Administrative Law
Doctrine of Necessity in Administrative Law: Meaning, Conditions and Necessity as an Exception to Bias
The rule against bias says that a person with an interest in the outcome must not decide. But what happens when the only authority empowered to decide is the one with the interest? If the rule is applied without qualification, the matter cannot be decided at all, and a disqualification meant to secure justice ends by denying it. The doctrine of necessity answers this. Where an adjudicator is the only one competent to act, or where all available adjudicators are equally disqualified, the disqualification is set aside and the interested authority may act, because the alternative is a failure of justice. The doctrine is narrow, it is a rule of last resort, and it fails the moment an alternative exists. This topic sets out its meaning, conditions, applications and limits.
1. The Doctrine
The principle stated Where a disqualified adjudicator is the only person or body competent to decide the matter, or where all persons competent to decide are subject to the same disqualification, the rule against bias yields, and the adjudicator may and must act. The doctrine is expressed in the maxims that necessity makes lawful what would otherwise be unlawful, and that a disqualification will not be allowed to destroy the only tribunal with power to act. |
The doctrine rests on a simple comparison of evils. The rule against bias exists to prevent a miscarriage of justice. Where its application would mean that no decision can ever be taken, so that a claim cannot be adjudicated, an office cannot be filled or a statutory machinery cannot function, the rule would produce the very failure of justice it was designed to prevent. Faced with that choice, the law prefers a decision by a disqualified adjudicator to no decision at all, because the party's real complaint, that the decision may be tainted, is less grave than a total denial of adjudication.
Two features should be noted at the outset. The doctrine does not make the bias disappear; it makes the bias non-disqualifying in the particular situation. And it applies only to bias, not to the hearing rule: necessity may compel an interested authority to decide, but it does not excuse that authority from hearing the person affected.
2. Conditions for Its Application
- No alternative forum. The disqualified authority must be the only one competent to decide. If the matter can be transferred, or another member substituted, or the body reconstituted, the doctrine does not apply.
- The disqualification is common to all. Where every person qualified to sit is subject to the same interest, none is disqualified, because the disqualification cannot operate selectively.
- Statutory compulsion to act. The doctrine is strongest where the law requires the authority to decide, so that inaction is itself a breach of duty.
- Necessity, not convenience. Administrative inconvenience, delay or expense in arranging an alternative is not necessity; the alternative must be legally or practically unavailable.
- No wider immunity. The doctrine permits the authority to act; it does not relieve it of the duty to act fairly, to hear the parties, to consider the material and to give reasons.
3. When the Doctrine Does Not Apply
The limit is as important as the doctrine, and the leading Indian illustration is a case in which necessity was pleaded and rejected.
📖 J. Mohapatra and Co. v. State of Orissa, (1984) 4 SCC 103 Facts: A committee constituted by the State Government selected books for purchase and use in schools and libraries. Some members of the committee were themselves authors or publishers whose books were under consideration, and books written by them were selected. The selection was challenged on the ground of bias, and it was contended that since the statutory scheme required these very persons, as experts and officials, to be on the committee, the doctrine of necessity applied. Held: The Supreme Court set aside the selection. It held that the participation of members whose own books were being considered vitiated the process, because no person can be a judge in his own cause and it was immaterial whether the interested members actually influenced the decision. The doctrine of necessity was held inapplicable: there was nothing to prevent the interested members from withdrawing when their own books were considered, and the committee could have functioned without them, so the situation was not one in which the only competent body was disqualified. Necessity, the Court indicated, arises only where the disqualification cannot be avoided. Ratio: The doctrine applies only where there is genuinely no alternative. Where the interested member can withdraw, or the body can function without him, the ordinary rule against bias operates in full. |
The same principle governs two related situations. Where a member is disqualified but the body has a quorum without him, he must withdraw and the rest may decide. And where the interested person occupies the chair of a multi-member body, his withdrawal from the particular item, rather than the abandonment of the proceeding, is the appropriate course.
