RULE OF BIAS & DOCTRINE OF NECESSITY: CASE STUDY

Amar Nath Chowdhary v. Braithwaite & Co. Ltd.

SUBJECT: ADMINISTRATIVE LAW

NATIONAL LAW UNIVERSITY, JODHPUR
(JULY-NOVEMBER 2018)

SUBMITTED BY: SUBMITTED TO:

YASH J OSHI (1492) PROF. I.P. MASSEY
PARAS MARYA FACULTY OF LAW
B.A. L.LB (HONS.)
NLU J ODHPUR
SEMESTER V
 ACKNOWLEDGMENT

We take this opportunity to express our gratitude and personal regards to Prof. I.P. Massey for
inspiring and guiding us during the course of project work.
We also owe a sincere thanks to the library staff of National Law University, Jodhpur for the
cooperation and facilities extended from time to time during the progress of our project work.

2
 ABSTRACT

The ‘Rule against Bias’, is an essential component of modern administrative law. Over the years,

the Courts have dealt with this concept and evolved it extensively. This paper traces the

evolution of the rule along with the prevalent test for bias in India – ‘reasonable likelihood of

bias’. This paper focusses on the interpretation provided by the Indian judiciary of the rule

against bias and its application of the test of reasonable likelihood of bias. The paper then

discusses the final position in India regarding this rule along with the exception provided by the

doctrine of necessity.

3
 TABLE OF CONTENTS

ACKNOWLEDGMENT................................................................................................................. 2
I. Introduction ............................................................................................................................. 5
II. Factual Analysis of Amar Nath Chowdhary case ................................................................. 10
A. Facts of the case: ............................................................................................................ 10
B. Issue before the Supreme Court: .................................................................................... 11
C. Contentions of the parties: ............................................................................................. 11
D. Decision of the Court: .................................................................................................... 11
E. Reasoning furthered by the Court in support of the decision:........................................ 12
III. The development of the Rule of Bias through case law analysis ...................................... 15
A. Rule of Bias .................................................................................................................... 15
i) Judicial position prior to Amar Nath Chowdhary decision ............................................ 16
ii) Judicial developments subsequent to 2002 Amar Nath Chowdhary decision ............ 19
B. Doctrine of Necessity ..................................................................................................... 22
IV. Conclusion ......................................................................................................................... 30
V. Bibliography ......................................................................................................................... 34

4
 I. INTRODUCTION

In the case of Amar Nath Chowdhary v. Braithwaite & Co. Ltd. The Supreme Court grappled

with the essential principle of natural justice, the rule against bias, coupled with an exception to

it, the doctrine of necessity.

“Nemo judex in causa sua, that is, no man shall be a judge in his own cuase, is a

principle firmly established in law. Justice should not only be done but should manifestly

be seen to be done. It is on this principle that the proceedings in Courts of Law are open

to the public except in those cases where for special reason the law requires or authorises

a hearing in camera. Justice can never be seen to be done if a man acts as a judge in his

own cause or is himself interested in its outcome.”1

H.W.R. Wade has noted that “natural justice is a well defined concept which comprises two

fundamental rules of fair procedure that a man may not be a judge in his own case and a man’s

defence must always be fairly heard.”2 The principle of nemo debt esse judex in propria causa or

the rule against bias has been regarded as the “the first and foremost principle of natural justice”3

and eventually an integral part of the administrative jurisprudence of the country. It is the

minimal requirement of natural justice that the authority giving decision must be composed of

impartial persons acting fairly, without prejudice and bias.4 While these principles of natural

1
J. Mohapatra and Co. v. State of Orissa, AIR 1984 SC 1572
2
Henry William Rawson Wade & C.F. Forsyth, Administrative Law, OUP, 2009 pg. 466
3
Report of the Committee on Ministers’ Powers
4
MP Jain & SN Jain: Principles of Administrative Law, 7th Edition, 2013.

5
justice are not enforceable the way that fundamental rights are, they provide a strong safeguard

against arbitrary action affecting the rights of an individual.5 These principles of natural justice

are treated as part and parcel of the Constitutional guarantee provided for in Article (hereinafter

Art.) 14 and the violation of these principles by the concerned authorities is taken as violation of

Art. 14.

