discretion in a judicial manner, without caprice, and according to the general principles of law and rules of natural justice.”115 An arbitral award can be set aside if the composition of the arbitral tribunal or the arbitral procedure violates the mandatory provisions of the Arbitration Act, including Sections 12 and 18. Thus, the Arbitration Act emphasizes that the substance of the law cannot be divorced from the procedure.

65Copy pinpoint65. Section 31 mandates that an award made by an arbitrator shall be in writing and signed by all members of the arbitral tribunal.116 The provision further provides that an arbitral award shall state the reasons upon which it is based, unless the parties have agreed that no reasons are to be given. This provision is consistent with the principle that a quasi-judicial authority must generally record its reasons in support of the order it makes.117 Further, the decision rendered by an arbitral tribunal is binding and enforceable “in the same manner as if it were a decree of the court.”118

66Copy pinpoint66. Arbitral tribunals serve as effective alternatives to traditional justice dispensing mechanisms. The purpose of arbitral tribunals is to be expeditious where the law is slow, cheap where the law is costly, simple where the law is technical, and a peace-maker instead of

114 Engineering Mazdoor Sabha v. Hind Cycles Ltd., 1962 SCC OnLine SC 134 [5]; Dewan Singh v. Champat Singh (1969) 3 SCC 447 [9] 115 Grindlays Bank Ltd. v. Central Govt. Industrial Tribunal, 1980 Supp SCC 420 [8] 116 Section 31, Arbitration Act 117 Siemens Engg. & Mfg. Co. of India Ltd. v. Union of India (1976) 2 SCC 981. 118 Section 36, Arbitration Act. [It reads:

36. Enforcement (1) Where the time for making an application to set aside the arbitral award under section 34 has expired, then, subject to the provisions of sub-section (2), such award shall be enforced in accordance with the provisions of the Code of Civil Procedure, 1908 (5 of 1908), in the same manner as if it were a decree of the court.”]

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a stirrer up of strife.119 Arbitral tribunals can inspire confidence in their adjudicatory process by conducting fair and impartial hearings and providing sufficient and cogent reasons for their decisions.120 Given the adjudicatory functions performed by arbitral tribunals, the decisions which emanate from them must be grounded in a process that is independent and impartial.

ii. Equality applies at the stage of appointment of arbitrators

67Copy pinpoint67. Section 18 contains the principle of natural justice to give full opportunity to parties to present their case.121 In Union of India v. Vedanta Ltd., Justice Indu Malhotra, writing for a three Judge Bench, observed that the “[f]air and equal treatment of the parties is a non- derogable and mandatory provision, on which the entire edifice of the alternate dispute resolution mechanism is based.”122 The purpose of Section 18 is to give the arbitral process a semblance of judicial proceedings by infusing the principles of equality and fairness.123 The theoretical basis for this understanding stems from the fact that arbitrators are authorities vested with powers to resolve disputes under the law.124

68Copy pinpoint68. The first part of Section 18 provides that “parties shall be treated with equality.” The broad nature of the prescription has to be complied with not only by arbitral tribunals, but also by parties while giving expression to party autonomy. The principle has to be followed in all procedural contexts of arbitral proceedings, including the stage

119 Redfern and Hunter on International Arbitration (7th edition, 2022) 3 120 Siemens Engg. (supra) [6]. [6. […] If courts of law are to be replaced by administrative authorities and tribunals, as indeed, in some kinds of cases, with the proliferation of Administrative Law, they may have to be so replaced, it is essential that administrative authorities and tribunals should accord fair and proper hearing to the persons sought to be affected by their orders and give sufficiently clear and explicit reasons in support of the orders made by them. Then alone administrative authorities and tribunals exercising quasi-judicial function will be able to justify their existence and carry credibility with the people by inspiring confidence in the adjudicatory process. The rule requiring reasons to be given in support of an order is, like the principle of audi alteram partem, a basic principle of natural justice which must inform every quasi-judicial process and this rule must be observed in its proper spirit and mere pretence of compliance with it would not satisfy the requirement of law.] 121 Associate Builders v. DDA (2015) 3 SCC 49 [30]; Srei Infrastructure Finance Ltd. v. Tuff Drilling (P) Ltd. (2018) 11 SCC 470 [16]; 122 (2020) 10 SCC 1 [121] 123 Mustill and Boyd (supra) 58 124 Ilias Bantekas, ‘Equal treatment of parties in International Commercial Arbitration’ (2020) 69(4) International & Comparative Law Quarterly 991, 992.

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of appointment of arbitrators.125 According to Peter Binder, the principle of equal treatment of parties “means that no party may be given preference in the arbitrator-selection process regardless of how strong its bargaining power may be.”126 Countries such as Germany,127 the Netherlands,128 Spain,129 and Estonia130 allow the party that has been disadvantaged by an asymmetric appointment clause to request courts to appoint an arbitrator or arbitrators. The underlying principle is that the courts should not recognise and enforce agreements that are unfair and biased.

69Copy pinpoint69. In Indian Oil Corporation Ltd. v. Raja Transport (P) Ltd.,131 the arbitration clause provided that any disputes arising between the parties shall be referred to the “sole arbitration of the Director, Marketing of the Corporation or of some officer of the Corporation who may be nominated by the Director, Marketing.” It was contended that an arbitration clause which allows one party to nominate its officer as the sole arbitrator is against the principle of independence and impartiality contained in Sections 11(8), 12, and 18. A two-Judge

