The Doctrine of Necessity

In one line

If the only person who can decide is disqualified, he decides, because a disqualification that stops all decision is worse than the bias it prevents.

In the wording a student can write in an exam: the doctrine of necessity permits an adjudicator who would otherwise be disqualified by bias to act, where he is the only authority competent to act and where the matter would otherwise remain undecided; it is an exception born of necessity and not of convenience, and it does not apply where an unbiased authority could have been constituted.

Why the exception exists

Because the rule against bias is a means and not an end. Its purpose is that disputes should be decided fairly. If applying it means that a dispute cannot be decided at all, the purpose is defeated. So where the statute names one authority and that authority is disqualified, the law prefers a decision by a disqualified adjudicator to no decision at all.

The conditions

One, there must be no other competent authority. The statute vests the power in one body and provides no substitute.

Two, the matter must require decision. The doctrine does not save a decision that could simply have been left.

Three, the necessity must be real. Inconvenience, delay or expense are not necessity.

Four, the adjudicator must otherwise act fairly. The doctrine excuses the disqualification, nothing else: the hearing, the disclosure and the reasons are all still owed.

The Indian limit

J. Mohapatra and Co. v. State of Orissa, AIR 1984 SC 1572, worked in [The Kinds of Bias], contains the clearest Indian statement of the limit. The State argued necessity, because the persons competent to assess books were authors. The Court rejected it: there were many qualified persons in the State who were not authors of books under consideration, so a committee could have been constituted differently, and the doctrine had no application.

That is the sentence to remember. Necessity is not an excuse for having chosen the wrong people; it applies only where no other choice existed.

The typical situations

A statutory authority of one person. A Registrar, a Commissioner or a Chancellor named by the Act.

A body whose quorum cannot be made without the disqualified member.

A challenge to all the possible adjudicators at once, for instance an allegation that every member of a service tribunal is interested because the outcome affects their own pay.

A court hearing a matter that affects all judges, such as judicial salaries, where every judge is interested and the case must still be decided.

A worked example

A State Act provides that the Chancellor of a university shall decide disputes about the appointment of the Vice-Chancellor. A dispute arises about an appointment the Chancellor himself made on the recommendation of a search committee.