Suicide: Durkheim’s theory and the debate

On decriminalization of Section 309, IPC

Tweisha Mishra, Student of Law, National Law Institute University, Bhopal

Abstract

Suicide as a phenomenon, in the present article, is focused on adolescent or teenage suicides, which are increasing at rapid rates, thus raising a cause of concern. Suicide has been studied with reference to the eminent French sociologist, Emile Durkheim’s theory on Suicide, which was explained in his book, Le Suicide (1897). This theory has been considered to be highly relevant to the present study.

The aim of this article is to explore suicide, not as a crime but as a sociological phenomenon that requires our immediate attention. This is done by analyzing suicide as theorized by Durkheim. Suicide has been defined, its types and causes explained and various prevention programs in operation have been referred to. In addition, the position of law in India has been analyzed with reference to various cases in which the question of the criminality of attempt to commit suicide has been raised.

INTRODUCTION

English word adolescence is derived from the Latin term adolescere which means ‘growing to maturity’. It is a transitional stage of physical and psychological human development that generally occurs during the period from puberty to legal adulthood [age of majority] ((Macmillan Dictionary for Students, Macmillan, Pan Ltd. (1981), page 14, 456)).  Adolescent is a person who is considered to be neither a child nor an adult. Period of adolescence generally begins from the age of twelve and goes on till twenty. In Western societies adolescence period is also referred to as ‘the teenage years’. The label teenager is popularly associated with the characteristic behaviour patterns of young adolescents. In the words of Jersild, adolescence is “the period through which a growing person makes transition from childhood to maturity ((Sharma, Ramnath. Psychological Problems of Adolescence. Advanced Applied Psychology, Vol.1. New Delhi: Atlantic Publishers and Distributors. 2004)).” During this period, the adolescent is active and unstable. Suicides in teenagers are not a new phenomenon, but the frequency of their commission in recent times is certainly a reason for worry.

The US recorded an 18% increase in teen suicide in the last couple of years, while youth (10 to 29 years) account for more than half of 312 suicides in India daily. A study conducted by CMC, Vellore indicates that Indian urban hubs such as Chennai record the highest suicide rates among teenagers in the world. This is a fact borne out by the National Crime Records Bureau’s figures for 2005; the number of children under 14 across India who committed suicide stood at 1328 boys and 1257 girls ((National Crime Records Bureau, Ministry of Home Affairs. Accidental Deaths and Suicides in India, 2013, page 169-189)). Suicide rates are nowadays disturbingly high among teenagers, and this is a grave and contemplative issue. Suicide rates have increased sharply among U.S. adolescents in recent decades and are now about 15 per 100,000 for boys and 3 per 100,000 for girls. It is the third leading cause of death for adolescents of fifteen to nineteen years old, accounting for 14 percent of all deaths in this age group. Suicide is very often, an impulse among adolescents, for example, after a highly stressful event. Teen lovers sometimes agree to kill themselves if they cannot be together. According to a psychological study, most adolescents who commit suicide – about 80 percent – have long-standing mental health problems such as depression, externalizing behaviour disorders, or substance abuse. The problem of increasing tendency among youth to commit suicide has been raised in Parliament recently. Some of the important terms used in this article are defined here. Suicide refers to the act of deliberately killing oneself. Para-suicide is the apparent attempted suicide without the actual intention of killing oneself. This also includes the attempts at suicide that did not succeed. Suicidal Ideation is the thinking about suicide without actually making plans to commit suicide. In this article, the author seeks to investigate the sociological causes of suicides among adolescents and suggest measures in which such cases may be prevented and avoided in future. Important recent statistics are described here.

Incidence and rate of suicides during the decade (2002–2012):More than one lakh persons (1,35,445) in the country lost their lives by committing suicide during the year 2012. The number of suicides in the country during the decade (2002–2012) has recorded an increase of 22.7%. The population has increased by 15.5% during the decade but the rate of suicides in 2012 was 11.2%. Causes of suicide include ‘family problems’ and ‘illness’, accounting for 25.6% and 20.8% respectively, are the major causes of suicides among the specified causes. ‘Drug abuse/addiction’ (3.3%), ‘love affairs’ (3.2%), ‘bankruptcy or sudden change in economic status’ (2.0%), ‘poverty’ (1.9%) and ‘dowry dispute’ (1.6%) were the other causes of suicides. It is also observed that social and economic causes have led most of the males to commit suicide whereas emotional and personal causes have mainly driven females to end their lives. Around 34.6% suicide victims were youths in the age group of 15-29 years and 33.7% were middle aged persons in the age group 30-44 years ((Id.)).

DURKHEIM’S THEORY OF SUICIDE

Le Suicide was a groundbreaking book in the field of sociology, written by French sociologist Émile Durkheim and published in 1897. He defines suicide as follows:

The term suicide is applied to all cases of death resulting directly or indirectly from a positive or negative act of the victim himself, which he knows will produce this result ((Durkheim, Emile. Suicide: A Study in Sociology. Trans. John Spaulding and George Simpson. Glencoe, Illinois: Free Press, 1952)).

The significance of his work in the history of sociology cannot be denied due to two principal reasons. One, it was the first attempt to apply a set of systematic principles of scientific investigation to a specific social phenomenon (suicide). These principles had been explained by Durkheim in his earlier book, The Rules of Sociological Method (1895). Two, having outlined the principles involved in the scientific study of society, Durkheim attempted to demonstrate the way in which we could apply those principles to the study of any social phenomenon. Durkheim argued that a phenomenon such as suicide could be analysed scientifically and the causes of that phenomenon explored. He believed that, in order to understand social life we had to analyse human behaviour in terms of its social characteristics. Following Comte, he viewed societies as “social systems” – systems that could only be fully understood in terms of the inter-relationship between various parts of the social. For Durkheim, society appeared to be something that existed in its own right, separate from the ideas, hopes and desires of its individual members.

