Doctrine of Necessity

INTRODUCTION

Nemo in propria causa judex, esse debet, which means no one should be made judge in his or her own cause. It is the principle of Natural Justice. This maxim further says that the persons who are provided with the authority of giving decisions must be impartial and should act fairly without bias and prejudice. According to the dictionary, the term “bias” refers to anything that influences a person to decide a case other than on the basis of evidence. The rule against bias is against those factors that improperly influence a judge against arriving at a decision in a particular case. This rule is based on the assumption that it is against human psychology to decide a case against his own interest.

Meaning

 The doctrine of necessity is considered as an exception to the rule of bias under the rule of natural justice. It allows authorities to perform two things i.e. to do certain things which are essential to be done at a particular moment, and those acts which in a normal situation do not come within the scope of the law. When there is the absence of definite authority to decide on a matter, then in such a situation the doctrine will be invoked. Although it has been established by the Supreme Court that the Doctrine of Necessity is not to be invoked every now and then for even small matters, since it might lead to the absence of rule of law. If a choice is given whether to let a biased person act on a matter and whether to stop the matter itself, then in such situation, the preference will be given to the former part over the latter one, although which may be afflicted by the bias of that particular person or authority, however, the decision of that biased authority is mandatory to come to a conclusion under a said matter.

Evolution

The term “Doctrine of Necessity” is defined as a term that is used to describe the base on which administrative actions take place via administrative authority, which is designed to restore order, are found to be constitutional. The maxim on which this doctrine is based, is originated in the writings of the medieval jurist Henry de Bracton, and similar justifications for this kind of administrative action have been lead by more recent legal authorities, including William Blackstone.

In the contemporary world, the term was first used in the year 1954, in a controversial judgment in which Chief Justice of Pakistan Muhammad Munir legalized the extra-constitutional use of emergency powers by Governor-General, Ghulam Mohammad. In his judgment, the Chief Justice cited Bracton’s maxim, ‘that which is otherwise not lawful is made lawful by necessity’, and thereby providing the label that would come to be attached to the judgment and the doctrine that it was implementing

Since then, the Doctrine of Necessity has been applied in a number of Commonwealth countries, and in 2010 was invoked to justify administrative actions in Nepal.

What is objectionable is not that the decision is actually rotten with bias but that the circumstances are such as to create a reasonable mistrust in the minds of others that there is a probability of bias affecting the decision. The underlying rule to this principle is that ‘Justice must not only be done but must also appear to be done’.

Hence, Doctrine of Necessity is an exception to Nemo judex in causa sua.

Judicial Decisions

  1. J. Mahopatra and Co. v State of Orrisa,

In this case, Supreme Court rejected the contention of the doctrine of necessity, on the ground that though members of the subcommittee were appointed by the righteousness of their official positions, they were holding positions in the secretary education department of the government of Orrisa and the director higher education etc. 

  1. Tata Cellular v Union of India,

In this case, the Government of India distributed invitations to all the mobile operators to create networks in the four metro cities. The Director-General of Telecommunication was present in the Evaluation Committee which was supposed to evaluate the tenders under the Telecom Regulatory Authority of India (TRAI). At the end of the evaluation process, his son’s tender was selected. To this, Supreme Court refused and said that there is no violation of ‘Nemo judex in causa sua’ as the Director-General of Communication is required for the selection and evaluation of the tender. There was no choice of substitution, thus, the decision was not liable to be struck down. In this case, Doctrine of Necessity was applied liberally by the Supreme Court.

  1. In Election Commission of India v. Dr. Subramaniam Swamy

In this case it was observed that in a multi-member commission participation of Chief Election Commission is not mandatory and the doctrine of necessity will not apply if he is found to have likelihood of bias. The proper process for him was that he could call for a meeting and withdrew from the meeting leaving it to the other members to resolve. If in any situation there was any difference between them, then doctrine of necessity would apply. In this case, Supreme Court replaced the “Doctrine of Necessity” with the “Doctrine of absolute Necessity” which means that this doctrine can be invoked only in cases of ‘absolute’ necessity.

CONCLUSION

One of the Fundamental principle of Jurisprudence means that no man can be a judge in his own cause and that if there is a reasonable probability of bias it is “in accordance with natural justice and commonsense that the Judge likely to biased should be incapacitated from sitting”. Here, the main point is not whether the judge is biased or not, but whether there is any real probability of bias or not. What is abhorrent is not whether the decision is actually corrupted with bias but that the circumstances are such as to create a reasonable doubt in the minds of others that there is a probability of bias affecting the decision. The underlying rule to this principle is that ‘Justice must not only be done but must also appear to be done’. This principle has received a wide recognition from various decisions of the Supreme Court.

This Doctrine acts as an exception to ‘Nemo judex in causa sua’. It says that bias would not disqualify an officer from taking an action if no other person is proficient to act in his place. This exception is based on the doctrine which it would otherwise not demeanor on the touchstone of judicial propriety. The doctrine makes it immediate for the authority to decide and considerations of judicial propriety must yield. It also states that it can be invoked in cases of bias where there is no authority to decide the issue. If the doctrine is not allowed full play in certain obligatory situations, it would cut off the course of justice itself and the defaulting party would be in a situation which will benefit him. If there is a choice of whether to allow a biased person to act or to suppress the action altogether, the former must be preferred as it is the only way to promote decision-making. But Supreme Court has made it very clear that Doctrine of Necessity cannot be invoked every now and then, as it might lead to absence of Rule of Law in the Society. Hence, Doctrine of Necessity should be taken as ‘Doctrine of Absolute Necessity’.

This article is written by Muskan Bakliwal student of BBA LL.B. from Mody University of Science and Technology, Laxmangarh.

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