125 Fouchard Gaillard Goldman on International Commercial Arbitration (Kluwer Law International, 1999) 465 126 Peter Binder, International Commercial Arbitration and Conciliations in UNCITRAL Model Law Jurisdictions (2nd edn, Sweet and Maxwell 2005) 109 127 Section 1034(2) of the German Code of Civil Procedure 1877. [It reads: “Section 1034 – Composition of the arbitral tribunal (1) The parties are free to agree on the number of arbitrators. Absent such agreement, the number of arbitrators is three. (2) If the arbitration agreement grants preponderant rights to one party with regard to the composition of the arbitral tribunal, thus placing the other party at a disadvantage, the latter party may request that the court appoint the arbitrator or arbitrators in derogation from the appointment or appointments already made or in derogation from the appointment procedure agreed. The application is to be made no later than the expiry of two weeks after the party has become aware of the composition of the arbitral tribunal. Section 1032(3) applies accordingly.”] 128 Article 1028(1) of the Dutch Code of Civil Procedure, 2003. [It reads: “If the arbitration agreement gives one of the parties a privileged position with regard to the appointment of the arbitrator or arbitrators, the other party may, despite the method of appointment laid down in that agreement, request the Provisional Relief Judge of the District Court within one month after the commencement of the arbitration to appoint the arbitrator or arbitrators. The other party shall be given an opportunity to be heard. The provisions of Article 1027(4) shall apply accordingly.”] 129 Article 15(2), Spanish Arbitration Act 2003. [It reads: “Article 15: Appointment of arbitrators

2. The parties are able to freely agree on the procedure for the appointment of the arbitrators, provided that there is no violation of the principle of equal treatment.”] 130 Section 721(2), Estonian Code of Civil Procedure. [It reads: “(2) If an arbitral agreement gives one of the parties, in the formation of an arbitral tribunal, an economic or other advantage over the other party which is materially damaging to the other party, such party may request that the court appoint one arbitrator or several arbitrators differently from the appointment which already took place of from the rules of appointment agreed upon earlier.”] 131 (2009) 3 SCC (Civ) 460

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Bench of this Court rejected this contention by holding that Sections 11, 12, and 18 do not prohibit an employee of either of the parties from acting as an arbitrator: “32. Section 18 requires the arbitrator to treat the parties with equality (that is to say without bias) and give each party full opportunity to present his case. Nothing in Sections 11, 12, 18 or other provisions of the Act suggests that any provision in an arbitration agreement, naming the arbitrator will be invalid if such named arbitrator is an employee of one of the parties to the arbitration agreement.” Raja Transport (supra) was delivered before the 2015 amendment. Section 12(5) now renders an employee of either of the parties ineligible for being appointed as an arbitrator.

70Copy pinpoint70. The concept of equality under Article 14 enshrines the principle of equality of treatment. The basic principle underlying Article 14 is that the law must operate equally on all persons under like circumstances.132 The implication of equal treatment in the context of judicial adjudication is that “all litigants similarly situated are entitled to avail themselves of the same procedural rights for relief, and for defence with like protection and without discrimination.”133 In Union of India v. Madras Bar Association,134 a Constitution Bench held that the right to equality before the law and equal protection of laws guaranteed by Article 14 of the Constitution includes a right to have a person’s rights adjudicated by a forum which exercises judicial power impartially and independently. Thus, the constitutional norm of procedural equality is a necessary concomitant to a fair and impartial adjudicatory process.

71Copy pinpoint71. Arbitration is an adversarial system. It relies on the parties to produce facts and evidence before the arbitral tribunal to render a decision. Procedural equality is generally considered to contain the following indicia: (i) equal capability of parties to produce facts and legal arguments; (ii) equal opportunities to parties to present their case; and (iii) neutrality of the adjudicator.135 In an adversarial process, formal

132 M Nagaraj v. Union of India (2006) 8 SCC 212 [106] 133 Shree Meenakshi Mills Ltd. v. A V Visvanatha Sastri (1954) 2 SCC 497 [6] 134 (2010) 11 SCC 1 [102] 135 Jerry L Mashaw, ‘The Supreme Court’s Due Process Calculus for Administrative Adjudication in

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equality is important because it helps secure legitimate adjudicative outcomes and create a level playing field between parties.136

72Copy pinpoint72. The defining characteristic of arbitration law (particularly ad hoc arbitration) is that it allows freedom to the parties to select their arbitrators. This is unlike domestic courts or tribunals where the parties have to litigate their claims before a pre-selected and randomly allocated Bench of judges. Section 11(2) of the Arbitration Act allows parties to agree on a procedure for appointing the arbitrators. The “procedure” contemplated under Section 11(2) is a set of actions which parties undertake in their endeavour to appoint arbitrators to adjudicate their dispute independently and impartially. Without formal equality at the stage of appointment of arbitrators, a party may not have an equal say in facilitating the appointment of an unbiased arbitral tribunal. In a quasi-judicial process such as arbitration, the appointment of an independent and impartial arbitrator ensures procedural equality between parties during the arbitral proceedings. This is also recognised under Section 11(8) which requires the appointing authority to appoint independent and impartial arbitrators.

73Copy pinpoint73. The 2015 amendment has introduced concrete standards of impartiality and independence of arbitrators. One of the facets of impartiality is procedural impartiality. Procedural impartiality implies that the rules constitutive of the decision-making process must favour neither party to the dispute or favour or inhibit both parties equally.137 Further, a procedurally impartial adjudication entails equal participation of parties in all aspects of adjudication for the process to approach legitimacy.138 Participation in the adjudicatory process is meaningless for a party against whom the arbitrator is already prejudiced.139 Equal

Mathews v Eldridge: Three Factors in Search of a Theory of Value’ (1976) 44(28) University of Chicago Law Review 29, 52. [Professor Mashaw states that “insofar as adjudicatory procedure is perceived to be adversarial and dispute resolving, the degree to which procedures facilitate equal opportunities for the adversaries to influence the decision may be the most important criterion by which fairness is evaluated.”] 136 William B Rubenstein, ‘The Concept of Equality in Civil Procedure’ (2001-2002) 23 Cardozo Law Review 1865, 1890. 137 William Lucy, The Possibility of Impartiality (2005) 25(1) Oxford Journal of Legal Studies 3, 11 138 Ibid, at 22. 139 Lon Fueller, ‘The Forms and Limits of Adjudication’ (1978) 92(2) Harvard Law Review 353, 364. [Professor Fueller states: “…whole analysis will derive from one simple proposition, namely, that the distinguishing characteristic of adjudication lies in the fact that it confers on the affected party a peculiar form of participation in the decision, that of presenting proofs and reasoned arguments for decision in his favor. Whatever heightens the significance of this participation lifts the adjudication towards its optimum

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participation of parties in the process of appointment of arbitrators ensures that both sides have an equal say in the establishment of a genuinely independent and impartial arbitral process.