Durkheim’s study of suicide was, and remains, an important example of the way in which sociological knowledge and methodological principles can be used to challenge commonly-accepted or “taken-for-granted” ideas about the nature of the social world. As he argued:

Since suicide is an individual action affecting the individual only, it must seemingly depend exclusively on individual factors, thus belonging to psychology alone. Is not the suicide’s resolve usually explained by his temperament, character, antecedents and private history? … If, instead of seeing in them (that is, suicides) only separate occurrences unrelated and to be separately studied, the suicides committed in a given society during a given period of time are taken as a whole, it appears that this total is not simply a sum of independent units, a collective total, but is itself a new fact sui generis (that is, unique in some way), with its own unity, individuality and consequently its own nature – a nature, furthermore, dominantly social ((Id.)).

From the above, it is explained why Durkheim considered it important to study suicide as a collective, as opposed to an individual, phenomenon. In his book, he arrived at various conclusions by exploring the differing suicide rates among Protestants and Catholics, arguing that stronger social control among Catholics resulted in lower suicide rates. His conclusions on suicide rates among various sections of society include:

  • Suicide rates are higher in men than women (although married women who remained childless for a number of years ended up with a high suicide rate).
  • Suicide rates are higher for those who are single than those who are married.
  • Suicide rates are higher for people without children than people with children.
  • Suicide rates are higher among Protestants than Catholics and Jews.
  • Suicide rates are higher among soldiers than civilians.
  • Suicide rates are higher in times of peace than in times of war.

In his work, he also distinguished four subtypes of suicide. These include egoistic, altruistic, anomic and fatalistic suicides.

Egoistic suicide is primarily concerned with the lack of a sense of belonging, as well as integration with the society. It gives birth to feelings of apathy, stress and depression. It is the result of weakening bonds that generally integrate individuals into the society, and was called by Durkheim as ‘excessive individuation’.

Altruistic suicide can be considered as the exact opposite of egoistic suicide. It is the product of excessive integration, of being overpowered by a group’s aims and concerns. The individual is perceived to be inferior to the society as a whole. His needs are thus, inferior to those of the society.

Anomic suicide is the result of major upheavals in the social or economic status of the individual. It results in a feeling of directionlessness and demoralization. It is the most common type of suicide in present day society, being a consequence of sudden transformations in the material world, as well as declining trends of emotional bonds and community living.

Fatalistic suicide takes place when a person is excessively regulated, when their futures are pitilessly blocked and passions violently choked by oppressive discipline ((Harriford, Diane, and Thomson, When the Center is on Fire, pg.167)). It occurs in excessively oppressive societies, causing people to prefer to dying to carrying on living within such a society.

Such classification of the types of suicides is fundamentally based on the degrees of imbalance between two forces: social integration and moral regulation. This is considered to be highly relevant even in the modern society. The next section presents the various causes that sociologists of different times have attributed to suicides.

CAUSES OF SUICIDE AMONG YOUTH

In Durkheim’s society, children and teenagers were the groups that had a low suicide rate. This is something that has changed today and there appears to be an unusually rapid proliferation of suicides in children and teenagers throughout the globe over the last few decades. By identifying the type of suicide as suggested by Durkheim, that these young people are committing, it may be possible to find the cause for such an increase and implement the necessary procedures to help prevent the phenomenon ((Bridge J.A., Goldstein T.R., Brent D.A. Adolescent Suicide and Suicidal Behavior. J. Child. Psychol. Psychiatry. 2006;47:372–394)).

Of all the types of suicide that Emile Durkheim wrote about in his groundbreaking work, Suicide: a Study in Sociology, there are two that seem to be behind teenage suicides in the twentieth and twenty-first centuries. These two types of suicide are altruistic and anomic, with anomic being the form that has the most relevance in analysis of teenage suicides. Durkheim describes this type as resulting from a low regulation and integration of the individual into the society. Among the different factors leading to anomic suicides among teenagers, the most common is major readjustments in the social order, an inability to fulfill a person’s needs, a lack of compassion from fellow humans, a lack of aims in life, a continually transforming society, and a lack of discipline and regulation. Primary causes have been explained in brief.

Stress and Depression: Many causes, including academic pressure and peer pressure, cause stress in adolescents. Biochemical changes in the brain trigger depression, which manifests itself in different forms. Vidyadhar Bapat, a known psychotherapist has studied the temperament, strength and weaknesses of the teenagers which make them susceptible to depression. He comments, “due to their sensitivity, teenagers feel a void when what they get is completely different from what they expected ((Birajdar, Laxmi. The Many Pitfalls of Teens Life. Times City. Sunday Times of India. June 1, 2008)).”

Gender: In Western countries, the rates of suicide are higher in adolescent boys than adolescent girls (ratio of 5:1), whereas the rates of suicidal ideation and attempted suicide are higher in girls (ratio of 3:1). Reasons for such patterns include higher suicidal intent, use of more violent methods, higher prevalence of antisocial disorder and substance abuse, and greater vulnerability to stress factors, such as legal troubles, financial difficulties, and personal losses among boys. Boys may also have more difficulties in seeking help and communicating their distress.

Teenage Pregnancies and Venereal Diseases: Teenage pregnancies and venereal diseases are considered as serious problems faced by the teenagers. This can severely and all of a sudden disrupt their education as well as health. Moreover, becoming pregnant at such an early age can also have seriously negative effects on a girl’s health and mental well-being.

Family Factors: Research has suggested that family environment is an important factor in predicting suicidal behaviors. The relevant family-related risk factors include parental psychopathology, family history of suicidal behavior, family discord, loss of a parent to death or divorce and poor quality of the parent-child relationship.

Physical and Sexual Abuse: There is a grave association between childhood abuse and suicidal tendencies for both boys and girls. Exposure to physical and, especially, sexual abuse in childhood leads to a significant increase in poor mental health outcomes, including suicidal ideation and behavior, experienced at ages 16 to 25. The risk is increased if the child is sexually abused by an immediate family member or the sexual abuse is repeated over time. The greater the severity of the abuse, the higher the risk of suicide attempts.

