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 decision-making . 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.
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 route’s 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 non-official 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 the Constitution 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 v 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 son’s 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-à-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.
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.
1. Basu Durga Das, Administrative Law, 6th ed.; Kamal Law House, Kolkatta, 2005.
2. De Smith’s Judicial Review of Administrative Action; 6th ed.; Sweet & Maxwell, 2007.
3. Jain M.P& Jain S.N, Principles of Administrative Law; 6th Enlarged ed.; Vol. I ; Wadhwa Nagpur, 2010.
4. Jain M.P, Indian Administrative Law: Cases and Materials; Vol. I.1994; Wadhwa and Company Nagpur, 1994, 1996.
5. Jain M.P, Treatise on Administrative Law; 1996 ed.; Wadhwa and Company Nagpur, 1996.
6. Massey I.P, Administrative Law; 7th ed.; EBC, 2008.
7. Pandey T.N, “Rule of Natural Justice in the Administration of Law”, Vol. 131, Taxman, 2003.
8. Sathe S.P, Administrative Law, 7th ed.; LexisNexis Butterworth’s Wadhwa Nagpur, 2008.
9. Takwani C.K, Lectures on Administrative Law; 4th ed.; EBC, 2011.
10. Wade H.W.R & Forsyth C.F, Administrative Law; 10th edn.; Oxford, 2009.
1. C K Thakkar, “From Duty To Act Judicially To Duty To Act Fairly”, (2003) 4 SCC Journal, 1.
2. Ranka N.M, “Principles of Natural Justice”, Vol.168,Current Tax Reporter, 2001.
3. The Tribune, 18th May, 1998, p. 11.
# AIR 1959 SC 308
# Federation of Pakistan v Maulvi Tamizuddin Khan
# R v Sussex (Lord Hewart)
# Election Commission of India v. Dr. Subramaniam Swamy
# AIR 1959 SC 1376
# AIR 1959 SC 308
# AIR 1984 SC 1572
# (1986) 4 SCC 537
# AIR 1987 SC 454
# AIR 1984 SC 873
# (1994) 6 SCC 651
# (1996) 4 SCC 104
# (1996) 4 SCC 104
# AIR 2000 SC 3243
# 2002 (2) SCC 290
# R v Sussex (Lord Hewart)
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