74Copy pinpoint74. Under Sections 12(1) and 12(5), the Arbitration Act recognises certain mandatory standards of independent and impartial tribunals. The parties have to challenge the independence or impartiality of the arbitrator or arbitrators in terms of Section 12(3) before the same arbitral tribunal under Section 13.140 If the tribunal rejects the challenge, it has to continue with the arbitral proceedings and make an award. Such an award can always be challenged under Section

34. However, considerable time and expenses are incurred by the parties by the time the award is set aside by the courts. Equal participation of parties at the stage of the appointment of arbitrators can thus obviate later challenges to arbitrators.

75Copy pinpoint75. Independence and impartiality of arbitral proceedings and equality of parties are concomitant principles. The independence and impartiality of arbitral proceedings can be effectively enforced only if the parties can participate equally at all stages of an arbitral process. Therefore, the principle of equal treatment of parties applies at all stages of arbitral proceedings, including the stage of the appointment of arbitrators.

F. Nemo judex rule and the doctrine of bias

76Copy pinpoint76. The principles of natural justice principally consist of two rules: (i) no one shall be a judge in their own cause (nemo judex in causa sua); and (ii) no decision shall be given against a party without affording a reasonable opportunity of being heard.141 Adherence to the principles of natural justice is a facet of procedural fairness. A decision made by the State to the prejudice of a person must be after following the basic rules of justice and fair play.142 The principles of natural justice are applied because administrative or quasi-judicial proceedings

expression. Whatever destroys the meaning of that participation destroys the integrity of adjudication itself. Thus, participation through reasoned argument loses its meaning if the arbiter of the dispute is inaccessible to reason because he is insane, has been bribed, or is hopelessly prejudiced.”] 140 Chennai Metro Rail Ltd. v. Transtonnelstroy Afcons (JV) (2024) 6 SCC 211 [33] 141 Express Newspaper (P) Ltd. v. Union of India, 1958 SCC OnLine SC 23 [95]; A K Kraipak v. Union of India (1969) 2 SCC 262 [20]; Mohinder Singh Gill v. Chief Election Commissioner (1978) 1 SCC 405 [52]; Swadeshi Cotton Mills v. Union of India (1981) 1 SCC 664 [27] 142 State of Orissa v. Binapani Dei, 1967 SCC OnLine SC 15 [9]

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can abridge or take away rights.143 Application of the principles of natural justice prevents miscarriage of justice.144 Natural justice has both an intrinsic and an instrumental function. The intrinsic function values natural justice as an end in itself. It values natural justice as an essential feature of fairness. In its instrumental element, natural justice is viewed as a means to achieving just outcomes.

77Copy pinpoint77. The principle of nemo judex is based on the precept that justice should not only be done but manifestly and undoubtedly be seen to be done.145 The principle of nemo judex applies to judicial, quasi-judicial, and administrative proceedings.146 An adjudicator should be disinterested and unbiased.147 A bias is a predisposition to decide for or against one party, without proper regard to the true merits of the dispute.148

i. Principles of natural justice

78Copy pinpoint78. Article 14 of the Constitution provides that the State shall not deny to any person equality before the law or equal protection of the laws within the territory of India. Article 14 is founded on a sound public policy to secure to all persons, citizens or non-citizens, the equality of status and opportunity.149 One of the dimensions of the equality jurisprudence evolved by this Court is that arbitrariness is antithetical to equality.150 State action must be based on principles of fairness and equality of treatment.151 Article 14 strikes at arbitrary actions and ensures fairness and equality of treatment.152 Violation

143 Union of India v. K P Joseph (1973) 1 SCC 194 [10] 144 A K Kraipak (supra) [20] 145 The King v. Sussex Justices, [1924] 1 KB 256 146 J Mohapatra & Co. v. State of Orissa (1984) 4 SCC 103 [9] 147 A K Roy v. Union of India (1982) 1 SCC 271 [97]; 148 Government of TN v. Munuswamy Mudaliar, 1988 Supp SCC 651 [12] 149 Basheshar Nath v. CIT, 1958 SCC OnLine SC 7; In Re Special Courts Bill, 1978; (1979) 1 SCC 380 [72]. [“72. […] (1) The first part of Article 14, which was adopted from the Irish Constitution, is a declaration of equality of the civil rights of all persons within the territories of India. It enshrines a basic principle of republicanism. The second part, which is a corollary of the first and is based on the last clause of the first section of the Fourteenth Amendment of the American Constitution, enjoins that equal protection shall be secured to all such persons in the enjoyment of their rights and liberties without discrimination of favouritism. It is a pledge of the protection of equal laws, that is, laws that operate alike on all persons under like circumstances.”] 150 State of Andhra Pradesh v. Nalla Raja Reddy, 1967 SCC OnLine SC 85 [24] 151 E P Royappa v. State of Tamil Nadu (1974) 4 SCC 3 [85] 152 Maneka Gandhi v. Union of India (1978) 1 SCC 248 [7]

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of the principles of natural justice results in arbitrariness.153 The principle of reasonableness is an essential element of equality.154 Resultantly, a procedure contemplated under Article 21 must be just, fair, and non-arbitrary. This Court has recognized that the concept of reasonableness and non-arbitrariness pervades the entire constitutional scheme.155

79Copy pinpoint79. In Union of India v. Tulsiram Patel,156 a Constitution Bench of this Court observed that violation of the principles of natural justice results in arbitrariness: “95. The principles of natural justice have thus come to be recognized as being a part of the guarantee contained in Article 14 because of the new and dynamic interpretation given by this Court to the concept of equality which is the subject-matter of that article. Shortly put, the syllogism runs thus: violation of a rule of natural justice results in arbitrariness which is the same as discrimination; where discrimination is the result of State action, it is a violation of Article 14: therefore, a violation of a principle of natural justice by a State action is a violation of Article 14. Article 14, however, is not the sole repository of the principles of natural justice. What it does is to guarantee that any law or State action violating them will be struck down. The principles of natural justice, however, apply not only to legislation and State action but also where any tribunal, authority or body of men, not coming within the definition of State in Article 12, is charged with the duty of deciding a matter. In such a case, the principles of natural justice require that it must decide such matter fairly and impartially.”