PROGRAMS FOR PREVENTION

Despite the increasing trend of suicidal tendencies among adolescents across the world due to causes discussed earlier, there have been important measures to prevent and curb suicides among youth. For this, attention has been focused on school-based programs for identifying students susceptible to depression and anxiety, and referring them to psychological health institutions. The teachers of the target schools act as ‘gatekeepers’ to identify and refer such children. This program is worthy of appreciation because many adolescents do not convey their conditions to adults, or express clearly their mental state. Through this approach, it becomes possible to study the behaviours and take effective measures in order to prevent commission of suicide. In Canada, many prevention programs focused on protection of ethnic minorities such as native Indians have been implemented to promote their interests and values and save them from extinction. There are some plans that are based on Durkheim’s study and attempt to provide teenagers with the resources as well as the education to counter the primary causes leading to suicides among them. They also try to provide solutions for the despair, anxiety, helplessness and depression among youth. They educate adolescents to express themselves and communicate their need for support to those who are capable of extending such help. They encourage teenagers not to be embarrassed by their vulnerable conditions. One such appreciable effort, named ‘Suicide Shouldn’t Be a Secret’ has been developed in Colorado, and is based on Durkheim’s research. This campaign conveys this message in the adolescents’ own words and provides resources using modern technology that is within the access of teenagers across America, such as the internet. The program has an online resource that shows the warning signals that family and friends of such teenagers should be careful about and also lists the important phone numbers that the teenagers can call if they need to discuss their problems with someone.

In India, national suicide prevention measures are oriented towards school education programs, crisis center hotlines, screening programs that seek to identify susceptible adolescents, media guidelines (suicide prevention strategies that involve educating media professionals about the prevalence of copy-cat suicides among adolescents) and efforts to limit access to firearms. These programs have been helpful in showing that people with suicidal tendencies are inclined to show signs of emotional and mental anxiety. The identified individuals may be referred for efficient and effective treatment. Referring individuals at risk to mental health services and institutions can save many lives in time, and provide proper care to the individuals that they need so desperately.

One noteworthy project to prevent suicides is ‘Strategies to Prevent Suicide (STOPS) Project’ of Suicide Prevention International (SPI). In 2006, the Planning Committee, composed of Herbert Hendin, José Bertolote, Michael Phillips, and Danuta Wasserman developed the STOPS Project in Asia ((Herbert Hendin et al. Suicide and Suicide Prevention in Asia, World Health Organization, 2008 http://www.who.int/mental_health/resources/suicide_prevention_asia.pdf)). This program has consulted various experts engaged in suicide prevention programs across Asian countries that have undertaken strategies to curb suicides, not just in the public sector but also by non-governmental organizations. The objective of the program is to stimulate and improve suicide prevention initiatives in participant Asian countries and to help develop, implement, and fund suicide prevention initiatives that seem likely to be effective. Initiatives that have effective evaluation measures are highlighted to serve as a model for others. STOPS is currently focused on three South Asian countries (India, Sri Lanka, and Thailand), belonging to the WHO South-East Asia Region, one country belonging to the WHO Eastern Mediterranean Region (Pakistan), and eight countries (Australia; China; Japan; Malaysia; New Zealand; the Republic of Korea; Singapore; Vietnam; and China, Hong Kong, Special Administrative Region [Hong Kong SAR]), belonging to the WHO Western Pacific Region.

LEGAL PROVISIONS IN INDIA

The relevant sections of the Indian Penal Code that discuss suicide are 306 (abetment of suicide) and 309 (attempt to commit suicide). Section 306 states:

If any person commits suicide, whoever abets the commission of such suicide, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.

Attempted suicide, though a failed act usually carries more importance than suicide, a successful act, since attempt to commit suicide constitutes an offence under Section 309 of Indian Penal Code. It states:

Whoever attempts to commit suicide and does any act towards the commission of such offence, shall be punished with simple imprisonment for term which may extend to one year [or with fine, or with both].

In England, the Suicide Act 1961 abrogated the law laying down that attempt to commit suicide is an offence. Although suicide is no longer an offence in itself, any person who aids, abets, counsels or procures the suicide of another, or an attempt by another to commit suicide, is guilty of an offence and liable on conviction on indictment to imprisonment for a term which may extend to 14 years ((Halsbury’s Laws of England, 4th ed. 2000 Reissue, Vol. 11(1), Para 106)).

The provisions of Section 309 have given rise to numerous conflicting opinions on the desirability of making attempt to suicide punishable. On one hand, it is considered that Article 21 of the Constitution of India guarantees protection of life and personal liberty. By declaring an attempt to commit suicide a crime, the IPC upholds the dignity associated with human life which is as precious to the State as it is, to its holder and the State cannot turn a blind eye to a person trying to kill himself. On the other hand, a section of people feels that the provision is irrational and brutal as it provides double punishment to an individual already in distress. The conditions that led him to attempt to end his own life are further aggravated by imposing a cruel punishment or fine or both on the troubled individual. The Mental Health Care Bill was introduced to the Rajya Sabha on August 19, 2013 and provides, in Article 124, that:

Notwithstanding anything contained in section 309 of the Indian Penal Code, any person who attempts to commit suicide shall be presumed, unless proved otherwise, to be suffering from mental illness at the time of attempting suicide and shall not be liable to punishment under the said section.

It also provides that the Government shall have the duty to provide medical care to any such person attempting suicide. The Bill, therefore, does not repeal Section 309 of the Indian Penal Code, but merely provides the presumption of mental illness ((The Mental Health Care Bill 2013. Ministry of Health and Family Welfare. Union of India 2013)).

In 1981, the Delhi High Court condemned the section by calling it ‘unworthy of human society’. In 1986, the Bombay High Court in Maruti Shripati Dubal v. State of Maharashtra ((1987 CriLJ 743)), ruled that Section 309 is ‘ultra-vires’ as it is violative of Articles 14 and 21 of the Constitution of India. It supported its decision with an example. The Court said:

The freedom of speech and expression includes freedom not to speak and to remain silent. The freedom of association and movement likewise includes the freedom not to join any association or to move anywhere. The freedom of business and occupation includes freedom not to do business and to close down the existing business. If this is so, logically it must follow that right to live as recognized by Article 21 of the Constitution will include also a right not to live or not to be forced to live. To put it positively, Article 21 would include a right to die, or to terminate one’s life.

