Introduction
To the common knowledge, Natural justice connotes the right to a fair hearing which relies on three underlying principles viz. Nemo in propria causa judex, esse debet (no one should be made a judge in his own cause), Audi Alteram Partem (let the other side be heard), and rule against bias, are the intrinsic requirement for ideal justice dispensation. These three principles of natural justice have wrought with the idea that the authority bestowed with the power to render justice should be impartial and devoid of unfairness, prejudice, and bias. Mindful of the fact that the term natural justice encompasses basic moral principles associated with fairness, in the case of Province of Bombay v. Khushaldas Advani,[1] it was held by the court that in addition to the judiciary and quasi-judiciary, the principle of natural justice is applicable to statutes as well.
As the term bias denotes the unjust factors that influence the authority in the position to take the decision, the rule against bias is substantially against those factors. Comprehensively, the panacea for all moral ills that affects the notion of a fair trial is the principle of natural justice; when a decision is the culmination of the thoughts of a biased mind, the trial is considered to be Coram non judice and results in nullity. However, some situations are in dire need of a solution and cannot be neglected; in such circumstances law overlooks the possibility of bias that may affect the decision and does not invalidate the same. As like how there is an exception to every rule, the rule against bias also has this exception called Doctrine of Necessity.
What is Doctrine of Necessity
The Doctrine of Necessity is a common law doctrine and traces its roots back to the 13th century from the writings of the medieval jurist Henry de Bracton, where he stated that “that which is otherwise not lawful is made lawful by necessity.” The literal interpretation of this statement is that authority is allowed to take certain actions in a specific situation, which are normally prohibited by law. This maxim by the various other authorities who came up with justifiable arguments in its favour has brought about the Doctrine of Necessity.
This doctrine can be exemplified by the renowned emergency provisions contained in part XVIII of the Indian constitution, which ultimately suspends most of the fundamental rights except Articles 20 and 21. This doctrine of necessity is used to justify the state’s act of violating the fundamental rights of citizens as the impairment is to avoid greater harm and is manifested by the president only during crises.
The term doctrine of necessity has a close correlation with administrative actions discharged by the administrative authorities and, which is held to be intra vires and constitutional as it intends to restore order in the society. Reiteratively, the doctrine of necessity is considered to be an exception to one of the principles of natural justice called the rule against bias as it allows an authority to decide in certain situations, which are otherwise off-limits through the eyes of the law. The doctrine of necessity can be invoked in the following circumstances,
- In the absence of determining authority
- In particular situations, where the decision is necessarily be taken
The reason as to why the law has immunized several decisions which are likely to prejudice the due administration of justice and ultimately let rule against bias be defeated by the Doctrine of Necessity can be demystified by comprehending how the letter of law is at loggerheads with the spirit of law led to the establishment of the dictum ‘Justice must not only be done but must also appear to be done’ in the case of Rex v. Sussex Justices.[2]
The doctrine of Necessity thwarts the rule against bias to neglect the decision rendered by the adjudicator is ostensibly biased or lopsided but not necessarily so, as law always prefers resolving the issue over quashing the matter itself.
Historical Evolution of Doctrine of Necessity
The Doctrine of Necessity was invoked for the first time in the case of Federation of Pakistan v. Maulvi Tamizuddin Khan[3] in the year of 1954. In this notorious case, the extra-constitutional use of emergency power by the Governor General, Gulam Muhammad was held to be legally valid by the chief justice of Pakistan Muhammad Munir by relying on and referring to the maxim opined by Henry de Bracton, thereby implementing the Doctrine of necessity. Since then this doctrine has been in use in the majority of the commonwealth countries, one of the notable incidents, when the doctrine was invoked, was to justify the administrative activities in Nepal. But the only condition that has to be fulfilled is that the application of doctrine even may give rise to bias, at least by the use of bias the justice is not only done but appear to have been done pursuant to the principle laid in the aforementioned Rex v. Sussex Justice[4] case. Therefore, this Doctrine is an exception to the principle ‘Nemo Judex in Causa Sua’ as the Doctrine can be invoked in situations when there is an absence of the determining authority to take a decision, yet the issue has to be settled down.
As far as India is concerned, the Doctrine of Necessity was known to be invoked in the landmark case of Gullapalli Nageswara Rao v. APSRTC,[5] which aided in the development of this doctrine as many cases have come up with a new interpretation, usage, and invocation of the doctrine. Later, in the case of the Election Commission of India v. Dr. Subramanian Swamy,[6] the Doctrine of Necessity was made into the Doctrine of Absolute Necessity. Thereafter, the Doctrine is held to be not invoked every now and then as it may lead to a situation where no rule of law exists. Thereby, the Apex Court held that the Doctrine has to be invoked only in the case of absolute necessity.