Earlier, these principles were applicable only to the judicial sphere but their scope was expanded

gradually to include quasi-judicial as well as administrative proceedings, which was observed in

the landmark case of Ridge v. Baldwin.6 This was confirmed in the Indian setting in Mohinder

Singh Gill v. Chief Election Commissioner7 which obliterated the distinction between quasi-

judicial and administrative functions in so far as a duty to hear, and hear impartially was

attracted and had civil consequences. The Supreme Courts has observed that the extent and

application of the doctrine of natural justice depends upon the nature of the jurisdiction conferred

on the administrative authority, upon the character of the rights of the persons affected, the

scheme and policy of the statute and other relevant circumstances disclosed in the particular

case.8

The doctrine “no man can be a judge in his own cause” can be applied only to cases where the

person concerned has a personal interest or has himself already done some act or taken a decision

in the matter concerned.9 Bias may be defined as a preconceived opinion or a predisposition or

5
A.K. Kraipak v. Union of India A.I.R. 1970 S.C. 150.
6
Ridge v. Baldwin (1964) A.C. 49
7
A.I.R. 1978 S.C. 851
8
Union of India v. P.K. Roy A.I.R. (1968) S.C. 850
9
MP Jain & SN Jain: Principles of Administrative Law, 7th Edition, 2013.

6
predetermination to decide a case or an issue in a particular manner, so much so that such

predisposition does not leave the mind open to conviction.10 If the Judge is subject to bias in

favour of or against either party to the dispute or is in a position that a bias can be assumed, he is

disqualified to act as a Judge, and the proceedings will be vitiated. This rule applies to the

judicial and administrative authorities required to act judicially or quasi-judicially.11

Bias is usually of pecuniary12, personal13, departmental/policy nature14 and additionally can take

the form of judicial obstinacy

Courts have applied different standards and tests in adjudicating upon the ostensible bias

displayed by a party. The initial standard was to adduce cogent evidence in support of an

allegation of bias15 as well as the resultant miscarriage of justice. 16 However, this test has

evolved and given way to a more contemporary understanding, i.e., a test of “reasonable

likelihood.” The Indian Courts, in this respect have adopted almost the same outlook as English

Courts. In S. Parthasarathi v. State of Andhra Pradesh, the Supreme Court relying on

10
State of W.B. v. Shivananda Pathak, (1998) 5 SCC 513, 524 (para 25); S.P. Kapoor (Dr) v. State of H.P. AIR

1981 SC 2181; Mineral Development Ltd. v. State of Bihar, AIR 1960 SC 468; Financial Commr. (Taxation),

Punjab v. Harbhajan Singh AIR 1996 SC 3287

11
Justice P.D. Dinakaran v. Hon’ble Judges Inquiry Committee and Ors. A.I.R. 2011 S.C. 3711
12
Jeejeebhoy v. Assistant Collector, Thana, AIR 1965 SC 1096; Gullapalli Nageswara Rao v. State of Andhra

Pradesh, AIR 1959 SC 1376

13
Meenglas Tea Estate v. Workmen, AIR 1963 SC 1719; Ramjag Singh v. State of Bihar, AIR 1958 Pat 7
14
Franklin v. Minister of Town and Country Planning, (1948) AC 87.
15
State of Rajasthan v. Ram Chandra, AIR 2005 SC 2221
16
Abraham Kuruvila v. S.C.T. Institute of Medical Sciences & Technology, (2005) 9 SCC 49 ¶6

7
Metropolitan Properties Co (F.G.C.) Ltd. v. Lannon17 held- “If right-minded persons would

think that there is real likelihood of bias on the part of an inquiring officer, he must not conduct

the inquiry; nevertheless, there must be a real likelihood of bias. Surmise or conjecture would not

be enough. There must exist circumstances from which reasonable men would think it probable

or likely that the inquiring officer will be prejudiced against the delinquent. The Court will not

inquire whether he was really prejudiced.” 18 Therefore, the test that the Courts have applied in

recent decisions19 has been that of reasonable likelihood.

Given the importance of the rule against bias, it has to be followed in all situations. However, the

Supreme Court room for one particular exception to this rule and that is the Doctrine of

Necessity.20 This doctrine was used for the first time in 1954 in Pakistan to legitimize the

extrajudicial use of power by the incumbent Governor General, Ghulam Mohammed.

Subsequently, the Commonwealth applied it and so did Nigeria is justifying the otherwise

illegitimate or unconstitutional actions of the government.21

The Supreme Court of India however, has sounded a slightly different note. In the case of State

of U.P. v. Sheo Shanker Lal Srivastava held that “there are many cases where no substitution is

possible, since no one else is empowered to act. Natural justice then has to give way to necessity;

17
Citation and paragraph number - WLR at p. 707
18
Citation and paragraph number
19
Rattan Lal Sharma v. Managing Committee Dr. Hari Ram (Co-Education) Higher Secondary School (1993) 4

SCC 10; State of Punjab v. V.K. Khanna, AIR 2001 SC 343

20
AIR 1984 SC 1572
21
Wolf-Phillips, Leslie. "Constitutional Legitimacy: A Study of the Doctrine of Necessity." Third World Quarterly,

Vol. 1, No. 4, pg. 99.

8
for otherwise there is no means of deciding and the machinery of justice or administration will

break down.”22 The doctrine of necessity is attracted if there is a statutory rule to that effect or if

it is impossible or impracticable to find a substitute for the person against whom bias is alleged.