The High Court further observed that the notion of ending one’s own life is not something which is entirely novel to the history of humankind. Religions like Hinduism and Jainism have approved the act as well as condemned it based on carrying circumstances. Buddhism has remained ambivalent on the issue. Neither the Old nor the New Testament condemn suicide as an act. It is significant that the High Court referred to the French sociologist, Emile Durkheim, and his classification of the types of suicides in its judgment. It quoted the explanations given by Durkheim of egoistic, altruistic and anomic suicides by considering them relevant to the present case. It also observed that imprisoning people who attempted suicide on account of mental illnesses would only lead to further derangement of the individuals. What they really need is proper psychiatric care, not punishment. Moreover, those who attempt to kill themselves due to terminal diseases, or grave physical state because of old age or physical disablement need homes for care of such people and not prisons.

However, the Andhra HC held that it is a valid section, by giving the reason that it does not ‘offend’ the said Articles. In the 1994 case of P. Rathinam v. Union of India ((AIR 1994 SC 1844)), a Supreme Court bench consisting of two judges, Justice R M Sahai and Justice B L Hansaria, held the section to be void. Quoting from a lecture of Harvard University Professor of Law and Psychiatry, Alan A Stone, the Supreme Court noted that right to die inevitably leads to the right to commit suicide. They said: the right to live (under Article 21 of the Constitution of India) can be said to bring in its trial the right not to live a forced life.

On the contrary, in March 1996, a Supreme Court bench consisting of five judges declared that attempted suicide is an offence under the IPC, overruling the previous bench. The case involving this question was Gian Kaur v. State of Punjab ((AIR 1996 SC 946)), where the Court overruled the decisions in Maruti Shripati Dubal and P. Rathinam, ruling that Article 21 cannot be interpreted to include within it  the ‘right to die’, and thus, it cannot be said that section 309, IPC is violative of Article 21. It said:

‘Right to life’ is a natural right embodied in Article 21 but suicide is an unnatural termination or extinction of life and, therefore, incompatible and inconsistent with the concept of ‘right to life’. The comparison with other rights, such as the right to ‘freedom of speech’, etc., is inapposite… The right to die, if any, is inherently inconsistent with the right to life, as is death with life.

The Gian Kaur judgment reasoned that unhappiness is a cause behind suicides. However, a few scholars disagree with this judgment and argue by asking a question: Would the Court pronounce a medical condition as illegal if it is a symptom of depression and unhappiness? If not, then why is attempted suicide, which is a symptom of underlying psychiatric disorders, illegal? Depression is the commonest diagnosis associated with suicidal attempt like other common diagnoses such as alcoholism, drug abuse, Schizophrenia, etc. All these disorders require medical and/or psychological therapy ((Ahuja N. A Short Textbook of Psychiatry. 4th ed. New Delhi: Jaypee Brothers; 1999: p.203-210)). McNaughten’s rule may be found relevant when interpreting the criminality of Section 309. This rule is represented in Section 84 of the Indian Penal Code. It says:

Nothing is an offence which is done by a person who at the time of doing it, by reason of unsoundness of mind, is incapable of knowing the nature of the act, or that he is doing what is either wrong or contrary to Law.

Thus, through this argument, attempted suicide is not considered to be an offence since the person at the time of commission, is covered by Section 84. Moreover, a person suffering from grave psychological illness cannot be expected to consider the legal consequences of his act. Thus, the law in such cases, fails to act as a deterrent. Supporters of this theory ask: Does the State today have a right to force a person to stay alive, when the State itself cannot provide him means of a decent livelihood?

An Association at the global level, The International Association for Suicide Prevention, also observed that attempt to suicide needs to be decriminalized and the individuals with suicidal tendencies should be provided with immediate help and care, and that imposing punishment on such individuals only worsens their situation. The Association sponsors the ‘World Suicide Prevention Day’ in order to attract global attention to its immediate objective on September 10 every year. Acting on the view that such persons deserve the active sympathy of society and not condemnation or punishment, the British Parliament enacted the Suicide Act in 1961 whereby attempt to commit suicide ceased to be an offence ((Justice A. R. Lakshmanan, Humanization and Decriminalization of Attempt to Suicide, Report No. 210, October 2008. http://lawcommissionofindia.nic.in/reports/report210.pdf)). Clause 126 of the Indian Penal Code (Amendment) Bill, 1972, introduced in the Council of States on 11.12.1972, provided for the omission of section 309. It was stated in the ‘Notes on Clauses’ appended to the Bill that the said penal provision is harsh and unjustifiable, and that a person making an attempt to commit suicide deserves sympathy rather than punishment. As the House of the People was dissolved in 1979, the Bill, though passed by the Council of States, lapsed.

However, the debate regarding the section has now been stabilized. In December 2014, the government decided to decriminalize ‘attempt to suicide’ by deleting Section 309 of the Indian Penal Code. Minister of State for Home, Haribhai Parathibhai Chaudhary said that the government had decided to drop Section 309 from the IPC after 18 states and 4 Union territories backed the recommendation of the Law Commission of India in this regard. ​In his words:

Law Commission of India, in its 210th Report, had recommended that Section 309 (attempt to commit suicide) of IPC needs to be effaced from the statute book. As law and order is a state subject, views of States/UTs were requested on the recommendations of the Law Commission. 18 states and 4 Union territory administrations have supported that Section 309 of the IPC may be deleted. Keeping in view the responses from the states/UTs, it has been decided to delete Section 309 of IPC from the statute book ((Bharti Jain, Government decriminalizes attempt to commit suicide, removes section 309, TOI, December 10, 2014. http://timesofindia.indiatimes.com/india/Government-decriminalizes-attempt-to-commit-suicide-removes-section-309/articleshow/45452253.cms)).

It was observed that many countries including those in Europe and North America have decriminalized attempt to suicide. WHO, the International Association for Suicide Prevention, and Indian Psychiatric Society have also recommended the above stated decriminalization. Thus, in view of these recommendations, the Government finally took the bold step of initiating steps to repeal the ‘anachronistic’ law.