Judicial Decisions on Doctrine of Necessity
1. Lalit Kumar Modi vs. Board of Control for Cricket in India and Ors[7] – In this case, the court has held that the Doctrine of Necessity is to be applied to overcome the crucial situations where gaps should be bridged through finding a solution to the issue rather than leaving it unaddressed.
2. J. Mohapatra and Co. and Anr. vs. State of Orissa and Anr[8] – The court elucidated the nature of the Doctrine that it is a vital duty of an authority to decide the case at hand when there is no other authority or judge there to decide the same, and clarified that this Doctrine applies to judicial, quasi-judicial, and administrative problems.
3. T. Muralidhar Rao vs. the State of A.P. and Ors[9] – Wherein the court held that the Doctrine should be invoked only during exceptional situations or emergencies that too have to be kept within bounds.
4. Regina v. Dudley and Stephens[10] – When defendants were charged with murdering a fellow person who has also been cast adrift in a boat with food and water under an extreme necessity of hunger, the court held that even the offence of murdering an innocent to save one’s own life is not justifiable and the doctrine of necessity cannot be invoked.
5. United States v. Holmes[11] – The facts of this case were that to prevent a boat containing 65 passengers and 17 crew members from being sunk, some of the passengers were thrown off from the boat by the crew members. During the trials, the court held that the act is justifiable as it was done as a consequence of necessity and can be considered as a defence against criminal homicide.
6. Rex v. Bourne[12] – The defendant was a gynecologist and was tried for the offence of unlawfully procuring a miscarriage to a 14 years girl with her parent’s consent who was raped by five soldiers. After hearing the facts of the case, the court held that the abortion was conducted in good faith and of absolute necessity as he believed that the rape victim would die if she continues her pregnancy.
7. Tata Cellular v. The Union of India[13] – The Apex Court has refused to apply one of the principles of natural justice ‘Nemo judex in Causa Sua’ to invalidate the tender of establishing a mobile network in four metro cities viz. Chennai, Bombay, Calcutta, and Delhi were given to the son of the Director General of Telecom Regulatory Authority of India (TRAI), under which an evaluation committee was established to evaluate the tender. It was reasoned by the court that without the Director General of Communication, the tender evaluation would be done, and as there was no option of substitution, pursuant to the principle of Necessity the decision was not quashed.
8. Election Commission of India v. Dr. Subramaniam Swamy[14] – In this case, the Doctrine of Necessity was changed into Doctrine of Absolute necessity and was held by the court that unless and until the absolute necessity arises the Doctrine cannot be invoked.
Conclusion
In a Nutshell, as held in the Lalit Kumar Modi case, the Doctrine of Necessity intends to render justice for the ultimate good of the people even by overlooking the possibility of bias. It is an exception to the Maxim ‘Nemo judex in causa sua,’ which disqualifies an authority on grounds of bias, but with the application of this Doctrine, the decision by such authority is shielded from disqualification, it is backed by the justification that when quashing of an issue causes great harm, the preference would be given to resolve the issue even if the decision is purported to be rotten with bias. Thus, with necessity, the authority who must be disqualified otherwise by the aforementioned maxim is protected by this Doctrine. Notably, Ashok Kumar Yadav v. State of Haryana[15], Javid Rasool Bhat v. the State of Jammu and Kashmir[16], and Institute of Chartered Accountancy v. L.K. Ratna[17] are the cases, where the Court invoked the Doctrine of Necessity to validate certain decisions after assessing the necessity for such decisions.
References
- http://www.legalservicesindia.com/article/1113/Doctrine-of-Necessity.html#:~:text=no%20one%20should%20be%20made,without%20prejudice%20and%20bias
- https://lexpeeps.in/doctrine-of-necessity/
- https://blog.ipleaders.in/all-about-the-doctrine-of-necessity/
[1] AIR 1950 SC 222
[2] [1924] 1 KB 256
[3] PLD 1955 FC 240
[4] Id at 2.
[5] AIR 1959 SC 308 case
[6] (2013)10SCC500
[7] (2011)10SCC106
[8] AIR1984SC1572
[9] 2004(5)ALT634
[10] (1884) 14 QBD 273
[11] 26 F.Cas. 360 (1842)
[12] [1938] 3 All ER 615
[13] (1994) 6 SCC 651
[14] (2013)10SCC500
[15] AIR 1987 SC 454
[16] (1984) 2 SCC 631
[17] (1986) 4 SCC 538
