This article is written by R Sai Gayatri pursuing BA.LLB from Post Graduate College of Law, Osmania University. This article deals with the doctrine of necessity, its definition, history, exceptions, its position in the Indian criminal law and its judicial approach. 


“Necessity knows no law.” – Aesop.

“Nemo in propria causa judex, esse debet” is a Latin maxim that states that no one should be made the judge in their own cause. It is one of the principles of natural justice. The aforesaid maxim also states that if an individual is provided with the authority and power of taking decisions then they must act in a fair and unbiased manner without prejudice.

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For example, if John stole the valuables of Ron and later John himself is made the judge to decide whether he stole the valuables of Ron or not. Obviously, John will decide the case in his favour and prove himself innocent. This defeats the very purpose of justice, hence, the principles of natural justice exist to curb such scrupulous cases. The rule against bias is premised on the presumption that it is against human psychology to decide a case against one’s own interest.

Partiality or bias basically refers to any element which influences an individual to decide in favour or against their own apprehensions regarding the situation of the case. Thus, the case at hand is not solely decided upon the basis of evidence. The principles of natural justice thus include the rule against bias. The said rule eliminates those elements which influence a judge unfairly when taking a decision in a particular case. However, the doctrine of necessity is considered to be an exception to the rule against bias. Let us understand more about the doctrine of necessity through this article.

Understanding the doctrine of necessity

The principles of natural justice are the most basic legal parameters that are considered whenever a court of law is to arrive at a decision. However, when it comes to one of the principles of natural justice i.e., the rule against bias, there exists an exception and that is the doctrine of necessity. The doctrine of necessity enables the legal authorities to function in the following manner – 

  • To take certain actions that must be taken at a particular moment, wherein such acts would not otherwise be regarded within the scope of the law in a general legal situation.
  • To invoke and apply the doctrine of necessity only in such circumstances where there is an absence of a determining authority to take the decision regarding a case.

In a situation where an option is given to either let a person act in a biased manner regarding a matter or to quash the matter itself, the preference will be given to taking action in a biased manner, even though the decision might be affected by the bias of the deciding authority. In cases similar to the aforementioned situation, the rule against bias is defeated by the rule of necessity. The only condition here is that such deciding authority must mandatorily conclude the matter at hand.

History of the doctrine of necessity

The doctrine of necessity has its roots in the writings of Henry de Bracton, a medieval jurist. He stated that “that which is otherwise not lawful is made lawful by necessity”. Later, the controversial case of Federation of Pakistan v. Maulvi Tamizuddin Khan (1955) came up before the judiciary of Pakistan.

In this case, the Chief Justice of Pakistan i.e., Muhammad Munir legally validated the extra-constitutional use of emergency powers by Governor-General, Ghulam Mohammad. Further, the then Chief Justice of Pakistan referred to the aforementioned maxim of Henry de Bracton thus implementing the doctrine of necessity. The case of Federation of Pakistan v Maulvi Tamizuddin Khan (1955) paved the way for the use of the doctrine of necessity by various other Commonwealth countries. But, the condition in the application of this doctrine is that even by the use of bias, justice must not only be done but it must appear to have been done. Therefore, the doctrine of necessity is an exception to the principle of nemo judex in causa sua.

When it comes to the case of India, the landmark case of Gullapalli Nageswara Rao v. APSRTC (1958) is known for invoking the doctrine of necessity. The said doctrine was later modified into the Doctrine of Absolute Necessity through the case of Election Commission of India v. Dr. Subramaniam Swamy (1996) wherein it was held by the court that the doctrine of necessity shall only be invoked in the cases of absolute necessity.

Exceptions to the doctrine of necessity

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The doctrine of necessity shields the adjudicators from bias. However, the said doctrine does not give the license to use the excuse of bias in deciding every case. This means that the doctrine of necessity disqualifies such adjudicators who resort to bias while arriving at decisions. But, there are certain exceptions wherein such biased decisions given by the adjudicator are held valid. The exceptions are as follows –

  • There is no availability of another competent person for arbitration. 
  • In the absence of whom (the adjudicator) a quorum cannot be formed.
  • There is no possibility of establishing another competent tribunal.

In case the doctrine of necessity is invoked in every legal matter then there is a high possibility that it would be in favour of the defaulting party. Simultaneously, if the doctrine of necessity is totally abandoned then it would terminate the decision thereby not providing any justice at all to either of the parties.

Before invoking the doctrine of necessity it is pertinent to critically analyse whether the said doctrine really needs to be invoked or not to arrive at a decision. This strengthens and improves the decision making power. The doctrine of necessity enables parties to challenge and question the administrative actions in court. But while deciding the validity of an administrative action it must be noted that unless the predetermined concepts are capable enough of influencing the bias of the judge in their mind, such administrative action cannot be held invalid.