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 therefrom.23

The following project aims at tracing the contours of the rule against bias and its only acceptable

exception by examining them first through the assigned case law of Amar Nath Chowdhary and

subsequently through historical application and judicial developments in the area.

22
AIR 2006 SC 3548
23
M.P. Jain, Principles of Administrative Law, 6th ed.

9
 II. FACTUAL ANALYSIS OF AMAR NATH CHOWDHARY CASE

A. FACTS OF THE CASE:

The appellant, Mr. Amar Nath Chowdhary, was an employee of Braithwaite and Company

Limited (hereinafter the Company) in Calcutta. However, certain grounds of misconduct were

alleged against the appellant and an Inquiry Committee (hereinafter the Committee) was

constituted to carry out disciplinary proceedings and find merit in the allegations. The committee

submitted its report to the Disciplinary Authority which was the incumbent Chairman cum

Managing Director of the Company, Shri S. Krishnaswami (hereinafter the Chairman). The

Chairman accepted the submission of the Committee and the appellant was removed from

service vide an order dated 31/02/84.

The appellant preferred and appeal against the order which, as per the regulations framed by the

Company, lay before the Board of Directors (hereinafter the Board). Through a non-speaking

order dated 31/8/84, the Board dismissed the appeal. However, it is pertinent to note that the

Chairman, who had previously acted in the capacity of the Disciplinary Authority, took an active

part in the deliberations of the Board.

Subsequently, the appellant filed an appeal under Article 226 before the Calcutta High Court

(hereinafter HC) and a Learned Single Judge, having found a defect in the proceedings of

dismissal against the appellant, quashed the order of his removal. Following this, the Company

appeared before the Division Bench of the Calcutta High Court in an appeal wherein the Court

set aside the order of the Single Judge and thus dismissed the writ petition of the appellant

10
altogether. It was from this order of the Division Bench that he appellant filed a Special Leave

Petition before the Supreme Court of India (hereinafter SC).

B. ISSUE BEFORE THE SUPREME COURT:

Whether the proceedings of the Board were vitiated on account of participation of the

Disciplinary Authority while deciding the appeal preferred by the appellant24

C. CONTENTIONS OF THE PARTIES:

i. Appellant- The appellant relied on the principle of “debt esse judex in propria causa”

and submitted that the Chairman of the Compnay was disqualified from presiding over or

participating in the deliberations of the appellate authority because he has initially acted

in the capacity of the Disciplinary Authority. Therefore, the order of the Board, which

dismissed the appeal of the appellant, was vitiated on the ground of legal bias.

ii. Respondent- The Respondent sought to invoke the “Doctrine of Necessity” to further

their contention. It was submitted that the appellant could not claim the rule against bias

when the Regulations of the Company specifically provided for the Chairman to preside

over the meeting of the Board. Thus, the Disciplinary Authority, i.e. the Chairman, was

not disqualified to preside and participate in the deliberations of the Appellate Authority.

D. DECISION OF THE COURT:

The Court rejected the contention of the Respondent while it found merit in the claim of the

Appellant. In respect of this, the Court decreed the following-

24
AIR 2002 SC 678, ¶5

11
 “…we find that the appeal deserves to succeed. Accordingly, the order and judgment

under challenge as well as the order passed by the Appellate Authority are set aside and

the matter is sent back to the Appellate Authority to decide the appeal by a speaking

order, in accordance with law. Before we part with the case, we further direct that the

Company shall not take any step to realise any money which has been paid to the

appellant on his superannuation till the matter is finally decided by the appropriate

Appellate Authority.”25

E. REASONING FURTHERED BY THE COURT IN SUPPORT OF THE DECISION:

i. Reasoning for accepting appellant’s contention- As explained above, one of the

principle tenets of natural justice is the rule against bias which precludes an

adjudicating authority with a bias of any nature, whether personal or pecuniary, from

deciding upon a matter. This principle, which has its roots in Debt Esse Judex in

Propria Causa, seeks to ensure that justice is done manifestly. The SC in the present

case relied on the decision made in Financial Commissioner (Taxation) Punjab and

Ors. v. Harbhajan Singh.26 The SC in its Harbhajan Singh found that the Settlement

Officer has no jurisdiction to sit over the order passed by him as an Appellate

Authority.27

Presently, neither party had denied that the Chairman had served the dual function of

the Disciplinary Authority, and the presiding officer and participant of the Appellate

25
AIR 2002 SC 678, ¶9
26
AIR 1996 SC 3287
27
AIR 1996 SC 3287 ¶2

12
 authority Board. Such dual functions were clearly not in consonance with the settled

position of law or the rule against bias. The Court found that such discharge of

functions was only permissible when there was an “act of legislation or statutory

provision” to that effect.28 The authority that has already made a decision cannot be

allowed to revise his decision in an appeal because he prejudices the matter. The