CONCLUSION

Suicide remains an grave psychological problem and a major cause of death in young people. The role of social factors in suicidal behavior has for long been established. It is very necessary that the causes of suicides be studied in depth, and appropriate measure to curb the act be enacted. Various views on the debate concerning decriminalization of attempt to suicide (covered by Section 309 of IPC) were expressed in the paper. This research welcomes the latest move of the government in favor of repealing the harsh and unreasonable section. It was highly necessary not to subject already troubled individuals to further pain and humiliation. This is a step that would go a long way in preventing suicides. However, only this is not enough. It is imperative that both governmental and non-governmental organizations pursue programs for the identification of such individuals who might be at risk of committing suicides and providing them with the requisite medical care. This would be more effective in the situations where individuals inclined towards committing suicides can be identified at a young age, during their adolescence so that they may be counseled in a more effective way. In this context, the concepts propagated by the classical theories of Durkheim and Erickson are still highly relevant today. Some such organizations are already at work and have done some commendable work in the field, but there is a need to establish more such organizations and expand their reach so as to bring more troubled individuals into their fold.

Social purpose of content of utilitarianism

Ruchika Jain, Student of Law, VIT Law School

UTILITARIANISM

Utilitarianism was a philosophical movement in England.  It is something that fits right in ethical theory when compared with science and featuring with great expletory power of single law of morality. Some of its roots can be found in Scottish philosopher called Hume’s writing also though he cannot be regarded as a typical exponent of utilitarianism. Utilitarianism is actually a type of naturalism.

JEREMY BENTHAM

According to Bentham, he places mankind under the governance of two sovereign masters, pleasure and pain. He says that good or evil action of man depends on the quantity of pain or pleasure. Utility was defined by Bentham as “that principle which approves or disapproves of every action whatsoever, according to the tendency[i] which it appears to have to[ii] augment or diminish the happiness of the party whose interest is in question ((Morals and legislation p.3)).” According to Bentham, the principle of utility is to promote the happiness of the individual or the happiness of the society. He says that providing pleasure and security to the society member is the duty of the government. He states that it is the greatest happiness of the greatest number of people in the society. Bentham refers all the function of law under these four heads:”to provide subsistence, to produce abundance, to favour equality, to maintain security ((The theory of legislation, ed.C.K.Ogden (London,1931), p.96)).” He places security as the top most priority which every man needs. After this he gives importance to equality, but equality of opportunity and not the equality of condition. A law of a state can just produce rewards and punishment to motivate people so that they can produce subsistence for themselves in the society. He further links between his theory of legislature and the ideas of modern social reform.

JOHN STRAUT MILL

He agreed to the saying of Jeremy Bentham. He further insisted the doctrine of happiness in the concept of utilitarianism which could be egoistic rather than showing unselfish concern for the welfare of others. He says about significance which attributes the concept of justice which he subordinates to state or order authoritative to utility. He defines its origin with two sentiments namely, the impulse of self defence and the feeling of sympathy. The sense of justice, Mill pointed out, encompasses all those moral requirements, which are most essential for the well being of mankind, and which human beings therefore regard as scared and obligatory ((Id., p.73,78)).

PHILOSOPHY OF IHERING

RUDOLF VON IHERING (1818-1892) was a German jurist. In his life period of 72 years, he devoted his time for the development of civil law and the concept of ‘utilitarianism’ and all his ideas were considered to be the most important for the development of the “Jurisprudence of interests” in Germany. His main works were given in his major work, Der Zweek Inrechi it means purpose in law.

RUDOLF VON IHERING completely criticised the idea of JOHN STRAUT MILL. According to J.S.Mill, “That the sole end for which mankind is warranted, individually or collectively, in interfering with liberty of action of any of their number, is self protection. That the only purpose for which power can be rightfully exercised over any member of a civilized community, against his will, is to prevent harm to others. His own good, either physical or moral, is not a sufficient warrant ((The English philosophers from Bacon to Mill, ed .E .A. Burtt p.956)).” He completely criticised the saying of J.S.Mill in his work “Law as a mean to an end”.

According to Jeremy Bentham and John Stuart Mill, an action is right if it is promoting happiness and wrong if it is not promoting happiness, the happiness should not only be limited to the person who has done the action, but it should also affect everyone.

Ihering gave a totally different concept of utilitarianism. To support his point of criticism he gave an example of Chinese government. He says that Chinese government could not prohibit the import of opium into china as it affects the liberty of the buyers. So, as a result what government could do so that their liberty is not affected, it can just see it with folded hands not bothering about other people of the country. According to him, the sole purpose of law is not to promote the individual liberty but it is to bring about the equilibrium between the individual purpose and the social purpose. This is the main goal of law. His basic philosophy attitude was “To make the work of the individual, whether it be of hand or the brain, as useful as possible for others, and thereby indirectly also for himself, to effectuate every force in the service of humanity – this is the problem which every civilized people must solve, and with regard to which it must regulate all its economics ((Id. pp. 68-69)).”

In IHERING’s philosophy, the central notion was the concept of purpose. The basic idea of his concept of purpose deals with right and law that exists and are valid only if it is realized and enforced by the justice. He further says that people and state should struggle for their moral self-assertion. According to him “Purpose is the creator of law”. He thinks that law is only an instrument to serve the society. He says that law is actually what the human sets to achieve his or her desires. Though he accepted that it had its root in history, he rejected that law is nothing but the product of unintended, unconscious purely historical forces. According to him, end or purpose of law: “Law is the sum of the conditions of social life in the widest sense of the term as secured by the power of the state through the means of external compulsion ((Ihering, supra n.2 p.380)).” He arises two elements from his concept:

  1. Subtractive element
  2. Formal element

SUBSTRACTIVE ELEMENT

He said that securing of the conditions of social life is the subtractive aim of law.

FORMAL ELEMENT

The formal element is the concept of compulsion. According to him, a legal rule without compulsion “was a fire which does not burn, a light that does not shine ((Id. p. 241)).”

He described international law as merely an incomplete form of law. Ihering said “it is not mere chance but a necessity, deeply rooted in the nature of the law, that all thorough reforms of the mode of procedure and of positive may be tracked back to legislature ((Ihering, supra n.7, pp.9-10)).”

