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Nemo in propria causa judex, esse debet, i.e.; no one should be made a judge in his
own cause. It is popularly known as the rule against bias. It is the minimal
requirement of the natural justice that the authority giving decision must be
composed of impartial persons acting fairly, without prejudice and bias. Bias means
an operative prejudice, whether conscious or unconscious, as result of some
preconceived opinion or predisposition, in relation to a party or an issue. Dictionary
meaning of the term bias suggests anything which tends a person to decide a case
other than on the basis of evidences. The rule against bias strikes against those
factors which may improperly influence a judge against arriving at a decision in a
particular case. This rule is based on the premises that it is against the human
psychology to decide a case against his own interest. The basic objective of this rule
is to ensure public confidence in the impartiality of the administrative adjudicatory
process. A decision which is a result of bias is a nullity and the trial is Coram non
judice.
The Apex Court has discovered a new category of bias arising from thoroughly
unreasonable obstinacy. This new form of bias was discovered in a situation where a
judge of Calcutta High Court upheld his own judgment while sitting in appeal against
his own judgment. This was a direct violation of the rule that no judge can sit in
appeal against his own judgment. This rule can only be violated indirectly. In this
case in a fresh writ petition, the judge validated his own order in an earlier writ
petition which had been overruled by the Division Bench. What applies to judicial
process
can
be
applied
to
administrative
process
as
well.
In Gullapalli Nageshwar Rao v APSRTC, Supreme Court recognized official bias as a
ground to challenge the decision taken by administrative authority. Secretary of
Transport in Andhra Pradesh made a policy for nationalization of bus routes. The
policy was opposed by private bus owners. Transport Secretary himself heard the
objections of private bus owners, rejected them and ordered for implementation of
policy. Supreme Court struck down this decision on the grounds of official bias.
There are certain circumstances where though there is bias on part of adjudicator or
the adjudicator is in such a position that possibility of bias can not be excluded but
despite there being such circumstances, if there are circumstance discussed herein
after, such decision of such adjudicator will not be liable to be set aside. These
circumstances are discussed here as exceptions to rule against bias i.e. Statute may
exclude
bias
and
Necessity
excludes
bias.
Evolution
of
the
Doctrine
of
Necessity
The term Doctrine of Necessity is a term used to describe the basis on which
administrative actions by administrative authority, which are designed to restore
order, are found to be constitutional. The maxim on which the doctrine is based
originated in the writings of the medieval jurist Henry de Bracton, and similar
justifications for this kind of administrative action have been advanced by more
recent
legal
authorities,
including
William
Blackstone.
In modern times, the term was first used in a controversial 1954 judgment in which
Pakistani Chief Justice Muhammad Munir validated 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', thereby providing the label that would come to be attached to
the
judgment
and
the
doctrine
that
it
was
establishing.

The Doctrine of Necessity has since been applied in a number of Commonwealth


countries, and in 2010 was invoked to justify administrative actions in Nepal.
What is objectionable is not whether the decision is actually tainted with bias but
that the circumstances are such as to create a reasonable apprehension in the minds
of others that there is a likelihood of bias affecting the decision. The basic rule
underlying this principle is that Justice must not only be done but must also appear
to
be
done.
Doctrine

of

Necessity

is

an

exception

to

Nemo

judex

in

causa

sua.