Court compared this sort of exercise as an “an appeal from Caesar to Caesar”29 and

termed it futile. In light of these considerations, the Court accepted the appellant’s

argument and found that the Chairman should not have acted as the appellate body

after having decided the matter himself initially.

ii. Reasoning for rejecting the respondent’s contention- The Respondent sought to avail

the exception of the Doctrine of Necessity which the Court explicitly rejected. The

SC looked at the definition of ‘Board’ in Rule 3(d) of the Company’s Conduct,

Discipline and Appeal Rules which read as follows-

“Board means the properties of the Company and includes, in relation to exercise of

powers, any committee of the Board/Management or any Officer of the Company to

whom the Board delegates any of its powers”30

However, the SC concluded that the “Board” could have included any officer of the

company to the exclusion of the Chairman and thus, power could have been

appositely delegated to such officer who could have acted as part a functionary of the

28
AIR 2002 SC 678, ¶ 6
29
AIR 2002 SC 678, ¶ 6
30
AIR 2002 SC 678, ¶ 7

13
 appellate authority to eliminate any form of bias.31 Thus, the court did not entertain

the doctrine of necessity as an exclusionary ground in the case at hand.

31
AIR 2002 SC 678, ¶ 8

14
 III. THE DEVELOPMENT OF THE RULE OF BIAS THROUGH CASE LAW ANALYSIS

The essence of this rule is to ensure impartiality in decision making. Without impartiality, public

confidence cannot be maintained in the legal system. A lack of impartiality would result in loss

of nobility of the legal system and would ensure chaos.

The case of Amar Nath Chowdhary was neither unique, nor extraordinary in the sense that it did

not lay down any new legal tenets. The SC only strengthened a previously established legal

position and therefore allowed subsequent cases to draw inspiration from Amar Nath

Chowdhary. The purpose of this section is to provide a better and more comprehensive

understanding of how the Supreme Court as well as the various High Courts have previously

dealt with the rule of bias and after the judgment in the Amar Nath Chowdhary case, how it has

influenced decisions as recently as 2017. This section, therefore, is divided in two parts. The first

seeks to examine the rule of bias and the development of jurisprudence pertaining to it, while the

second part deals with the doctrine of necessity and its applicability as an exclusionary ground of

bias.

A. RULE OF BIAS

For the sake of convenience, there is a binary division in this part on the basis of cases dealt with

prior to and subsequent to the Amar Nath decision.

15
 i) Judicial position prior to Amar Nath Chowdhary decision

We can examine first the decision rendered by the Honourable Supreme Court in A.K. Kraipak &

Ors. v. Union of India & Ors32. This particular instant is a landmark decision on the question of

rule against bias affecting the process of selection wherein what happened that one Naquishbund

the Acting Chief Conservator of Forests, Jammu and Kashmir was a member of selection Board

constituted for selecting officers to the Indian Forest Service from those serving in the Forest

Department of Jammu and Kahsmir, Naquishband who was a member of selection Board was

also one of the candidate for selection to the Indian forest Service. He did not sit on the selection

Board at the time when his name was considered but he did sit on the selection Board and

participated in the deliberations of selection Board while preparing a list of selected candidate in

order of preference.33

Hon'ble Apex Court held that his presence vitiated the selection on the ground that there was

reasonable likelihood of bias affecting the process of selection. In the aforesaid case the Hon'ble

Apex Court emphasised that it was not necessary to establish bias but it was sufficient to

invalidate the selection process if it could be shown that there was reasonable likelihood of bias.

Likelihood of bias arises on account of proprietary interest or on account of personal reasons

such as hostility, friendship or family relationship with others.34 This case is fountain of rule

against bias affecting the process of selection and has contributed a lot in development of

Administrative law.

32
AIR 1970 SC 150
33
AIR 1970 SC 150 ¶¶ 1-10
34
AIR 1970 SC 150 ¶ 15.

16
Secondly, we can refer to one of the earliest decisions in this respect was given by the Supreme

Court in the year 1959 in the case of Mineral Development Ltd. V. State of Bihar & Anr.35 The

Revenue Minister in the matter had cancelled the lease of the petitioner over a certain piece of

land against which the petitioner moved the Court. The Court found that the Minister could not

have participated in the license cancellation discussion since the political rivalry between him

and the petitioner had given rise to personal bias on his behalf.36 Therefore, the decision of the

Minister was vitiated because of personal bias which violated the principles of natural justice and

fairness.

This decision however, did not become the hallmark in respect of the rule against bias because it

did not deal with said rule either primarily or in detail. This principle was later applied in cases

concerning labour laws and service laws except where cases were covered by the doctrine of

necessity. The case which received immense attention for its decision in this respect was also the

case that was relied upon in Amar Nath Chowdhary, Financial Commissioner (Taxation), Punjab

v. Harbhajan Singh.