Spencer and evolutionary theory of law

S Debabrata Reddy, Student of Law, VIT LAW School, Chennai

Herbert Spencer (1820-1903) was an English philosopher and sociologist who became the author of a theory of law, justice, and society strongly influenced by Charles Darwin’s Origin of Species. Generally, the concept of evolution was first introduced by Jean Baptiste Lamarck and Charles Darwin. Lamarck coined the term “invertebrates” and believes in his “theory of inheritance of acquired characteristics”. His example was that of “giraffe’s neck”, ((Lamarck’s theory of inheritance to acquired characteristics, NCERT Biology XII))in ancient times giraffe used to have a small neck and it used to eat leaves from tall trees and due to this its neck got stretched and it became longer and later on it became a permanent trait in giraffes. Charles Darwin’s concept was the “theory of natural selection” in which he lays down his stress on “survival of fittest”. Survival of fittest is that animals which are best adapted to the present environmental conditions only survive. For example “dinosaur” it couldn’t adapt itself to the environmental conditions and as a result of which it got extinct ((Theory of Natural Selection – origin of species)).

Spencer’s evolutionary theory of law speaks about a society that existed before and a society that exists now. He considers civilization and law as products of biological, organic evolution, with struggle for existence, natural selection, and survival of fittest as its principal determining factors. To him evolution revealed itself in differentiation, individuation, and increasing division of labor. According to him, civilization was a gradual progress of social life from simple to more complex forms. He distinguishes development of civilization into two stages: primary or military form of society and a progressive society.

Primary society: –

  • It is a war-like society and compulsion is a force or method which is used and status is used as a regulatory device.
  • It is the current type, modern or industrial form of society with peace, freedom and contract as the controlling elements.

Progressive society: – Its development was marked by an increasing delimitation of the functions of the government in favor of individual liberty.

  • The function of the state is just to protect the human beings.
  • Government is confined only to enforcement of contracts.
  • Even if there is a clash between people, the government should not interfere rather it should guarantee mutual protection.
  • The state should not interfere in any social activity like public education, public communication, public hospitals, government operated- postal systems, poor laws, etc. i.e. social legislation ((Jurisprudence by Edgar Bodenheimer, sec.20, pg. 78)).
  • This concept can be correlated with Henry Maine’s status to contract theory ((See Henry Maine’s Doctrine)).

Spencer’s concept of justice was shaped by idea of liberty and is composed of two elements. One is the egoistic element and another one is altruistic element. Egoistic and altruistic doesn’t mean being self-centered or selfish and selfless but it is much different from what they actually mean. The egoistic element of justice means man derive the utmost benefit from nature and capabilities. It says one develops oneself if he is capable enough and is willing. The altruistic element of justice is conscious of the limits which the existence of other men having claims necessarily imposes upon the exercise of freedom i.e. if a person tries to develop then no one is to interfere in his works. Then the combination of both the elements give “equal freedom”, formulated by Spencer as follows: “every man is free to do that which he wills, provided that he doesn’t infringe the equal freedom of any other man”. This concept is a strong reminiscent of Kant’s definition of law.

This law of “equal freedom” clearly and unequivocally expressed a notion of justice adapted to a period of individualism and laissez faire. His strong individualism even prompted him to deny the attribute of right to social “rights”, which only the state could guarantee and implement such as the right to work and the right to public maintenance in case of indigence. He is even reluctant to recognize the “right to vote” as a political right of every citizen and says it is not a representation of individuals but representation of interests ((On Spencer see Friedmann, Legal Theory,5th edn.)).

Hegel and Philosophy of Law and interpretation

Hegel ’s philosophy starts with the criticism of Savigny and his philosophy of volksgeist. Savigny and his followers did not think about how the volksgeist, or the spirit of the people, is formed. Hence this theory of Savigny appeared to be incomplete and paved the way for a naturalist theory.

Variations in the course of historical development materialize with the realisation of an ideal. If there is an unchanging ideal in the root of all, then all systems disregarding evolutionary variations ought to have certain common features and it is found that they, in fact, do.

Hegel was one such philosopher who had an interpretation of law with such an ideal in mind. He used the method of dialectic interpretation so as to achieve this ideal which, we later find out, is the state.

The Philosophy

Hegel distinguished between nature and positive law. He proceeds to distinguish between philosophy of law concerning rationality of law and the study of law itself. Legal philosophy being rational, should conceive law in a rational way. Philosophy is concerned with reality only as long as it is rational. Hegel hence states that “That which is rational is real and that which is real is rational”.

Hegel sought to explain history on an abstract evolutionary plane ((For a critique of the inevitability of historical development, see Popper The Open Society and its Enemies, especially vol II. See also The poverty of Historicism)). Hegel saw it unfolding as a process of action and reaction between opposites, i.e.; dialectics.

The Dialectic Interpretation

The dialectic interpretation method is what Hegel uses to explain his philosophy. The dialectic interpretation involves thesis, antithesis and synthesis.

An idea or a proposition is a thesis. Any concept against this idea or thesis is the antithesis. The unification of the thesis and the antithesis under one idea or concept is the synthesis of the both.

For example;

Consider a half open door. “The door is half open”, is a statement which can considered thesis. “The door is half closed”, is a statement which can be considered as the antithesis of the given statement. The synthesis of the both can be the statement “The door is 45° from the closed position.

This interpretation is what Hegel uses to attain his ideal. He starts off with a concept, synthesises it with its antithesis. This obtained synthesis becomes the next thesis and this process goes on till it reaches its objective.

Hegel considers an idea to be the thesis. Idea outside itself, that is, nature, is its antithesis. The synthesis is the spirit, which can be considered to be the volksgeist of Savigny. Spirit is of two types, subjective spirit, which deals with thought and consciousness and objective spirit, which deals with legal and social institutions. The synthesis of these both is the absolute spirit.

Law comes into the category of objective spirit. Legal and social institutions exist to realize freedom. They exist so as to give freedom to the society. Freedom and will are complementary. The idea of freedom has a three-fold tier of operation.