80Copy pinpoint80. Article 14 is an important facet of administrative, judicial and quasi-judicial decision-making in India and demands fair play in action.157 The object of observing the principles of natural justice is to ensure that “every person whose rights are going to be

153 Satyavir Singh v. Union of India (1958) 4 SCC 252 [26] 154 Maneka Gandhi (supra) [7] 155 Ajay Hasia v. Khalid Mujib Sehravardi (1981) 1 SCC 722 [16] 156 (1985) 3 SCC 398 157 K L Tripathi v. State Bank of India (1984) 1 SCC 43 [32]

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affected by the proposed action gets a fair hearing.”158 The non- observance of natural justice is itself a prejudice to any person who has been denied justice depending upon the facts and circumstances of each case.159 The principle of procedural fairness is rooted in the principles of the rule of law and good governance.160 In Madhyamam Broadcasting Limited v. Union of India, 161 this Court held that the requirement of procedural fairness “holds an inherent value in itself.” It was further observed: “42. Inherent value in fair procedure: Fair procedure is not only a means to the end of achieving a fair outcome but is an end it itself. Fair procedure induces equality in the proceedings. The proceedings ‘seem’ to be and are seen to be fair.”

81Copy pinpoint81. We recognize that arbitration is a private dispute settlement mechanism. Yet, it is statutorily subject to the principles of equality and fairness contained under the Arbitration Act. Section 18 of the Arbitration Act mandates the equal treatment of parties and fairness in arbitral proceedings as a mandatory principle governing the conduct of arbitration. Thus, the resolution of disputes arising in a private contractual relationship is subject to certain inherent principles which a quasi-judicial body like an arbitral tribunal is required to adhere to. Resolution of private disputes following the minimum statutory standards of equality and fairness is essential not only in the interest of justice, but also to uphold the integrity of arbitration in India.

ii. Doctrine of bias

82Copy pinpoint82. In A K Kraipak v. Union of India,162 the Central Government constituted a Special Selection Board for selecting officers to the Indian Forest Service in the senior scale and junior scale from the serving officers of the Forest department of the State of Jammu and Kashmir. One of the members of the selection board was the officiating Chief Conservator of Forests of Jammu and Kashmir. However, the

158 Bank of Patiala v. S K Sharma (1996) 3 SCC 364 [29] 159 S L Kapoor v. Jagmohan (1980) 4 SCC 379 [24] 160 Dharampal Satyapal Ltd. v. CCE (2015) 8 SCC 519 [26] 161 2023 SCC OnLine SC 366 [53] 162 (1969) 2 SCC 262

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Chief Conservator was also one of the candidates in contention for the posts in the Indian Forest Service. Although the Chief Conservator was not present when his name was considered for selection by the board, he was present and participated in the deliberations when the names of other candidates were being considered.

83Copy pinpoint83. The Constitution Bench held that the real question was not whether the Chief Conservator was biased, but whether there was a reasonable ground for believing that he was likely to have been biased. It was observed that a reasonable likelihood of bias has to be determined by taking into consideration human probabilities and the ordinary course of human conduct.163 It was observed that the Chief Conservator had an interest in keeping his rivals out and securing the position for himself. Further, it was held that the other members of the selection board would have been influenced by the Chief Conservator’s opinion about other candidates. Resultantly, this Court struck down the entire selection made by the board.

84Copy pinpoint84. In J Mohapatra v. State of Orissa,164 the State government had constituted a committee to select books for general reading to be kept in school and college libraries. For the years 1980 to 1982, the committee selected and purchased books in a prescribed manner. The list of books prepared by the committee was challenged before the High Court. One of the grounds of challenge was that some of the members of the committee were themselves authors of books that were selected and purchased. The High Court rejected the challenge on two grounds: (i) the decision of the committee was subject to the approval of the State government; and (ii) the role played by an individual member of the committee was insignificant and could not have influenced the decision of the committee.

163 A K Kraipak (supra) [15]. [15. […] But then the very fact that he was a member of the selection board must have had its own impact on the decision of the selection board. Further admittedly he participated in the deliberations of the selection board when the claims of his rivals particularly that of Basu was considered. He was also party to the preparation of the list of selected candidates in order of preference. At every stage of his participation in the deliberations of the selection board there was a conflict between his interest and duty. Under those circumstances it is difficult to believe that he could have been impartial. The real question is not whether he was biased. It is difficult to prove the state of mind of a person. Therefore what we have to see is whether there is reasonable ground for believing that he was likely to have been biased. We agree with the learned Attorney General that a mere suspicion of bias is not sufficient. There must be a reasonable likelihood of bias. In deciding the question of bias we have to take into consideration human probabilities and ordinary course of human conduct. It was in the interest of Naqishbund to keep out his rivals in order to secure his position from further challenge. Naturally he was also interested in safeguarding his position while preparing the list of selected candidates.] 164 (1984) 4 SCC 103

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85Copy pinpoint85. This Court observed that a person who has written a book that is submitted for selection has an interest in the matter of selection. It was further observed that there is a direct correlation between the selection of books by the committee and an increase in sales of the books. The increased sales resulted in increased royalties for the authors. Therefore, it was held that an author benefits financially if their book is selected by the committee. This Court further disagreed with the finding of the High Court that the author-member had an insignificant role in the book selection process, by observing: “11. […] to say that such author-member is only one of the members of the Assessment Sub-Committee is to overlook the fact that the author-member can subtly influence the minds of the other members against selecting books by other authors in preference to his own. It can also be that books by some of the other members may also have been submitted for selection and there can be between them a quid pro quo or, in other words, you see that my book is selected and in return I will do the same for you. In either case, when a book of an author-member comes up for consideration, the other members would feel themselves embarrassed in frankly discussing its merits. Such author- member may also be a person holding a high official position whom the other members may not want to displease. It can be that the other members may not be influenced by the fact that the book which they are considering for approval was written by one of their members. Whether they were so influenced or not is, however, a matter impossible to determine. It is not, therefore, the actual bias in favour of the author-member that is material but the possibility of such bias.” (emphasis supplied)

86Copy pinpoint86. In J Mohapatra (supra), it was observed that a decision-maker who is prejudiced can possibly influence the decision of the authority in tangible and intangible ways. This Court recognized that the doctrine of necessity serves as an exception to the nemo judex rule. An adjudicator, who is subject to disqualification on the ground of bias or interest in the matter which he has to decide, may be required to adjudicate in three situations: (i) if there is no other person who

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is competent or authorized to adjudicate; (ii) if a quorum cannot be formed without him; or (iii) if no other competent tribunal can be constituted.

