EXCEPTION TO BIAS

The first principle of Natural Justice is ‘nemo judex in causa sua’, which means no man
shall be a judge in his own cause, or in other words, the deciding authority must be impartial
and without bias.1 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. 2 The strictness of
the principle along with common sense is such that, even if there is no bias in real, the rule is
applied to such instances where there is the slightest possibility of bias i.e. “Justice must not
only be done, but must be seen to be done.” 3 To uphold the majesty of rule of law and to
ensure that the procedure established by law is followed, this principle is of utmost
importance.4

The doctrine of necessity is an exception to the principle of non-biasness. 5 This doctrine

makes it crucial for the adjudicating authority to decide in order to uphold the judicial
appropriateness in such unavoidable situations. The doctrine of necessity applies not only to
judicial matters but also to quasi-judicial and administrative matters. 6 The impeding
justification behind allowing such an exception is to prevent the course of justice from being
impeded itself. This exception is applicable in a situation wherein the choice has to be made
between the choice is between allowing a biased person to act and preventing the action
altogether and subsequently, former is the choice.7 The later would have been the preferred
choice, provided the action would not have been a necessity. This position flows in two
situations:
Statutory Requirement

Statutory requirement refers to the mandate of law in furtherance of the procedure for actions
like appointment and decision making. In the case of Ashok Kumar Yadav v. State of
Haryana,8 the Supreme Court held that any member of the Public Service Commission could

1
Joshua Ho Fung Lym, Judicial Biasness; Nemo Judex In Cause Sua, ACADEMIA,
https://www.academia.edu/6692080/Judicial_Biasness_Nemo_Judex_In_Causa_Sua.
2
Registrar of Coop. Societies v. F.X. Fernando, (1994) 2 SCC 746.
3
R. v. Sussex [1924] 1 KB 256 (UK).
4
Narmada Bai v. State of Gujarat, (2011) 5 SCC 79.
5
State of U.P. v. Sheo Shanker Srivastava, (2006) 3 SCC 276.
6
J. Mohapatra & Co. v. State of Orissa, (1984) 4 SCC 103, 112.
7
Election Commission of India v. Subramanian Swamy, (1996) 4 SCC 104.
8
Ashok Kumar Yadav v. State of Haryana, AIR 1987 SC 454.
not entirely disassociate himself from the process of selection just because a few candidates
were related to him. This is because, constitution of the Public Service Commission is a
constitutional mandate i.e. provided by the Constitution of India, 9 which also requires the
mandatory presence of the members in the recruitment procedure and thus cannot be
removed.10 The court in this case further went ahead to hold that, if substitution is possible in
such cases, the doctrine doesn’t apply as there is no impending necessity and an equally
efficacious alternative is available.11
Where the author-members of the Assessment Sub-Committee (formed for assessment of the
works of authors for publication of a book) were appointed by the virtue of their official
position in the various departments of the State Government of Odisha like Secretary of the
Education Department, Director of the Higher Education Department etc., and others were
selected and appointed by the Government for the purpose of assessment on meritocracy
basis through a Government Resolution, the exception of ‘doctrine of necessity’ doesn’t
apply. This is because of the basic fact that, any equally efficacious substitute for every such
author-member was available i.e. there was nothing to prevent those authors whose books
were submitted for selection, from pointing out this fact to the State Government so that the
Resolution could be amended to replace them and appoint substitute or substitutes, as the
case may be. Similarly, 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.
Exclusiveness of a competent authority

Exclusiveness of a competent authority is related to the Statutory requirement but not

completely. Tata Cellular v. Union of India 12 is a case on this point. In this case, a Mr R.
Satish Kumar, the son of Mr. B.R. Nair, came to be appointed in BPL Systems and Projects
and the question arises whether the doctrine of necessity was a valid exception to the
principle. In this case it was held that B.R. Nair was the Director General of
Telecommunication and could exercise all the powers under Section 3(6) of the Indian
Telegraphs Act of 1885. Such a Telecom Authority has the right to grant cellular operating
licenses to the successful party and also reject any bids without assigning any reason.
Registration fees, security deposit and other financial charges are also to be fixed by the
licensor in consultation with the Telecom Authority. This is what is stated in the financial

9
INDIA CONST. art. 315, cl. 1.
10
Id.
11
supra note 8.
12
Tata Cellular v. Union of India, (1994) 6 SCC 651, 699.
bid. Therefore, Mr. B.R. Nair could not dissociate himself from the decision-making process.
It is under these circumstances the Supreme Court affirmed the application of the doctrine of
necessity.13
In the case of Charan Lal Sahu v. Union of India,14 the Court refused to accept the challenge
to the ability of the Government to represent the victims of the Bhopal Gast Tragedy,
irrespective of the contention regarding the conflict of interest, which anyways stood
disapproved. Further, in the circumstances of the case, the Government of India is only
capable to represent the victims as a party. Moreover, the adjudication of the claims would be
done by the court only and thus, cannot be called a judge in his own court.
Lastly, a complex situation which comes into picture is, when the applicability of the
exception shall be contingent on the failure of the Statutory Alternative to the situation of
bias as well. The Supreme Court in the case of Subramanian Swamy,15 laid down that, even if
the presence of Chief Election Commissioner is not pertinent in every decision of the
Election Commission and there is a high probability of bias of the Chief, the exception to the
principle of bias can apply in this case as well. If both the Election Commissioners have a
unanimous decision in regard to the selection of any particular member, in that case the same
is conveyed to the Governor as per the mandate and the CEC remains out of the decision
making. However, where there is no unanimity in the decision of the Election
Commissioners, the exception of Necessity applies in this case and the Chief Election
Commissioner has to be a part of the decision-making process.

13
Id at 700.
14
Charan Lal Sahu v. Union of India, (1990) 1 SCC 613, 694.
15
supra note 7.