Doctrine of Necessity: Rationale, Scope, Conditions and its Limits

The doctrine of necessity permits what the law would otherwise forbid, on the ground that the alternative is that nothing can be done at all. Its principal application in administrative law is as an exception to the rule against bias: where the person disqualified by interest is the only person empowered to act, disqualifying him would mean that no decision could be taken, and the law prefers a decision by an interested authority to no decision at all. The doctrine has other applications, in emergency and in the conduct of proceedings, and it has a constitutional cousin invoked in crises. It is also the most easily abused of the doctrines in this subject, because an authority reluctant to disqualify itself will readily find that nobody else can act. This topic sets out the doctrine and the conditions that confine it.

1. The Rationale

The maxim is that necessity makes lawful what would otherwise be unlawful, and in this field it rests on a comparison of two evils. If a statute confers a power on a named authority and that authority is disqualified by interest, and if no other body is empowered to act, then applying the rule against bias means the power is never exercised. The person who invokes the disqualification does not thereby obtain a decision from an impartial authority; he obtains no decision at all, and so may the public generally.

The doctrine therefore does not assert that a biased decision is as good as an impartial one. It asserts that where the choice is between an interested decision-maker and paralysis of the statutory scheme, the law prefers the former, because the object of the rule against bias is to secure the administration of justice and not to defeat it.

2. The Origin in the Bias Cases

📖 Dimes v. Proprietors of Grand Junction Canal, (1852) 3 HL Cas 759

Facts: Lord Cottenham, the Lord Chancellor, affirmed decrees made in favour of a canal company in which he held a substantial shareholding. There was no suggestion that his shareholding had in fact influenced his decision, and the merits of the decrees were not in doubt.

Held: The House of Lords set aside the decrees. It held that no man may be a judge in his own cause, and that a pecuniary interest, however small, disqualifies automatically: it is not necessary to show that the interest in fact influenced the decision, because the principle is of the utmost importance that justice should not only be done but should manifestly be seen to be done, and a decision by a judge with a financial stake cannot satisfy that requirement. But the House also affirmed that the disqualification does not apply where the interested judge is the only person competent to act: Lord Cottenham's signature had been necessary to enrol the order so that it could be brought before the House on appeal, and an act of that character, which no other person could perform, was not vitiated, since to hold otherwise would deny the litigant any means of proceeding at all.

Ratio: Pecuniary interest disqualifies automatically and without proof of influence. But where the interested person is the only one competent to perform the act, necessity permits him to perform it, since the alternative is that the act cannot be done.

3. The Doctrine in Indian Administrative Law

📖 Election Commission of India v. Dr. Subramaniam Swamy, (1996) 4 SCC 104

Facts: A question arose before the Election Commission concerning the disqualification of a Chief Minister for an office of profit, on which the Commission's opinion is tendered to the Governor. The Chief Election Commissioner was alleged to be close to the person concerned, so that a reasonable apprehension of bias arose. At the material time the Commission consisted of the Chief Election Commissioner alone for this purpose, so no other member of the Commission could form the opinion, and the statutory function could not be performed by anybody else.

Held: The Supreme Court examined the doctrine of necessity and worked out a middle course. It held that where the authority in whom a statutory power is vested is disqualified by bias and no other authority is empowered to exercise it, the doctrine of necessity permits and requires him to act, because the statutory function must be performed and the alternative would be a failure of justice; a disqualification cannot be allowed to defeat the statutory scheme. But the Court held that the doctrine is confined to what necessity actually requires, and that where the difficulty can be avoided by an arrangement that preserves impartiality it should be. It accordingly directed that the Chief Election Commissioner should not participate in the discussion and formation of the opinion, which the other Election Commissioners would draw up, and should confine himself to what only he could do, namely conveying the opinion, so that the statutory function was discharged without the disqualified person deciding it.

Ratio: Where the disqualified authority is the only one empowered to act, necessity permits him to act; but the doctrine extends only so far as necessity requires, and where the function can be discharged by an arrangement that excludes him from the decision, that course must be adopted.

