Doctrine of Necessity

The minimum requirement of the natural justice is that, the authority giving decision must be composed of impartial persons acting fairly without any kind of bias. When a judge is improperly influenced to reach to the decision, it is when rule against bias strikes. Objective of the rule is to ensure impartial decisions without any exterior influence and public confidence. Where a decision is formed with a biased mind, it results in nullity and the trial is said to be “Coram non judice”. There are circumstances where a decision by an adjudicator has a possibility of being biased but the situation is such that it cannot be neglected, In case of such situations, the adjudicator is not held liable for the decision and it is not set aside. Such situations are an exception to the rule against bias i.e., Statute may exclude bias and Necessity excludes bias. This exception is termed as Doctrine of Necessity.

Doctrine of necessity is a term used to describe a principle of constitutional law, where in an emergency situation or an exigent circumstance, a state may legally act which in other circumstances is deemed to be illegal. This principle is used to justify violation of right by state in extreme situations which is not a situation formed from its own doing. Necessity is said to be a defense for violating law, but it should be violated to prevent a greater harm. The principle is based on the writings originated in medieval times by Henry de Bracton and various other legal authorities have assisted in the justification and advancement of principle in modern times. This principle is mainly based on the Bracton’s maxim, ‘that which is otherwise not lawful is made lawful by necessity’.  

The term was first used in 1954 in a controversial judgement in Pakistan where Chief Justice Muhammad Munir validated a decision for the use of emergency powers in an extra-constitutional affair by Governor General, Ghulam Mohammad providing that the doctrine was establishing. Since then, it has been applied in many commonwealth countries. In 2010, the doctrine was applied in Nepal to justify administrative actions.

In India the Gullapalli Nageshwar Rao v APSRTC case is famously known for invoking this doctrine. Further many cases have come forward and have helped develop the understanding and invocation of this doctrine. Recently, it is said that the infamous Ayodhya Ram mandir case also involves invocation of Doctrine of necessity.

Doctrine of Necessity was changed to Doctrine of Absolute Necessity in Election Commission of India v. Dr. Subramaniam Swamy where it was held that this doctrine shall be used only in case of absolute necessity.

Necessity excludes bias

Although this doctrine protects adjudicators from bias, but it does not mean that necessity can always be used as an excuse for bias. Necessity clearly excludes bias and an adjudicator shall be disqualified if any kind of bias is seen in judgements but there are few exceptions where the judgements by the adjudicator are termed to be valid. The adjudicator can validly adjudicate if:

  1. No other person competent to arbitrate is available.
  2. A quorum cannot be formed without him.
  3. No other competent tribunal can be established.

In situations where there is a choice in between moving forward with a biased judgement or quash the action altogether, the choice always falls in favour of the former. In such situations the rule against bias gives up in front of the necessity. When a statute empowers an authority to act in a way it is solely its responsibility to come to a decision regarding it and it will only be him who can act accordingly and no other authority providing no way of escape. Bias will not be disqualified if there is no competent to the authority responsible for an action. 

If the Doctrine of necessity is allowed to be invoked in every situation, there are chances that it would benefit the defaulting party but at the same time if the doctrine is not allowed in full play it would quash the decision which will provide no justice to any of the party. To promote decision making, it is important to critically analyse the situation and decide whether the doctrine of necessity can be invoked or not. Doctrine of necessity provides an opportunity to challenge the administrative actions in court. However, the term ‘bias’ must be used in its proper manner. If bias arising out of predetermined concepts means the complete 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 predetermined concepts are such that it is capable of biasing the mind of the judge, administrative action would not be invalidated. 

Judicial Decisions

Gullapali Nageshwar Rao v State of Andhra Pradesh was a consequence of Gullapali 1 case. Fresh notices were issued regarding the grievances of affected party related to bus route nationalization which was to be heard by chief minister of Andhra Pradesh, who was also transport minister. Chief minister heard the objections but rejected them and ordered for its implementation. This was challenged in supreme court on the grounds of biased decision. Supreme court upheld the lower court’s decision invoking doctrine of necessity stating that the statute provided powers to chief minister to hear the grievances and pass the necessary orders related to it and if Chief minister will not take the necessary steps then who will. In this case supreme court implied doctrine of necessity even though it did not expressly state it.

There are several cases where doctrine of necessity was rejected due to non-compliance of necessary principles, one of them is Institute of Chartered Accountancy v L.K. Ratna where court held that doctrine of necessity could not be applied as statutory compulsion of the principles of necessity were absent and disqualified the biased judgement.

In Ashok Kumar Yadav v State of Haryana, Supreme court held that doctrine of necessity acts as an exception to the rule against bias. Herein, relative of member of the board of Haryana State Public Service Commission was interviewed by the same board and was selected. Later the decision was asked to be strike down on the grounds of personal relationship. In cases where a candidate is in a personal relationship with authority, the nominated candidate cannot be asked to withdraw his nomination only on the basis of close relationship and ask another candidate to be placed instead of him. But in this case situation is seen differently here a candidate is not merely selected through a selection committee but also through Article 316 of the Constitution of India. Herein if a person is asked to withdraw no other person cannot be selected in place of the former. Sometimes no other nominee is available at all for substitution which will affect the commission. Hence the supreme court invoked doctrine of necessity and held the decision to be valid. This case was also used as a precedent in deciding the judgement of another similar case Javid Rasool Bhat v State Of Jammu and Kashmir.


Doctrine of necessity acts as an exception to ‘Nemo judex in causa sua’, where an authority is disqualified on the grounds of biased decision. When doctrine of necessity is invoked, it acts as a defence in violating the law making the decision valid and not biased. It can only be invoked in certain circumstances where if the doctrine is not brought into full play, it would lead to complete quashing of the issue which would cause a greater harm. In the same time this doctrine cannot be used in every situation, it has been made clear by the supreme court to use this doctrine only in case of absolute necessity which means where no other solution to the issue can be made or statutory provisions are compel the authority. Hence the Doctrine of necessity was changed to Doctrine of absolute necessity.

Aishwarya Says:

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