87Copy pinpoint87. In Ashok Kumar Yadav v. State of Haryana,165 some members of the selection committee of the Haryana Public Service Commission were related to the candidates who appeared for the viva voce examination. Although the members did not participate when their relatives were being interviewed, they participated in the interviews of other candidates. The court observed that the test “is not that the decision is actually tainted with bias, but that the circumstances are such as to create a reasonable apprehension in the mind of others that there is a likelihood of bias affecting the decision.” The Court observed that the nemo judex rule extends to all cases where an independent mind has to be applied to arrive at a fair and just decision between rival claims of parties. However, the court resorted to the doctrine of necessity to hold that the decision of the state Public Service Commission, being a constitutional authority, was not vitiated.166

88Copy pinpoint88. The principle governing the doctrine of bias is that a member of a judicial body with a predisposition in favour of or against any party to a dispute or whose position in relation to the subject matter or a disputing party is such that a lack of impartiality would be assumed to exist should not be a part of a tribunal composed to decide the dispute.167 This principle is applicable to authorities who have to act judicially in deciding rights and liabilities and bodies discharging quasi-judicial functions. A quasi-judicial authority empowered to decide a dispute between opposing parties “must be one without bias towards one side or the other in the dispute.”168 A member of a

165 (1985) 4 SCC 417 166 Ashok Kumar Yadav (supra) [18]. [18. We do not think that the principle which requires that a member of a Selection Committee whose close relative is appearing for selection should decline to become a member of the Selection Committee or withdraw from it leaving it to the appointing authority to nominate another person in his place, need be applied in case of a constitutional authority like the Public Service Commission, whether Central or State. If a member of a Public Service Commission were to withdraw altogether from the selection process on the ground that a close relative of his is appearing for selection, no other person save a member can be substituted in his place. And it may sometimes happen that no other member is available to take the place of such member and the functioning of the Public Service Commission may be affected.] 167 Gullapalli Nageswara Rao v. State of A P, 1959 SCC OnLine SC 53 [6]; relied in Mineral Development Ltd. v. State of Bihar, 1959 SCC OnLine SC 49 [10] 168 Gullapalli Nageswara Rao v. A P State Road Transport Corporation, 1958 SCC OnLine SC 49 [30]

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tribunal which is called upon to try issues in judicial or quasi-judicial proceedings must act impartially, objectively, and without bias.169

iii. Test of real likelihood of bias

a. Automatic disqualification

89Copy pinpoint89. Bias is generally classified under three heads: (i) legal interest, which means a judge is “in such a position that a bias must be assumed”; (ii) pecuniary interest; and (iii) personal bias.170 A pecuniary or proprietary interest, however small, automatically disqualifies a person.171 A person who has an interest in the outcome of an issue that is to be resolved would be acting as a judge in their own cause.172 The question is not whether a judge has some link with parties involved in a cause before the judge but whether the outcome of that cause could realistically affect the judge’s interest.173 This principle has been authoritatively stated by the House of Lords in Dimes v. Grand Junction Canal.174 In that case, the Lord Chancellor decreed in favour of a canal company in which he held substantial shares. The House of Lords observed that the principle that no person should be judge in their own cause “is not to be confined to a cause in which he is a party, but applies to a cause in which he has an interest.”175

90Copy pinpoint90. In R v. Bow Street Metropolitan Stipendiary Magistrate, ex parte Pinochet Ugarte (No. 2),176 the House of Lords held that the former head of Chile was not immune from extradition to Spain for trial of alleged crimes against humanity. Lord Hoffman was one of the five

169 Manak Lal v. Dr. Prem Chand Sighvi, 1957 SCC OnLine SC 10 170 G Sarana v. University of Lucknow (1976) 3 SCC 585 [12]; Union of India v. B N Jha (2003) 4 SCC 531 [28] 171 R v. Rand (1866) LR 1 QB 230, 232. [Blackburn J. observed that “[t]here is no doubt that any direct pecuniary interest, however small, in the subject of inquiry, does disqualify a person from acting as a judge in the matter.”]; R v. Camborne Justices, ex parte Pearce, [1955] 1 QB 41. 172 Dimes v. The Proprietors of the Grand Junction Canal (1852) 3 HLC 759; Locabail (UK) Ltd. v. Bayfield Properties Ltd, [1999] EWCA Civ 3004 173 Locabail (supra) [8] 174 (1852) 3 HL Cas 759 175 Dimes (supra) 793. [Lord Campbell observed: “No one can suppose that Lord Cottenham [Lord Chancellor] could be, in the remotest degree, influenced by the interest that he had in this concern; but, my Lords, it is of the last importance that the maxim that no man is to be a judge in his own cause should be held sacred. And that is not confined to a cause in which he is a party, but applies to a cause in which he has an interest.”] 176 [1999] UKHL 1

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members who agreed with the majority. During the hearings, Amnesty International,177 a human rights body, intervened and participated in the proceedings. It came to light after the judgment that Lord Hoffman was a director and chairman of Amnesty International Charity Limited,178 which was wholly owned and controlled by AI. Resultantly, the House of Lords set aside its previous decision and directed a rehearing of the matter.

