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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.
Judicial Decisions
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 routes 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 byArticle 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 sons 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--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 Chairmancum-Managing Director. The "Doctrine of Necessity" is held not applicable.
Conclusion
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.

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