First is the freedom of the individual in relation to himself, which brings about the concept of property. If a person imposes his will on a thing and the thing becomes his property, it is his will what to do or what not to do with that thing. No one else can interfere in this matter.

Second is the perception of freedom with others, in conformity with common will of all, which brings about the idea of contract. When two or more people have their will imposed on a thing, such a thing belongs to all of them. No one person can use the thing according to his individual will with impunity.

The third is the concept of wrong doing. When the individual freedom opposes the common will, this causes wrong doing.

This brings about the concept of morality. Morality hence restricts freedom and hence is its antithesis. The synthesis between the two is social ethics. Social ethics starts at the level of family. When a member of a family becomes independent from the said family, he is the part of the society. So with family as the thesis and society as the antithesis, the synthesis turns out as the state.

In the state, Hegel found the highest achievement of human endeavour. To be a member of the state was, to him, the supreme objective. The individual is the product of his culture and age, which are realised only through the state.

Law and state are thus concrete manifestations of the national spirit, which together with others are in turn a manifestation of a world spirit.

Flowchart

Flow Chart

Conclusion                

Hegel’s philosophy starts with an objective in mind and he succeeds in reaching that objective through the method of dialectic interpretation.

Structure, functioning and requirement of duties

Ramya Parthasarathi, Student of Law, VIT Law School

Duty is a branch of obligations.

  • Function of duty.
  • Structure of duty.
  • Functioning of society.

FUNCTION OF DUTY

They are basically recommendations from an authority for conduct to achieve some aim or an end which is either moral or social, etc. At times, these recommendations can be formed by the ends or means.

Requirements for the functioning

The duties are not supposed to deviate from the prevailing moral ideas of law. The connection between legal and moral ideas is very close but not identical. Moral ideas affect the functioning of the duty. Some duties are based on prevailing moral ideas and when the idea dies out then the duty separates itself from morality. This separation is basically caused due to pressure put on the society by law. Law and moral ideas are dependent on each other but they can deviate and be independent. The duty has to be thrown away when it detaches itself completely from the moral ideas.

The second one being that the continuance of a duty can happen only if it has the ability to fulfil the concerning function. Inner and external morality of law concerned only in the current time period and should be relevant. Duties must be designed for a common interest of welfare for people and not for individual people. Without measuring the constancy in a duty, the continuity cannot be measured and the legal order can no longer be stable.

According to Fuller ((Fuller, The Morality of  Law)), there should be a satisfactory balance between the application of law by judges and the structure of the duty. The widest sense of justice that is used to solve disputes in all situations and since a prescription is in the future sense and because control has to be in extremely expansive and therefore this shows that duties is not fixed or pre planned for all situations.

STRUCTURE OF DUTY

Duties are not descriptive but they are mainly prescriptions for behaviour. It is so because it follows patterns of conduct to which people have to follow and show their conformity. And these duties are basically phrased in an imperative form. The words such as ought, must, shall, etc shows that it still remains as an idea and nothing more relevant to the society. These phrases have been imperatively given rise to the duties that are commanded.

An ‘ought’ is valid only if it includes a constituent part in one or more criteria of validity. All rules do not create a form of duty and the ones which are not created as duties; they are treated as law to address an additional duty to officials. Duties are basically created for people to address other people and not self-regarding. The conduct envisaged in the duties and there is no particular rule for it refers to the future, although majority of these duties follow this fact.

SANCTION

Whenever a sanction is attached to its breach, a duty can be distinguished as ‘legal.’ It serves as a test for legal duty. There are several objections to the view for the test. They are:

  • Sanctions only contemplate breach of duty.
  • Should be law-abiding to regulate their behaviour.

These objections do not give a clear cross, complete picture.

The word sanction has several meanings in different terms from different people.

The main statement being ‘sanction is a test of legal duty,’ may mean

Sanctions happens or will happen only after consequences caused by a particular action. Sanction is just a prescriptive formula as a test of legal duty. Sanction as a test of legal duty is when the duty exists after deterring someone’s condition or liability, considering the fact if it is done or not. Sanctionless duty will suffice the purpose when security can be given in support of an existing duty. There must be an active duty before payments or part payments before it is appropriated with it. A joint obligation consists of one duty which rests on one or more persons. Duty, however, is a tool for legal reasoning and is applied ad hoc in many cases like for example, criminal cases which contain serious sanctions.

BREACH OF DUTY

Duty is a prescribed code of conduct which exists based on the ideas i.e moral ideas of the society. Breach of a particular duty can occur only when the conduct in a given situation is the shown result. In some cases, breach of duty requires a malicious intention, intentional or negligence. Wherein breach of strict responsibility cases can occur     just like the above mentioned.

CONFLICTING DUTIES

Two duties must not be conflicting in nature.

Example, one duty ‘You ought to do A’ and the other, ‘ you ought not to do A.’

There can be a conflict in duties when it comes to different legal systems and jurisdictions. Example, there can be a conflict between International Law and Municipal Law.

The performance of the duties can be conflictive in nature and when they are not conflicting their performance may not be reconcilable. When there is a conflict between a legal and moral duty, the legal duty always has an upper hand.

FUNCTIONING OF DUTIES

Duties basically regulate the conduct of the public. Duties are related to the ‘binding of people’ as they are obeyed very diligently. These duties cannot be ignored by the officials and public. Duties are binding as they have to be followed and are mandatory in use for the regulation.

The sanctions provide support to the majority of duties. Sanctions can be of many types. It can be binding on an individual or a property. It includes compensations for damages, reformation, deterrence and retribution. People obey these duties due to the internal pressure through moral ideas.

Roscoe Pound and philosophy of law

Akanksha Ravi, Student of Law, VIT Law School

Nathan Roscoe Pound was born on October 27th, 1870. He was one of the Founders of the American Sociological Jurisprudence. Roscoe Pound, while serving as the director of the State Botanical Survey, discovered rare lichen which he subsequently named Roscopoundia ((Available at www.britanica.com/Roscoe_Pound, last accessed on 5th Nov, 8:30 pm)). His theory of Sociological Jurisprudence required that inherited legal codes and traditions be adjusted to reflect cotemporary Social Conditions.