In the case of Harbhjan Singh, the Settlement Officer, Mr. J.S. Quami, had granted assignment

of 7 kanals and 15 marlas to the Respondent in 1969. However, on finding that the mutation had

been obtained through fraudulent acts, the same Settlement Officer acting as the Chief

Settlement Officer set aside his previous order.37 The Court relied on the “settled legal position”

laid down in Gulab Ajwani & Ors. v. Saraswati Bai38and found that the proceedings had been

35
AIR 1960 SC 468
36
AIR 1960 SC 468 ¶ 18
37
Harbhajan Singh JT 1996 (4) ¶1
38
(1977) 3 SCC 581

17
vitiated by an error of law since the Settlement Officer had no jurisdiction to sit over the same

order as appellate authority as Chief Settlement Commissioner.39 While the SC in its Amar Nath

Chowdhary decision relied primarily on this judgment, there were a few more pertinent cases

that solidified the position of the Court before its 2002 decision.

An excellent example of this was found in 1997 in the case of State of West Bengal & Ors. v.

Shivananda Pathak & Ors.40 The Court acknowledged the various kinds of bias such as

pecuniary bias, personal bias, bias as to subject matter in dispute, or policy bias but admittedly

dealt with a matter of bias stemming from judicial obstinacy.41

The facts of this case were rather peculiar. Six Assistant Computers of the West Bengal Labour

Subordinate (hereinafter Respondents) service filed a writ petition in 1984 in the Calcutta HC

claiming that they had been wrongfully deprived of a promotion that they were entitled to under

the Rules made pursuant to Art. 309.42 An order was passed by Single Judge Ajit Kumar

Sengupta to the effect that the Respondents must be promoted but this decision was subsequently

modified by a Division Bench of the same Court in an appeal. 43 Two years later, the same set of

respondents filed a separate writ petition demanding arrears of salary from the year 1980 in

pursuance of the order passed by Judge Sengupta. An appeal from a single judge lay to a division

bench, incidentally comprising of Judge Sengupta and Judge Shyamal Kumar Sen.

39
Harbhajan Singh JT 1996 (4) ¶¶ 1-3
40
AIR 1998 SC 2050
41
AIR 1998 SC 2050 ¶ 26.
42
AIR 1998 SC 2050 ¶¶ 4-7
43
AIR 1998 SC 2050 ¶¶ 8-12

18
Before the Supreme Court, the State of West Bengal argued that justice Ajit Kumar Sengupta

having expressed his views when he had decided, as a Single-Judge, the first Writ Petition,

should not have sat in the Division Bench to hear the appeal in the same matter between the same

parties though initiated on a subsequent Writ Petition.44 The Court held that “if a judgment is

over-ruled by the higher court, the judicial discipline required that the Judge whose judgment is

over-ruled must submit to that judgment. He cannot, in the same proceedings or in collateral

proceedings between the same parties, re-write the over-ruled judgment.”45 Thus, the SC set

aside the order of the Division bench for they found that it was inappropriate for Justice

Sengupta to preside over a matter on which he had already expressed his opinion as that allowed

for bias owing to judicial obstinacy.

ii) Judicial developments subsequent to 2002 Amar Nath Chowdhary decision

The Supreme Court had the opportunity to revisit the Amar Nath Chowdhary decision in the case

of Brij Bihari Singh v. Bihar State Financial Corporation and Ors.46 The Appellant, who was

employed as the Assistant General Manager in the Bihar State Financial Corp, was put under

suspension on the basis of a number of charges for which disciplinary proceedings were initiated.

One officer of the State Government on deputation was made Enquiry Officer, who conducted

the enquiry in respect of the charges and submitted enquiry report holding that the majority of

the charges have been proved. Show cause notice was given to the Appellant which was duly

responded. The Appellant was then directed to be personally present for hearing and then the

44
AIR 1998 SC 2050 ¶ 16.
45
AIR 1998 SC 2050 ¶ 28
46
2016 1 AWC 666 SC

19
Managing Director, instead of passing final order, recommended the Board of Directors of the

Corporation for the punishment to be imposed upon the Appellant. On receipt of the said

recommendation, the Board finally passed an order of dismissal of the Appellant from service.

The Appellant assailed the order of dismissal by filing a writ petition, which was eventually

dismissed by the learned Single Judge of the High Court. The said judgment was finally upheld

by the Division Bench of the High Court in Letters Patent Appeal which ultimately came before

the SC.47 After giving due consideration to the matter, the Court found that the procedure

adopted by the Respondents in dismissing the Appellant was erroneous and suffered from bias.