4. Where the Doctrine Has Been Applied
📖 Election Commission of India v. Dr. Subramaniam Swamy, (1996) 4 SCC 104 Facts: A question arose under Article 192 on the disqualification of certain legislators in Tamil Nadu, on which the Governor was required to act on the opinion of the Election Commission. The Chief Election Commissioner was alleged to have a personal bias arising from his relations with one of the persons concerned, and the question was whether he could take part in the Commission's opinion, the Commission being the only body the Constitution charged with giving it. Held: The Supreme Court held that the doctrine of necessity would ordinarily apply where the adjudicator is the only person or body competent to act, since the alternative would be a failure of the constitutional machinery and no opinion could be rendered at all. But the Court also indicated that the doctrine should be confined by the doctrine of necessity being invoked only where it is truly unavoidable: where the Commission is a multi-member body, the biased member can withdraw and leave the remaining members to act, and it directed that the Chief Election Commissioner should not participate while the other Election Commissioners rendered the opinion. Ratio: Necessity is a last resort. Where the disqualified person is part of a body that can function without him, the proper course is his withdrawal, and the doctrine is invoked only when the machinery would otherwise be paralysed. |
Other recognised applications follow the same logic. A judge may hear a matter in which every judge of the court has the same interest, such as a challenge to judicial salaries or pensions, because otherwise no court could decide it. A statutory authority that is both the complainant and the decider under the scheme of the Act may act where the Act permits no other course, subject always to the duty of fairness. And an appellate body composed of officials of the department whose order is under appeal may hear the appeal where the statute so provides and no alternative exists.
5. The Doctrine of Necessity and the Doctrine of Absolute Necessity
Writers sometimes distinguish the doctrine of necessity from a narrower rule sometimes called absolute necessity. The distinction is one of degree and is worth stating. Necessity in the ordinary sense arises where the disqualified authority is the only competent one, so that the choice is between a tainted decision and no decision. Absolute necessity describes the situation where even the withdrawal of the interested member is impossible, because he is the sole repository of the power, so that no reconstitution or substitution can avoid the difficulty. The Indian cases reach the same result by asking a single question: is the disqualification avoidable? Where it is, the rule against bias applies; where it is not, necessity permits the authority to act.
6. The Doctrine in Practice
Situation | Result |
|---|---|
The sole statutory authority is personally interested and no other body can decide | Necessity applies; the authority must act, subject to fairness in procedure |
A multi-member body has an interested member and a quorum without him | Necessity does not apply; the member withdraws and the rest decide (Subramaniam Swamy) |
An interested member can withdraw when his own matter is considered | Necessity does not apply; the ordinary rule operates (J. Mohapatra) |
Every judge or member has the same interest, as with judicial salaries | Necessity applies; all may sit, since the disqualification cannot operate selectively |
An alternative forum exists but is inconvenient or slower | Necessity does not apply; convenience is not necessity |
The interested authority acts under necessity but denies a hearing | The decision falls; necessity excuses the bias, not the breach of the hearing rule |
⚠ Necessity excuses the bias, not the unfairness The doctrine is frequently stated too broadly, as though it dispensed with natural justice altogether in the situations it covers. It does not. It operates on one rule only, nemo judex in causa sua, and only to the extent of permitting a disqualified authority to act where no one else can. Everything else continues to apply: the person affected must still receive notice and a hearing, the decision must still rest on disclosed material, and reasons must still be given. An authority acting under necessity is, if anything, expected to be more careful about the rest of the procedure, precisely because the safeguard of an impartial decider is unavailable. |
7. The Position in Summary
- The doctrine of necessity permits a disqualified adjudicator to act where he is the only authority competent to decide, or where all competent authorities share the same disqualification.
- It rests on the comparison of evils: a decision by an interested authority is preferred to a total failure of adjudication, which is the greater denial of justice.
- Its conditions are the absence of any alternative forum, a disqualification common to all, statutory compulsion to act, and genuine necessity rather than convenience.
- It does not apply where the interested member can withdraw or the body can function without him (J. Mohapatra; Subramaniam Swamy), and the proper course in a multi-member body is withdrawal rather than reliance on necessity.
- It operates only on the rule against bias and leaves the hearing rule, the duty to decide on disclosed material and the duty to give reasons untouched.
8. Related Topics and Provisions
- Nemo Judex in Causa Sua: the Rule against Bias (Topic 62): the rule to which this doctrine is an exception.
- Audi Alteram Partem (Topic 61): the rule that necessity does not displace.
- Principles of Natural Justice (Topics 58 and 59): the exceptions and exclusions generally.
- Quasi-Judicial Functions (Topic 18): the functions to which the rule against bias attaches most strictly.
- Administrative Adjudication (Topic 20): agencies that combine investigation and decision.
- Constitution of India: Articles 14, 21, 192, 226 and 227.