4. The Conditions

The disqualification must be genuine, arising from a recognised species of bias, rather than asserted to justify a convenient course.
No other authority must be competent to perform the function, whether under the statute, by delegation, by nomination or by substitution.
The function must have to be performed, so that inaction is not a lawful option; where the matter may simply be left undecided, necessity does not arise.
The doctrine extends only so far as necessity requires, so the disqualified person does only what nobody else can do (Subramaniam Swamy).
Disclosure is required, the interest being placed on record so that the reliance on necessity is itself open to examination.
Actual bias defeats it. Necessity excuses the appearance of bias arising from position or interest; it does not authorise a decision actually influenced by partiality or malice.

5. The Fields of Application

Situation	Position
The sole statutory authority is disqualified by interest	Necessity permits him to act, subject to doing only what is necessary
One member of a multi-member body is disqualified	Necessity does not apply; he must withdraw and the others act
All members of a body are equally affected by the subject matter	Necessity applies, as where a body decides its own members' emoluments
Judges deciding a question affecting judges generally	Necessity applies; otherwise no court could decide it
An emergency requiring immediate action without a hearing	A related principle; the hearing is truncated or postponed rather than dispensed with
An authority claiming that a substitute would be inconvenient	Not necessity; inconvenience is not impossibility
An authority that failed to arrange a substitute in time	Not necessity; the difficulty must not be of the authority's own making
A decision actually influenced by the interest	Necessity is no answer; the order falls for actual bias

6. Necessity, Waiver and Emergency Distinguished

Basis	Necessity	Waiver	Emergency
Why the rule yields	No other authority can act	The person entitled has given up the objection	Immediate action is required and delay would defeat the object
Whose act matters	The statute's, in conferring the power on one authority	The affected person's	The situation's
What is excused	The appearance of bias	The objection to the defect	Prior hearing, wholly or in part
Is the defect cured?	No; it is tolerated because unavoidable	Yes, as between the parties	No; the hearing is postponed or truncated
Knowledge required	Not applicable	Knowledge of the defect and of the right to object	Not applicable
Limit	Only so far as necessity requires	Cannot cure want of jurisdiction	A post-decisional hearing is ordinarily required

⚠ Necessity is a doctrine of impossibility, not of inconvenience

The whole risk in this area is that the doctrine will be used to excuse a decision that a differently arranged process could have avoided. Its correct application requires that acting through anyone else be impossible, not merely troublesome, slow or awkward. That is why Subramaniam Swamy matters beyond its facts: confronted with a case in which the sole authority was disqualified, the Court did not simply permit him to decide, but examined what the function actually required and separated the part only he could perform from the part others could. The question to ask is therefore not whether the disqualified authority may act, but how much of the function genuinely cannot be performed by anybody else, and necessity extends no further than the answer.

7. The Position in Summary

The doctrine of necessity permits a disqualified authority to act where the alternative is that the statutory function cannot be performed at all, the law preferring a decision by an interested authority to no decision.
Pecuniary interest disqualifies automatically and without proof of influence, but the disqualification does not apply to an act that only the interested person can perform (Dimes).
Where the disqualified authority is the only one empowered to act, necessity permits him to act, but only so far as necessity requires, and an arrangement preserving impartiality must be adopted where one is possible (Subramaniam Swamy).
Its conditions are a genuine disqualification, the absence of any competent alternative, an obligation to act, minimum extent, disclosure, and the absence of actual bias.
It does not apply where one member of a multi-member body is disqualified, where a substitute is merely inconvenient, or where the difficulty is of the authority's own making.

8. Related Topics and Provisions

Doctrine of Necessity as Exception to Bias (Topic 60) and Doctrine of Bias (Topic 175).
Rule Against Bias (Topic 62): the rule to which this is the exception.
Natural Justice in Emergency Situations (Topic 77): the related principle of urgency.
Waiver of Natural Justice (Topic 80): the other way in which the rule yields.
Exceptions to Principles of Natural Justice (Topic 75): the three groups of exception.
Constitution of India: Articles 14, 21, 32, 226 and 324.