Therefore, the order was terminated since the proceedings themselves stood vitiated.48

In Dr. Virendra Kumar Sharma & Dr. Hari Shankar v. State of Uttar Pradesh through Principal

Secretary Medical and Health & Ors.49 the Allahabad HC dealt with the principles of bias as

they would appear in quasi-judicial proceedings. The facts were that an advertisement was

published in a newspaper inviting applications for the post of Ayurvedic and Unnani Medical

Officer on a contractual basis for the Primary Health Centre in Rampur district and a certain

reservation category was introduced for Schedule Caste candidates. Pursuant to the government

order issues to that effect, a selection committee was by the District Magistrate. However, the

committee was composed of three officers in addition to the Respondent no. 4, father of a

candidate and Respondent no. 5, who acted in the capacity of Member Secretary.50 The Court

47
2016 1 AWC 666 SC ¶¶ 1-6
48
2016 1 AWC 666 SC ¶ 16
49
2006 6 AWC6263All
50
2006 6 AWC6263All ¶¶ 1-2

20
held that Respondent no. 4 should have withdrawn from the selection and hence the doctrine

against bias was attracted and the selection was vitiated on that behalf.51

51
2006 6 AWC6263All ¶¶ 15-16

21
 B. 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.

An adjudicator who is subject to disqualification on account of bias may nevertheless, can

validly adjudicate if:

22
 1. No other person competent to adjudicate is available;

2. A quorum cannot 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

23
of the Speaker in impeachment proceedings and the action of the Chief Election Commissioner

in election matters.

JUDICIAL DECISIONS

In Gullapali Nageshwar Rao v State of Andhra Pradesh52, as a consequence of Gullapali 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 Ministry. 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 cannot be regarded as a disqualifying

bias”. In J. Mahopatra and Co. v State of Orrisa53 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

52
1959 AIR 1376
53
1984 AIR 1572

24
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. Ratna54 the court held that in absence of statutory

compulsion the principles of necessity does not apply. In Ashok Kumar Yadav v State of

Haryana55, 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

54
AIR (1987) SC 71
55
1987 AIR 454

25
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.56

In Tata Cellular v Union of India,57 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 this 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.58

In some case, the doctrine of necessity may be invoked to exclude the application of rule against

bias. In Mary Teresa Dias v. Hon’ble Acting Chief Justice,59 the recommendation of person to be

appointed as district judge was involved. The Kerala High Court observed that when the

56
1984 AIR 873
57
1996 AIR 11
58
1996 AIR 1810
59
AIR (1985) Ker. 245

26
recommendations made by the High Court are challenged before the same Court, the judge of the

court are bound to hear the petition ex-necessitatae, a region where principle of natural justice

have to yield.

But the decision of the Supreme Court in Election Commission of India v. Dr, Subramaniam

Swamy60 shows that even in the cases of necessity, farness should be observed to the extent

possible. In this case, Dr. Subramaniam Swamy preferred a petition under article 192 of the

constitution of India, alleging that Jayalalithaa, the then Chief Minister of Tamil Nadu, had

incurred a disqualification of being a member of the Legislative Assembly. According to Article

192(2), the Governor “shall obtain the opinion of the Election Commission and shall act

according to such opinion”. Jayalalitha alleged that she had reasonable apprehension that

T.N.Seshan, the Chief Election Commissioner was biased in favour of the petitioner Dr. Swamy,

the Court having regard to the close and intimate relationship between Dr. Swamy and Sheshan

and also the fact that the former’s wife was the latter’s lawyer in the law suit, said that the

apprehension in the mind of Jayalalithaa could not be said to be misplaced. It was therefore, held

that the proper course for the CEC would be to call a meeting of the Election Commission and

then withdraw from the decision making process, leaving it to two other members to decide the

question. However, in case of disagreement between the members, the doctrine of necessity will

be attracted compelling the CEC to render his opinion so as to communicate the majority view to

the Governor.

60
1996 AIR 1810

27
Similarly in Badrinath v. Govt. of Tamil Nadu61 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 anybody 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

61
1987 AIR 2381

28
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”.

29
 IV. CONCLUSION

In light of the above, it can be found that in the case of Amar Nath Chowdhary, the Court

quashed an administrative action on account of proceedings that were vitiated by bias. While it

was not a pioneering case which led to a spurt in the judicial development in respect of the

principles of natural justice, it did solidify the position of the Indian judiciary and found

application in cases as recent as February, 2017.

In 2016, the Delhi High Court applied the rule against bias in the matter of A.K.S. Rathore v.