Necessity
excludes
bias
An adjudicator who is subject to disqualification on account of bias may
nevertheless,
can
validly
adjudicate
if:
1)
No
other
person
competent
to
adjudicate
is
available;
2)
A
quorum
can
not
be
formed
without
him;
or
3)
No
other
competent
tribunal
can
be
constituted.
In such situation the rule against bias has to give way to the necessity. If the choice
is between allowing a biased person to adjudicate or to stifle the action altogether,
the choice must fall in favour of the former, as it is the only way to promote decisionmaking . Where statute empowers a particular minister or official to act, he will
naturally be the one and the only person who can do so. There is no way escaping
the responsibility, even if he is personally interested. Transfer of responsibility is,
indeed a recognized type of ultra vires . In one case it was unsuccessfully argued
that the only minister competent to confirm a compulsory purchase order for land for
an airport had disqualified himself by showing bias and that the local authority could
only apply local act of parliament . A governor of a colony may validly assent to an
act of indemnity for his own actions since otherwise the act could not be passed at
all.
Bias would not disqualify an officer from taking an action if no other person is
competent to act in his place. This exception is based on the doctrine which it would
otherwise not countenance on the touchstone of judicial propriety. The doctrine of
necessity makes it imperative for the authority to decide and considerations of
judicial propriety must yield. It can be invoked in cases of bias where there is no
authority to decide the issue. If the doctrine of necessity is not allowed full play in
certain unavoidable situations, it would impede the course of justice itself and the
defaulting party would benefit from it. If the choice is between either to allow a
biased person to act or to stifle the action altogether, the choice must fall in favor of
the former as it is the only way to promote decision-making. Therefore, the Court
held that bias would not vitiate the action of the Speaker in impeachment
proceedings and the action of the Chief Election Commissioner in election matters.
In the USA, the disqualification arising out of bias arises from the due process of the
American Constitution. Therefore, an administrative action can be challenged in India
and England. Recent trends in the judicial behavior of the American Supreme Court
also indicate that where the administrative authority prejudged the issue, the action
will
be
vitiated.
However, the term bias must be confined to its proper place. If bias arising out of
preconceived notions means the total absence of preconceptions in the mind of the
judge, then no one has ever had a fair trial, and no one ever will. Therefore, unless
the preconceived notions are such that it has the capacity of biasing the mind of the
judge,
administrative
action
would
not
be
vitiated.

Judicial
Decisions
In Gullapali Nageshwar Rao v State of Andhra Pradesh, as a consequence of Gullapali
1 case, fresh notices were issued to invite the affected parties to come with fresh
issues regarding their grievances about the bus routes nationalization policy to be
heard by the Andhra Pradesh Chief Minister, who was also a Transport Minister. Chief
Minister heard the objections, rejected them, and ordered for implementation of the
policy. The order was challenged on the newly found grounds of official bias along
with the precedent of Gullapali1 in aid. High Court rejected the contention of official
bias. Supreme Court upheld the decision of High Court. Secretary was held to be a
part of the Ministry but Minister was not held to be a part of the Minister. The Statute
empowered the Chief Minister to hear the grievances and pass necessary orders in
this case, and the question is that if he would not do it, then who else would.
Supreme Court, in this landmark judgment, impliedly provides for Doctrine of
Necessity
but
does
not
expressly
state
it.
According to Wade, Ministerial and Departmental policy can not ve regarded as a
disqualifying
bias
In J. Mahopatra and Co. v State of Orrisa the contention of doctrine of necessity was
rejected by the Supreme Court on the ground that though members of the
subcommittee were appointed by virtue of their official positions, they were holding
positions in the secretary education department of the government of Orrisa and the
director higher education etc. There was, however, nothing to prevent those whose
books were submitted for selection from pointing out this fact to the state
government so that it could amend its resolution by appointing a substitution or
substitutes as the case may be. There was equally nothing to prevent such nonofficial author members from resigning from the committee on the ground of their
interest
in
the
matter.
In Institute of Chartered Accountants v. L.K. Ratna the court held that in absence of
statutory
compulsion
the
principles
of
necessity
does
not
apply.
In Ashok Kumar Yadav v State of Haryana, Supreme Court showed that Doctrine of
Necessity acts as an exception to official bias. During the selection process in
Haryana State Public Service Commission, relative of the member of the Selection
Board was interviewed and later personal relationship was alleged as a ground to
strike down the decision of the Selection Board. There can be no doubt that if a
selection committee is constituted for the purpose of selecting candidates on merits
and one of the members of the Selection Committee is closely related to a candidate
appearing for selection, it would not be enough for such member merely to withdraw
altogether from the entire selection process and ask the authorities to nominate
another person in his place on the selection committee, because otherwise all the
selection made would be vitiated on account of reasonable likelihood of bias
affecting the process of selection. But the situation here is different as the selection
of candidates to Haryana Civil Service (Executive) and allied services, is not done by
a selection committee made for the purpose but is provided for by Article 316 of
theConstitution of India. Hence, the same principle as in case of personal relationship
cannot be applied in this case. If a member of Public Service Commission were to
withdraw altogether from the selection making process on the ground that a close
relative of his appearing for selection, no other person save a member can be
substituted in his place. And it may also happen sometimes that no other member is
available at all and hence functioning of Public Service Commission may be affected.
In this case hence, Supreme Court Invoked the Doctrine Of Necessity expressly and
held that the decision by the Committee valid and untarnished by any sort of bias.
Chinappa Reddy, J took the same stand in deciding another such similar case Javid