91Copy pinpoint91. Lord Browne-Wilkinson observed that AI and AICL were all “parts of an entity or movement” working in different fields to establish that Pinochet was not immune from extradition as a former head of State. This interest of the organizations was termed as a non- pecuniary interest to achieve a particular result. The rationale of automatic disqualification was held to extend to situations where a judge’s decision will lead to the promotion of a cause in which the judge is involved with one of the parties.179 In re Pinochet (supra) extended automatic disqualification to situations where a judge has an interest in the cause, which is being promoted by one of the parties to the case.

b. Real likelihood of bias

92Copy pinpoint92. The nemo judex rule may be applicable where a judge’s conduct or circumstances give rise to an apprehension of bias. In such situations, the judge does not have a financial or cause-based interest in the outcome of the dispute but provides benefit to a party by failing to be neutral and impartial. The determination of bias does not depend

177 “AI” 178 “AICL” 179 In re Pinochet (supra) [Lord Browne-Wilkinson held: “My Lords, in my judgment, although the cases have all dealt with automatic disqualification on the grounds of pecuniary interest, there is no good reason in principle for so limiting automatic disqualification. The rationale of the whole rule is that a man cannot be a judge in his own cause. In civil litigation the matters in issue will normally have an economic impact; therefore a judge is automatically disqualified if he stands to make a financial gain as a consequence of his own decision of the case. But if, as in the present case, the matter at issue does not relate to money or economic advantage but is concerned with the promotion of the cause, the rationale disqualifying a judge applies just as much if the judge’s decision will lead to the promotion of a cause in which the judge is involved together with one of the parties. Thus in my opinion if Lord Hoffmann had been a member of AI he would have been automatically disqualified because of his non-pecuniary interest in establishing that Senator Pinochet was not entitled to immunity.”]; Lord Hutton, in his concurring opinion observed: “I am of opinion that there could be cases where the interest of the judge in the subject matter of the proceedings arising from his strong commitment to some cause or belief or his association with a person or body involved in the proceedings could shake public confidence in the administration of justice as much as a shareholding (which might be small) in a public company involved in the litigation.”]

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upon actual proof of bias but whether there is a real possibility of bias based on the facts and circumstances.

93Copy pinpoint93. In R v. Sussex Justices,180 the applicant was charged with the offence of dangerous driving, which involved a collision with another vehicle. The prosecution brought a case against the applicant before the Magistrate’s court. Simultaneously, the driver of the other vehicle also instituted civil proceedings against the applicant. The solicitor hired by the other driver in civil proceedings was also acting as the Magistrate’s clerk in the criminal proceedings. At the conclusion of the evidence before the Magistrate, the acting clerk retired with the judges to their chambers. The Magistrate convicted the applicant without consulting the clerk. In appeal, the Divisional Court quashed the conviction. Lord Hewart CJ held that the clerk’s involvement in the civil proceedings made him unfit in the circumstances to serve as clerk to the Magistrate in the criminal matter. Lord Hewart CJ observed that the question depended not upon what actually was done but upon what might appear to be done and the judicial proceedings will be vitiated if there is “even a suspicion that there has been improper interference with the course of justice.”

94Copy pinpoint94. Over the course of time, the English courts have preferred the test of real likelihood to determine bias. In R v. Barnsley Licencing Justices,181 Devlin LJ observed that “real likelihood” depends on the impression that the court gets from the circumstances in which the justices were sitting. However, in Metropolitan Properties Company v. Lannon,182 Lord Denning expressed the test of the real likelihood of bias as being whether a reasonable person would think it “likely or probable” that a judge or member of a tribunal was biased.

95Copy pinpoint95. In Regina v. Gough,183 the House of Lords observed that the probability standard laid down by Lord Denning in Metropolitan

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Properties (supra) was “too rigorous a test.” It reconciled the real likelihood of bias test by grounding it in terms of possibility rather than the probability of bias. Therefore, it restated the test in terms of the real danger of bias: “[…] having ascertained the relevant circumstances, the court should ask itself whether, having regard to those circumstances, there was a real danger of bias on the part of the relevant member of the tribunal in question, in the sense that he might unfairly regard (or having regarded with favour), or disfavour, the case of a party to the issue under consideration by him.” The House of Lords observed that the court “personifies the reasonable man” to ascertain the relevant circumstances from the available evidence. The real danger of the bias test was criticized by courts in other jurisdictions such as Australia and South Africa for emphasising the court’s view of the circumstances rather than the public perception of the bias.184

96Copy pinpoint96. In Locabail (UK) Ltd. v. Bayfield Properties Ltd.,185 the Court of Appeal observed that the test of real danger of bias could reach the same results as the test of real possibility of bias since the court is taken to personify the reasonable man. It further listed a few circumstances which might give rise to real danger of bias: “By contrast, a real danger of bias might well be thought to arise if there were personal friendship or animosity between the judge and any member of the public involved in the case; or if the judge were closely acquainted with any member of the public involved in the case, particularly if the credibility of that individual could be significant in the decision of the case; or if, in a case where the credibility of any individual were an issue to be decided by the judge, he had in a previous case rejected the evidence of that person in such outspoken terms as to throw doubt on his ability to approach such person’s evidence with an open mind on any later occasion; or if on

184 Webb v. The Queen (1994) 181 CLR 41. 185 [1999] EWCA Civ 3004 [25]

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any question at issue in the proceedings before him the judge had expressed views, particularly in the course of the hearing, in such extreme and unbalanced terms as to throw doubt on his ability to try the issue with an objective judicial mind; or if, for any other reason, there were real ground for doubting the ability of the judge to ignore extraneous considerations, prejudices and predilections and bring an objective judgment to bear on the issues before him.” (emphasis supplied)

97Copy pinpoint97. In re Medicaments and Related Classes of Goods (No. 2),186 the Court of Appeal made a “modest adjustment” to the real danger of bias test laid down in Gough (supra) by holding that the court must determine whether the circumstances “would lead a fair-minded and informed observer to conclude that there was a real possibility, or a real danger, the two being the same, that the tribunal was biased.” In Porter v. Magill,187 the House of Lords approved the adjustment made to the real danger of bias test. Lord Craighead stated the bias test thus: “103. […] The question is whether the fair-minded and informed observer, having considered the facts, would conclude that there was a real possibility that the tribunal was biased.”

98Copy pinpoint98. The shift in the bias test in the UK has “at its core the need for the confidence which must be inspired by the courts in a democratic society.”188 In Lawal v. Northern Spirit Limited,189 Lord Bingham observed that a “fair-minded and informed observer”190 will adopt a

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balanced approach and as “a reasonable member of the public is neither complacent nor unduly sensitive or suspicious.” The above discussion shows that the bias test has undergone significant development in the UK over the last four decades. The current bias test in the UK is the real possibility of a bias test.