Doctrine of necessity under the Indian Penal Code, 1860

The doctrine of necessity can be found in Indian criminal law. Chapter IV of the Indian Penal Code, 1860 contains the provisions of ‘General Exceptions’ under Sections 76 to 106. If an individual commits any of the offences under the exceptions or circumstances as stated in Chapter-IV, then such individual is exempted from criminal liability. The individual will not face any punishment. The doctrine of necessity is also included in such general exceptions under Section 81 of the IPC.

Section 81 of the IPC talks about such acts which are likely to cause harm but where such acts are done without any criminal intent to cause harm. Such an act must also be done in good faith in order to avoid or prevent any kind of further harm to an individual or any property. However, the risk of doing such an act will be weighed against the nature and need of each situation.

In the case of preventing a harmful situation, an individual is given two options that result in some harm either way. In such a situation, to avoid or prevent greater harm, an individual due to utter necessity is compelled to commit an act that would otherwise be considered as an offence. In simple terms, the individual is required to choose between two evils and they must rightly choose the less evil option in order for the doctrine of necessity to apply.

Judicial approach towards the doctrine of necessity

Regina v. Dudley and Stephens (1884)

In this case, Thomas Dudley and Edwin Stephens were the defendants. The said defendants and a cabin boy named Richard Parker were cast adrift in a boat without food and water due to a shipwreck. Later, on the eighteenth day, when the three of them had been without food for seven days and without water for five days, Dudley proposed to Stephen that one should be put to death to save the rest. Accordingly, they decided that it would be better to kill Parker so that they could save their own lives. On the twentieth day, both Dudley and Stephens killed Parker and fed on his flesh for four days. Later, a vessel rescued them and they were charged with committing the murder of Richard Parker.

It was held by the Court that killing an innocent person in order to save one’s own life does not justify murder even though it was committed under the extreme necessity of hunger. Subsequently, the defendants were sentenced to death, however, it was later reduced to six months imprisonment.

United States v. Holmes (1842)

In this case, an American vessel by the name ‘William Brown’ containing 65 passengers and 17 crew members hit an iceberg and sank rapidly. As a result, the longboat was cast adrift in the stormy sea. In order to prevent the boat from being sunk, the members of the crew threw some of the passengers overboard. Later, when a case came up for the trial of one of the crew members, the court held that such situations of necessity may be considered a defence against the charge of criminal homicide. However, the court stated that those who are sacrificed must be fairly selected depending on the group of people present.

Rex v. Bourne (1938)

In this case, a 14-year-old young girl became pregnant because she was raped by five soldiers. The defendant was a gynaecologist. He performed an abortion with the consent of the girl’s parents since he believed that the rape victim could die if she was permitted to give birth. After hearing the facts of the case, the court held the defendant as not guilty of the offence of unlawfully procuring a miscarriage. The defendant was found not guilty because he acted in good faith by performing his duty as a gynaecologist.

Tata Cellular v. the Union of India (1994)

In this case, the Government of India issued invitations to all the mobile operators to establish their networks in the four metro cities i.e., Chennai, Bombay, Calcutta and Delhi. The Evaluation Committee was supposed to peruse and evaluate the tenders under the Telecom Regulatory Authority of India (TRAI), which had a Director-General of Telecommunication in it. The tender of the Director-General’s son was selected at the end of the evaluation procedure. In this case, the Supreme Court did not approve the violation of ‘Nemo judex in causa sua’ as without the Director-General of Communication no tender can be selected and fair evaluation cannot be done. There was no option of substitution and thus the decision was not liable to be struck down. In this case, the Supreme Court applied the doctrine of necessity liberally.

Election Commission of India v. Dr. Subramaniam Swamy (1996)

In this case, it was held that if the Chief Election Commission entails a possibility of bias then their participation is not mandatory and likewise the doctrine of necessity will not be applicable. However, a proper course for them was laid down wherein they could call for a meeting and withdraw from the meeting thereby leaving it to the other members of the commission to make a decision. Only in the cases where there is a conflict between them, the doctrine of necessity will be applied. Therefore, in this case, the doctrine of necessity was changed into the doctrine of absolute necessity which in turn established that the said doctrine can only be invoked in cases of absolute necessity.


The doctrine of necessity is an exception to the principle of ‘Nemo judex in causa sua’. According to the said principle, on the basis of bias, an authority is liable to be disqualified. When the doctrine of necessity is invoked, it acts as a defence even when the law is violated making the decision unbiased and valid. However, the said doctrine can only be invoked in certain situations wherein if the doctrine is not invoked, then it would lead to the total termination of the matter thereby causing greater harm. Further, the said doctrine cannot be applied in every case, i.e., the Hon’ble Supreme Court stated that the said doctrine can only be invoked in case of absolute necessity.


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