The Doctrine of Necessity
Chapter Seventy-Six
Syllabus topic 5, "Procedural fairness"
Pages 228 to 229 of 430
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.
The Doctrine of Necessity
He is disqualified by subject-matter bias, because he is in substance being asked to review his own act. But the Act names him and no one else, and the dispute must be decided. So the doctrine of necessity permits him to decide, and the safeguards become correspondingly important: he must disclose his position, hear both sides fully, and record reasons, because those are the only protections the parties now have.
Contrast a case where the Act allows the Chancellor to nominate a person to decide such disputes. Then there is no necessity, and J. Mohapatra applies.
Distinctions that carry marks
| Necessity | Convenience | |
|---|---|---|
| Test | No other competent authority exists | Another authority exists but is inconvenient |
| Effect | The disqualification is excused | The disqualification stands |
| Authority | The general doctrine | J. Mohapatra, refusing the plea |
What this does NOT mean
It does not mean bias becomes lawful. It means the decision is not set aside on that ground alone.
It does not excuse the other requirements of fairness. Notice, hearing, disclosure and reasons remain.
It does not apply where the statute provides a substitute. Many Acts do, precisely to avoid the problem.
Quick revision
Necessity permits a disqualified adjudicator to act where he is the only one competent and the matter must be decided. Conditions: no other authority, a real need for a decision, a genuine necessity rather than convenience, and full compliance with every other requirement of fairness. J. Mohapatra fixes the limit: where an unbiased body could have been constituted, the doctrine does not apply. Typical situations are a single statutory authority, a quorum that cannot be made otherwise, and a matter affecting every possible adjudicator.
Test yourself
1. State the two conditions in one sentence. That there is no other authority competent to decide, and that the matter must be decided rather than left.
2. Why did the plea of necessity fail in J. Mohapatra? Because many qualified persons in the State were not authors of books under consideration, so an unbiased committee could have been constituted.
3. Does necessity excuse a failure to give a hearing? No. It excuses only the disqualification; notice, hearing, disclosure and reasons are still required, and become more important because they are the only remaining protection.
The rest of this subject
These notes are cut from the University's printed syllabus. Open the syllabus itself, or the past papers, for the same subject.