99Copy pinpoint99. The real likelihood of bias test has also been applied by the UK Supreme Court in the case of arbitral bias. In Haliburton Company v. Chubb Bermuda Insurance Ltd.,191 the issue before the UK Supreme Court was whether or not the UK Arbitration Act imposed a legal obligation on arbitrators to disclose facts and circumstances known to the arbitrator which would give rise to justifiable doubts as to their impartiality. Although the UK Arbitration Act does not expressly impose a duty of disclosure on arbitrators or potential arbitrators, the UK Supreme Court read the general duty under Section 33 of the legislation. Section 33 requires an arbitrator to act fairly and impartially in conducting arbitral proceedings.192 It was held that the statutory duty of fairness and impartiality “gives rise to an implied term in the contract between the arbitrator and the parties” to make that disclosure. Hence, it was held a legal obligation to disclose is encompassed within the statutory obligation of fairness unless the parties have expressly or implicitly waived their right to disclosure.193

that judges, like anybody else, have their weaknesses. She will not shrink from the conclusion, if it can be justified objectively, that things that they have said or done or associations that they have formed may make it difficult for them to judge the case before them impartially.

3. Then there is the attribute that the observer is “informed”. It makes the point that, before she takes a balanced approach to any information she is given, she will take the trouble to inform herself on all matters that are relevant. She is the sort of person who takes the trouble to read the text of an article as well as the headlines. She is able to put whatever she has read or seen into its overall social, political or geographical context. She is fair-minded, so she will appreciate that the context forms an important part of the material which she must consider before passing judgment.”] 191 [2020] UKSC 48 [52] 192 UK Arbitration Act, 1996. [It reads: “33. General duty of the tribunal – (1) The tribunal shall – (a) act fairly and impartially as between the parties, giving each party a reasonable opportunity of putting his case and dealing with that of his opponent, and (b) adopt procedures suitable to the circumstances of the particular case, avoiding unnecessary delay or expense, so as to provide a fair means for the resolution of the matters falling to be determined. (2) The tribunal shall comply with that general duty in conducting the arbitral proceedings, in its decisions on matters of procedure and evidence and in the exercise of all other powers conferred on it.”] 193 Haliburton (supra) [78]. [“78. Unless there is a disclosure, the parties may often be unaware of matters which could give rise to justifiable doubts about an arbitrator’s impartiality and entitle them to a remedy from the court under section 24 of the 1996 Act. Those remedies are necessary in the public interest. A legal obligation to disclose such matters is encompassed within the statutory obligation of fairness. It is also essential corollary of the statutory obligation of impartiality: an arbitrator who knowingly fails to act in

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100Copy pinpoint100. Recently, the UK Law Commission suggested that the ruling in Haliburton (supra) has limitations because: (i) an arbitrator may not owe a duty of disclosure to parties who may not have signed the arbitration agreement (non-signatory parties); and (ii) a contract of appointment cannot create a duty of disclosure before the appointment of the arbitrator.194 Therefore, the UK Law Commission has recommended codification of the duty of disclosure to ensure that the duty applies at the pre-appointment stage.195 There are two important distinctions between the position of law in India and the UK: First, the UK Arbitration Act does not require an arbitrator to be completely independent of the parties;196 and second, Section 12 of the Indian Arbitration Act already imposes a mandatory duty of disclosure on potential arbitrators.

101Copy pinpoint101. Other jurisdictions also apply a real possibility of bias or reasonable apprehension of bias test to determine judicial and arbitral bias. Article 6 of the European Convention on Human Rights states that “everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law” in the determination of their civil rights and obligations. The European Court of Human Rights197 determines the existence of impartiality for Article 6 by applying (i) a subjective test which considers whether the judge holds any personal prejudice or bias in a given case; and (ii) an objective test to ascertain whether the tribunal’s composition offers significant guarantees to exclude any legitimate doubt in respect of its impartiality.198

102Copy pinpoint102. In the vast majority of cases, the ECtHR has focused on the objective test, which requires the court to determine “whether, quite apart

a way which fairness requires to the potential detriment of a party is guilty of partiality. Unless the parties have expressly or implicitly waived their right to disclosure, such disclosure is not just a question of best practice but is a matter of legal obligation.”] 194 UK Law Commission, Review of the Arbitration Act 1996: Final report and Bill, Law Com No. 413 (2023) 19 195 ibid 196 UK Law Commission (supra) [The Law Commission observed: “3.18 We continue to think that complete independence is not possible. This is so especially where arbitrators are drawn from a small pool with specialist expertise, or where they are expected to have immersive experience in a particular area of activity. Any duty of independence might involve defining a required level of independence, which in turn would be impossible, or it might involve defining independence in terms of impartiality after all, which we note is the approach of some foreign legislation.”] 197 “ECtHR” 198 Nicholas v. Cyprus, Application No. 63246/10 [49]

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from the judge’s conduct, there are ascertainable facts which may raise doubts as to his or her impartiality.”199 The objective test takes into consideration hierarchical and other links between a judge and the parties to the proceedings. The ECtHR’s approach, therefore, emphasizes determining “whether the relationship in question is of such a nature and degrees as to indicate a lack of impartiality on the part of the tribunal.”200 The real possibility of bias test as evolved by the English courts is in alignment with the bias test evolved by the ECHR.201 The ECtHR has held that an arbitration agreement does not constitute a waiver of the fair procedure guarantees contained in Article 6, particularly the right to have disputes settled by an independent and impartial tribunal.202

iv. Indian approach to the bias test

103Copy pinpoint103. This Court has consistently adopted the real likelihood test to determine bias.203 In Manak Lal v. Dr. Prem Chand Singhvi,204 Justice P B Gajendragadkar (as the learned Chief Justice then was) observed that the test to determine bias is whether a litigant could reasonably apprehend that a bias attributable to a member of the tribunal might have operated against him in the final decision. In S Parthasarathi v. State of AP,205 Justice KK Mathew observed that the test of likelihood of bias is based on the reasonable apprehension of a reasonable man fully cognizant of the facts. The learned Judge further observed that the question of whether the real likelihood of bias exists is to be determined on the probabilities to be inferred from the objective circumstances by a court or based on impressions that might reasonably be left on the minds of the aggrieved party or the public at large.206 The legal development under