Rasool

Bhat

State

Of

Jammu

and

Kashmir.

In Tata Cellular v Union of India, Government of India issued invitations to all the
mobile operators to establish networks in the four metro cities. Evaluation
Committee which was supposed to evaluate the tenders under Telecom Regulatory
Authority of India (TRAI), had Director General of Telecommunication in it. His sons
tender was selected at the end of the evaluation process. In thos case, Supreme
Court rejected the violation of Nemo judex in causa sua as without Director General
of Communication no tender can be selected and evaluation is not possible. There
was no choice of substitution and hence the decision was not liable to be struck
down. In this case Supreme Court applied the Doctrine of Necessity liberally.
Stringent rules were laid down by the Supreme Court in Election Commission of India
v.
Dr.
Subramaniam
Swamy.
In Election Commission of India v. Dr. Subramaniam Swamy it was observed that in a
multi-member commission when the chief election commission is found to have
likelihood of bias, his participation is not mandatory and the doctrine of necessity will
not apply. The proper course for him was that he could call for a meeting and
withdrew from the meeting leaving it to the other members to decide. In case there
was any difference between them, then doctrine of necessity would apply. In this
case, Supreme Court changed Doctrine of Necessity to Doctrine of absolute
Necessity meaning thereby that this doctrine can be invoked only in cases of
absolute
necessity.
Similarly in Badrinath v. Govt. of Tamil Nadu the joint screening committee, which
was headed by one Shri V. Kathikeyan Chief Secretary to the Government, against
whom the appellant has filed writ petition before the Tamil Nadu High Court seeking
sanction for prosecuting him for defamation. The writ petition was dismissed but the
Division Bench allowed the appeal and the Supreme Court confirmed the same.
While the litigation was pending the joint screening committee so constituted did not
found the appellant fit for promotion to super time scale. The contention of the
appellant was that the said joint screening committee was grossly biased against
him as dropped disciplinary proceedings against the appellant was given undue
importance though positive aspects of his career were not incorporated in his CRs.
The Supreme Court found Shri V. Kathikayan biased against the appellants. The
doctrine of necessity was contended as Shri V. Karthikeyan was the chief secretary
and as per office order, the screening committee has to consist of (i) the chief
secretary to its government; (ii) the first member, board of revenue and (iii) second
secretary to the government. The Supreme Court rejecting the contention of
necessity
held:
It may be noticed that where a statute or statutory rule constitutes a designated
authority to take administration or quasi judicial decisions and where the person
concerned is disqualified to take decision on the principle of likelihood of bias then
law (in certain circumstances) makes an exception in situation and the said person is
entitled to take a decision notwithstanding his disqualification, for otherwise no
decision can be taken by any body on the issue and public interest will suffer. But the
position in present case is that there is no statutory rule compelling the chief
secretary to be a member of the screening committee. If the committee is
constituted under administrative order and a member is disqualified in a given
situation vis--vis a particular candidate whose promotion is in question, there can
be no difficulty in his rescuing himself and requesting other senior official to
substitute in his place in the committee. The disqualified member could leave it to
the other two to take decision. In case, however, they differ then the authority, which
constituted the committee could be requested to nominate third member.