Union of India & Ors.62 The petitioner had certain charges levied against him of which some

were confirmed by the Disciplinary authority, the Chairman-cum-Managing Director of the

National Small Industries Corporation Limited. An order of compulsory retirement was passed

which was later upheld by the Board of Directors who acted as the appellate authority. 63 An

appeal was made to the Central Administrative Tribunal which quashed the order of the BoD

since that appeal was ex facie violative of the petitioner’s rights of natural justice.64

The Court noted that the Chairman-cum-Managing Director, who was the assigned Disciplinary

Authority, was also a member of the BOD and thus a part of the Appellate Authority. The

participation of the Disciplinary Authority in the appeal was against the principles of natural

justice and to come to this conclusion, the Court relied on the Amar Nath Chowdhary decision

62
2016 VIAD (Delhi) 469
63
2016 VIAD (Delhi) 469, ¶¶ 1-4
64
2016 VIAD (Delhi) 469, ¶¶ 6-12

30
along with Surjit Ghosh v. Chairman and Managing Director, United Commercial Bank65, and

Balbir Chand v. Food Corporation of India Ltd. and Ors.66

A similar pronouncement was made by the Punjab and Haryana HC in its 2017 decision of

Major Singh Sandhu v. State of Punjab & Ors.67 The HC, while ruling on a matter concerning

personal bias, drew guidance from the Amar Nath Chowdhary decision. Besides these few recent

decisions, High Courts have steadily adopted this stance from the 2002 decision over the past

decade and a half. The Madhya Pradesh HC in Parth Rasayan Pvt. Ltd. v. State Appellate Forum

& Ors.68, the Bombay HC in Nahidabano v. Divisional Commissioner, Aurangabad Division &

Ors.,69 the Guhawti HC in Lokho Mao v. State of Manipur & Ors.,70 the Punjab HC itself in

previous decisions such as Ved Prakash Gupta v. Haryana State Federation of Consumers Co-

operative Wholesale Stores Ltd. & Anr.71 The general trend that can be observed from all of the

above instances is that when a reasonable likelihood of bias is established, proceedings that do

not adhere to principles of natural justice have been swiftly quashed. In other words, 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.72

65
AIR 1995 SC 1053
66
AIR 1997 SC 2229
67
MANU/PH/0035/2017
68
2005 (1) MPLJ 506
69
2013 (6) ABR 487
70
2011 (2) GLT 131
71
(2009) 153 PLR 277
72
Takwani C.K, Lectures on Administrative Law; 4th ed., EBC, 2011.

31
While the Subramaniam Swamy decision of 1996 laid down stringent guidelines and expressly

mentioned situations in which the ‘Doctrine of Necessity’ can be applied, in various other

decisions, Courts have highlighted different aspects of the same doctrine. In J. Mohapatra and

Co. v State of Orissa73 the Supreme Court out rightly rejected the contention of doctrine of

necessity on the basis that though members of the Assessment subcommittee were appointed by

virtue of their official positions, they were holding positions in the Education Department of the

Government of Orissa and the director higher education etc. The SC relied on the judgment of

the Court of Appeal in Judges v. Attorney-General for Saskatchewan74 to conclude that the

doctrine of necessity applies not only to judicial matters but also to quasi-judicial and

administrative matters.75

In Institute of Chartered Accountants of India v. L.K. Ratna, the Supreme Court found that

statutory provisions to that end may exclude the rule against bias; however, in the absence of the

same, the doctrine will not apply.76 This was further echoed in, inter alia, Badrinath v.

Government of Tamil Nadu & Ors. where the SC noted that when a statute or statutory rule

expressly makes allowance, “then the law makes an exception in the situation and the said person

is entitled to take a decision notwithstanding his disqualification.”77 Therefore, in applying the

Doctrine, the Courts have to be careful in balancing the allegedly biased actions against the

73
AIR 1984 SC 1572
74
[1937] 2 DLR 209
75
AIR 1984 SC 1572 ¶13
76
AIR 1987 SC 71 ¶26
77
AIR 2000 SC 3243 ¶79

32
functions of the body. If the choice is reduced to crippling or impeding the administrative system

or allowing an ostensibly biased action to prevail, the Courts have chosen the latter.

Therefore, Indian Courts have stayed true to their commitment to securing rights conferred upon

individuals and ensuring that justice is ‘manifestly done’, the process remaining more or less

similar to that of the English and Commonwealth Courts. Prof. I.P. Massey has noted that,

“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.”78

78
Massey I.P, Administrative Law; 7th ed. EBC, 2008

33
 V. BIBLIOGRAPHY

Books and Journals

1) Henry William Rawson Wade & C.F. Forsyth, Administrative Law, OUP.

2) MP Jain & SN Jain: Principles of Administrative Law, 7th Edition, 2013.

3) S.P. Sathe, Administrative Law, Lexis Nexis, 2004.

4) Massey I.P, Administrative Law, 7th ed. EBC, 2008.

5) Takwani C.K, Lectures on Administrative Law, 4th ed., EBC, 2011.

6) Wolf-Phillips, Leslie. "Constitutional Legitimacy: A Study of the Doctrine of

Necessity." Third World Quarterly, Vol. 1, No. 4, 1979.