199 Morice v. France, Application No. 29369/10 200 Micallef v. Malta, Application No. 17056/06; Morice (supra) [77]; 201 See William Wade and Christopher Forsyth, Administrative Law (12th edn, Oxford University Press) 371 202 BEG S.P.A. v. Italy, Application No. 5312/11 (20 May 2021) 203 Rattan Lal Sharma v. Managing Committee, Dr. Hari Ram (Co-Education) Higher Secondary School (1993) 4 SCC 10 [11] 204 1957 SCC OnLine SC 10 [4] 205 (1974) 3 SCC 459 [14] 206 S Parthasarathi (supra) [16]. [It was observed: “16. The tests of “real likelihood” and “reasonable suspicion” are really inconsistent with each other. We think that the reviewing authority must make a determination on the basis of the whole evidence before it, whether a reasonable man would in the circumstances infer that there is real likelihood of bias. The Court must look at the impression which

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English law about the real danger of bias test was also accepted by this Court.

104Copy pinpoint104. In Kumaon Mandal Vikas Nigam Ltd. v. Girja Shankar Pant,207 this Court observed that the real danger of bias is essentially based on deciding bias based on the facts and circumstances of the individual case.208 In M P Special Police Establishment v. State of M P,209 a Constitution Bench referred with approval to Kumaon Mandal Vikas Nigam Ltd. (supra).

105Copy pinpoint105. Subsequently, the decision in P D Dinakaran v. Judges Inquiry Committee,210 traced the evolution of the bias test under Indian jurisprudence to state the following principles: “71. […] 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

other people have. This follows from the principle that justice must not only be done but seen to be done. If right minded persons would think that there is real likelihood of bias on the part of an inquiring officer, he must not conduct the enquiry; nevertheless, there must be a real likelihood of bias. Surmise or conjecture would not be enough. There must exist circumstances from which reasonable men would think it probable or likely that the inquiring officer will be prejudiced against the delinquent. The Court will not inquire whether he was really prejudiced. If a reasonable man would think on the basis of the existing circumstances that he is likely to be prejudiced, that is sufficient to quash the decision.”] 207 (2001) 1 SCC 182 208 Kumaon Mandal Vikas Nigam (supra) [35] [“35. The test, therefore, is as to whether a mere apprehension of bias or there being a real danger of bias and it is on this score that the surrounding circumstances must and ought to be collated and necessary conclusion drawn therefrom — in the event however the conclusion is otherwise inescapable that there is existing a real danger of bias, the administrative action cannot be sustained: If on the other hand, the allegations pertaining to bias is rather fanciful and otherwise to avoid a particular court, Tribunal or authority, question of declaring them to be unsustainable would not arise. The requirement is availability of positive and cogent evidence and it is in this context that we do record our concurrence with the view expressed by the Court of Appeal in Locabail case.”] 209 (2004) 8 SCC 788 [14. […] 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 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”.] 210 (2011) 8 SCC 380

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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.” (emphasis supplied)

106Copy pinpoint106. In Supreme Court Advocates-on-Record Association v. Union of India,211 Justice J Chelameswar, writing for himself and Justice A K Goel, summarized the following principles of the bias test in India: “25.1. If a Judge has a financial interest in the outcome of a case, he is automatically disqualified from hearing the case. 25.2. In cases where the interest of the Judge in the case is other than financial, then the disqualification is not automatic but an enquiry is required whether the existence of such an interest disqualifies the Judge tested in the light of either on the principle of “real danger” or “reasonable apprehension” of bias. 25.3. The Pinochet case added a new category i.e. that the Judge is automatically disqualified from hearing a case where the Judge is interested in a cause which is being promoted by one of the parties to the case.”

107Copy pinpoint107. Although there have been vacillations about the test in England, the Indian courts have been largely consistent in their approach by applying the test of real likelihood of bias or reasonable apprehension of bias. Recently, the court has used the real danger of bias test. However, the above discussion shows that there is no significant difference between the real danger of bias test and the real possibility of bias test if the question of bias is inferred from the perspective of a reasonable or fair-minded person.

108Copy pinpoint108. This Court has consistently applied the test of real likelihood of bias to determine arbitrator bias. In HRD Corporation v. GAIL (India),212 the Court explained the application of the real likelihood of bias test to determine the issue of arbitrator bias thus:

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“20. […] As has been pointed out by us hereinabove, the items contained in the Schedules owe their origin to the IBA Guidelines, which are to be construed in the light of the general principles contained therein—that every arbitrator shall be impartial and independent of the parties at the time of accepting his/her appointment. Doubts as to the above are only justifiable if a reasonable third person having knowledge of the relevant facts and circumstances would reach the conclusion that there is a likelihood that the arbitrator may be influenced by factors other than the merits of the case in reaching his or her decision. This test requires taking a broad commonsensical approach to the items stated in the Fifth and Seventh Schedules. This approach would, therefore, require a fair construction of the words used therein, neither tending to enlarge or restrict them unduly.” (emphasis supplied)

109Copy pinpoint109. In Government of Haryana v. GF Toll Road Private Ltd.,213 the Court had to decide whether a retired government employee could be appointed as an arbitrator by the state government. Justice Indu Malhotra, writing for the two-Judge Bench, observed that the test to be applied for bias is whether the circumstances are such as would lead a fair-minded and informed person to conclude that the arbitrator was in fact biased. It was held that the Arbitration Act does not disqualify a former employee from acting as an arbitrator, provided there are no justifiable doubts as to their independence and impartiality.214 Thus, in India, the sanctity and integrity of the arbitral process are held to the same standard of bias as that applicable to judicial authorities.

v. Bias and doctrine of necessity in the context of the Arbitration Act

110Copy pinpoint110. In comparison to other jurisdictions, the Arbitration Act has adopted a different approach to deal with the issue of arbitrator bias. Through

213 (2019) 3 SCC 505 214 GF Tolls Road Private Ltd. (supra) [23] [“23. An arbitrator who has “any other” past or present “business relationship” with the party is also disqualified. The word “other” used in Entry 1, would indicate a relationship other than an employee, consultant or an advisor. The word “other” cannot be used to widen the scope of the entry to include past/former employees.”]