This
principle
is
well
settled.
In Amarnath Chaudhary v. Braithwaite and Co. the appellant was employee of the
respondent, certain charges were leveled against him and the inquiry committee
conducted an enquiry proceeding. The inquiry committee after making an enquiry
against the appellant found the charge against him proved. The inquiry committee
submitted its report to the disciplinary authority. The disciplinary authority was the
Chairman cum Managing Director. He accepted the report of the inquiry committee
and ordered removal of the appellant from service. Under regulation framed by the
company an appeal against order of the disciplinary authority lies before the board
of directors of the company. The appellant moved appeal before the board, which
was presided over by the Chairman cum Managing Director who was Shri S.
Krishnaswami, who was also the disciplinary authority. The board dismissed the
appeal filed by the appellant by a non-speaking order. The dismissal was challenged
on the ground of bias as the disciplinary authority and the appellate authority were
the same. Doctrine of necessity was placed into service. The court holding that the
doctrine
of
necessity
is
not
applicable
said:
It is not in dispute that Shri Krishanswamy, the then Chairman cum Managing
Director of the company acted as disciplinary authority as well as the appellate
authority, when he presided over and participated in the deliberation of the meeting
of the board while deciding the appeal of the appellant. Such dual function is not
permissible on account of established rule against bias. In a situation where such a
dual function is discharged by one and the same authority, unless permitted by an
Act of legislation or statutory provision, the same would be contrary to rule against
bias.
The "doctrine of necessity" was pleaded on the ground that the regulation of the
company provides that the disciplinary authority that happens to be Chairman cum
Managing Director was required to preside over the meeting of the board. The court
referring to the regulation of the company held that the regulation does not so
provide and the board can be constituted excluding the Chairman-cum-Managing
Director.
The
"Doctrine
of
Necessity"
is
held
not
applicable.
Conclusion
It is one of the Fundamental principle of Jurisprudence that no man can be a judge in
his own cause and that if there is a reasonable likelihood of bias it is in accordance
with natural justice and commonsense that the Judge likely to biased should be
incapacitated from sitting. The question is not whether the judge is biased or not,
the question is whether there is any real likelihood of bias or not. What is
objectionable is not whether the decision is actually tainted with bias but that the
circumstances are such as to create a reasonable apprehension in the minds of
others that there is a likelihood of bias affecting the decision. The basic rule
underlying this principle is that Justice must not only be done but must also appear
to be done. This principle has received a wide recognition in several Supreme Court
Decisions.
Doctrine of Necessity acts as an exception to Nemo judex in causa sua. Bias would
not disqualify an officer from taking an action if no other person is competent to act
in his place. This exception is based on the doctrine which it would otherwise not
countenance on the touchstone of judicial propriety. The doctrine of necessity makes
it imperative for the authority to decide and considerations of judicial propriety must
yield. It can be invoked in cases of bias where there is no authority to decide the
issue. If the doctrine of necessity is not allowed full play in certain unavoidable
situations, it would impede the course of justice itself and the defaulting party would
benefit from it. If the choice is between either to allow a biased person to act or to
stifle the action altogether, the choice must fall in favor of the former as it is the only

way to promote decision-making. But it has also been made very clear by the
Supreme Court that Doctrine of Necessity can not be invoked every now and then, as
if that is done, it might lead to absence of Rule of Law in the Society. Hence, Doctrine
of
Necessity
should
be
taken
as
Doctrine
of
Absolute
Necessity
Every kind of preference is not sufficient to vitiate an administrative action. If the
preference is rational and unaccompanied by consideration of rational interest,
pecuniary or otherwise, it would not vitiate the decision. Similarly, there must be a
real likelihood and not a mere suspicion of bias, before the proceedings can be
quashed on the ground of bias. It is also important to note that this rule is not
confined to cases where judicial power stricto sensu is exercised. It is appropriately
extended to all cases where an independent mind has to be applied to arrive at a fair
and just decision between the rival claims of the parties. The strict standards applied
to authorities exercising judicial power are being increasingly applied to
administrative bodies for it is vital to the maintenance of rule of law in a welfare
state where the jurisdiction of administrative bodies is increasing at a rapid pace that
the instrumentalities of the State should discharge their functions in a fair and just
manner.

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