7) Neil Prapworth, Constitutional and Administrative Law ,(Butterworth’s publication,

2000).

8) B. Schwartz, Administrative Law, 4th edition,(Little Brown and co., 1994)

9) Basu Durga Das, Administrative Law, 6th ed.; Kamal Law House, Kolkatta, 2005.

10) De Smith’s Judicial Review of Administrative Action; 6th ed.; Sweet & Maxwell, 2007.

11) Jain M.P, Indian Administrative Law: Cases and Materials; Vol. I.1994; Wadhwa and

Company Nagpur, 1994, 1996.

12) Jain M.P, Treatise on Administrative Law; 1996 ed.; Wadhwa and Company Nagpur,

1996.

13) Pandey T.N, “Rule of Natural Justice in the Administration of Law”, Vol. 131, Taxman,

2003.

34
Cases

1. A.K. Kraipak & Ors. v. Union of India & Ors AIR 1970 SC 150

2. A.K.S. Rathore v. Union of India & Ors. 2016 VIAD (Delhi) 469

3. Abraham Kuruvila v. S.C.T. Institute of Medical Sciences & Technology, (2005) 9 SCC

49

4. Amar Nath Chowdhary v. Braithwaite and Company Ltd & Ors. AIR 2002 SC 678

5. Ashok Kumar Yadav v. State of Haryana AIR 1987 SC 454

6. Badrinath v. Government of Tamil Nadu & Ors. AIR 2000 SC 3243

7. Balbir Chand v. Food Corporation of India Ltd. and Ors. AIR 1997 SC 2229

8. Brij Bihari Singh v. Bihar State Financial Corporation and Ors. 2016 1 AWC 666 SC

9. Dr. Virendra Kumar Sharma & Dr. Hari Shankar v. State of Uttar Pradesh through

Principal Secretary Medical and Health & Ors. 2006 6 AWC6263All

10. Election Commission of India v. Dr. Subramaniam Swamy AIR 1996 SC 1810

11. Financial Commissioner. (Taxation), Punjab v. Harbhajan Singh AIR 1996 SC 3287

12. Gulab Ajwani & Ors. v. Saraswati Bai (1977) 3 SCC 581

13. Gullapalli Nageswara Rao v. State of Andhra Pradesh AIR 1959 SC 308

14. Institute of Chartered Accountants of India v. L.K. Ratna AIR 1987 SC 71

15. J. Mohapatra and Co. v State of Orissa AIR 1984 SC 1572

16. Javid Rasool Bhat v. State of Jammu and Kashmir AIR 1984 SC 873

17. Jeejeebhoy v. Assistant Collector, Thana, AIR 1965 SC 1096

18. Judges v. Attorney-General for Saskatchewan [1937] 2 DLR 209

19. Justice P.D. Dinakaran v. Hon’ble Judges Inquiry Committee and Ors. A.I.R. 2011 S.C.

3711

35
20. Lokho Mao v. State of Manipur & Ors., 2011 (2) GLT 131

21. Major Singh Sandhu v. State of Punjab & Ors.

22. Meenglas Tea Estate v. Workmen, AIR 1963 SC 1719

23. Mineral Development Ltd. v. State of Bihar, AIR 1960 SC 468

24. Mohinder Singh Gill v. Chief Election Commissioner A.I.R. 1978 S.C. 851

25. Nahidabano v. Divisional Commissioner, Aurangabad Division & Ors., 2013 (6) ABR

487

26. Parth Rasayan Pvt. Ltd. v. State Appellate Forum & Ors., 2005 (1) MPLJ 506

27. Ramjag Singh v. State of Bihar, AIR 1958 Pat 7

28. Rattan Lal Sharma v. Managing Committee Dr. Hari Ram (Co-Education) Higher

Secondary School (1993) 4 SCC 10

29. Ridge v. Baldwin (1964) A.C. 49

30. S. Parthasarathi v. State of Andhra Pradesh

31. S.P. Kapoor (Dr) v. State of H.P. AIR 1981 SC 2181

32. State of Punjab v. V.K. Khanna, AIR 2001 SC 343

33. State of Rajasthan v. Ram Chandra, AIR 2005 SC 2221

34. State of U.P. v. Sheo Shanker Lal Srivastava, AIR 2006 SC 3548

35. State of West Bengal v. Shivananda Pathak, AIR 1998 SC 2050

36. Surjit Ghosh v. Chairman and Managing Director, United Commercial Bank AIR 1995

SC 1053

37. Union of India v. P.K. Roy A.I.R. (1968) S.C. 850

38. Ved Prakash Gupta v. Haryana State Federation of Consumers Co-operative Wholesale

Stores Ltd. & Anr., (2009) 153 PLR 277

36
Other References

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.

37