PHILOSOPHY

To start off with Roscoe Pound’s philosophy, we can first interpret that he was strongly influenced by William James’s philosophy which was more useful in practice rather than just in theory. Pound dealt with causes, reasons and effects rather than just with details and circumstances.

There were philosophers like Kant and Spencer, who viewed law in such a way that it could be used only to promote oneself, one’s desires and their views. But Pound criticized their views and viewed law in a completely different manner. He thought that law should be used as a medium to satisfy one’s wants. He thus viewed law in a much more realistic manner. To support this view, he agreed to the statement made by William James in his philosophy that said, “All demands are prima facie respectable, and that the best imaginary world would be one in which every demand was gratified as soon as made ((James, p. 205)).”

Further he was determined to rewrite the history that only recognised individual rights to promote one’s own desires. He said that there should be an effort made to promote human wants, human desires and recognise social wants. He mainly stressed on the fact that Sociological Jurisprudence should ensure the fact that execution, interpretation and application of laws should consider the social facts as well.

He said that Common law still bears to impress the individual rights. Therefore in order to achieve the purpose of legal order, there has to be a recognition of certain interests; individual, public and social ((Cf Ihering, p. 424)).

He has brought in the concept of Sociological Jurisprudence and has linked his philosophy with it. He said that, “the aim of social engineering is to build as efficient a structure of society as possible, which requires the satisfaction of the maximum of wants with the minimum friction ad waste ((Pound Interpretations of Legal History, p. 156)).” It is for this purpose that he has defined his classification of interests as the expectations of the humans to satisfy their claims, wants and desires.

He has further elaborately classified his interests:

INDIVIDUAL INTERESTS:  They are mainly claims or demands or desires that are viewed from the point of an individual life. It is a subjective concept relating to the title of that individual life and his interests. Further classifying this:

  • PERSONALITY: This includes individual opinion relating to honour, privacy, reputation, promotion of one’s own beliefs and opinions.
  • DOMESTIC RELATIONS: This mainly includes interests that are personally involved in relation with parents, wife, husband, children etc.
  • INTEREST OF SUBSISTANCE: This deals with the material interests. It may be related to property, relation with others, contracts, freedom to form associations etc.

PUBLIC INTERESTS:  They are mainly claims or demands or desires that are related to an individual in view of his interests in relation to the political life of the society. Pound has said that, “the claims asserted in title of a politically organised society; as one might say for convenience, the claims of the state, the political organisation of society ((Pound Jurisprudence III, P. 235-236)).” He has further classified these interests as :

  • INTERESTS OF THE STATE AS A JURISTIC PERSON: According to this, Pound has said that this category of political interests would include the integrity, freedom of action and honour of the state’s personality, and claims of the politically organised society as a corporation to property.
  • INTERESTS OF THE STATE AS A GUARDIAN OF SOCIAL INTERESTS: This category of his interests would merge or in other words would collide with the next set of interests. i.e., Social interests.

SOCIAL INTERESTS: It is one of the most important category of interests. The mainly include claims or demands or desires of a social life that are involved in a civilised society, promoting their own interests. Further classifying these interests:

  • SOCIAL INTEREST IN THE GENERAL SECURITY: “ The claim or want or demand, asserted in title of social life in a civilised society and through the social group, to be secure against those forms of action ad courses of conduct which threaten its existence ((Pound Jurisprudence III, p. 291)).” These interests are mainly related to the general safety and health of the individuals, maintenance of peace and order, security etc.
  • SOCIAL INTEREST IN GENERAL MORALS: “The claims or want or demand involved in social life in a civilised society to be secured against acts or courses of conduct offensive to the moral sentiments of the general body of individuals therein for the time being ((Pound Jurisprudence, III, P. 303)). This category involves all those elements involved in maintaining the morality in a society. This deals with aspects like prostitution, gambling, racing, homosexuality etc.
  • SOCIAL INTEREST IN INDIVIDUAL LIFE:“The claim or want or demand involved in social life in a civilised society that each individual be able to live a human life there in according to the standards of the society ((Pound Jurisprudence, III, P 311)).” This category involves those social interests that are required to promote the individual interests of the humans. They include aspects like various opportunities to the individuals, self -assertion and various other conditions of life.

Having classified these interests, Roscoe Pound, did not want a process of strict evaluation of these interests. Instead he was of the view that different interests will have an importance at different periods of time, and so they should be given preferential treatment accordingly.

HIS VIEW ON JUSTICE

Roscoe Pound has said that Justice can be administered with or without law. Justice with law means that the administration of Justice would follow a particular set of guidelines or rules and in this case, the individuals are all treated equally and are assured of getting a fair treatment in the eyes of law.

Justice without law means that the administration of Justice is according to the will of an individual, who uses his discretionary power in the decision-making. He does not have to follow any strict rules or guidelines of law for the administration of Justice. He also stated that the first form of Justice is of a Judicial character and the second form of Justice is of an Administrative character.

He further gave his view about a legal system and said that it should include both these elements in the administration of justice. He also points out that the problem with the legal system in the future, would be maintaining a proper balance between the above two elements of Justice which is very much required.

Natural Law School in Medieval Period

Aravind P, Student of Law, VIT Law School

The word ‘Natural Law’ is well defined and can be understood with ease in the medieval philosophy. The doctrine of the philosophers of this period had laid a foundation for the understanding of many concepts like natural law, theology, human reason etc.

Some principles which we find in this philosophy can be seen influencing the present modifications and changes we make. It can be used as a defense for the change.

The legal philosophy of the middle ages was mainly based on the doctrines of the bible and the concept of the Greek and Roman school. It started with the philosophy of St. Augustine. He gave his philosophy in the 3rd century. But it was rejected by the authorities of that time. Then later when the authorities were fed up by the rule of Benedict and his philosophy, Augustinian principle was adopted.

The medieval philosophy was a mixture of both religious faith and philosophical understanding. God was considered supreme at that time. When the philosophy started, it mainly focused on the divine law but towards the later part of the medieval period the philosophers started thinking on Natural law revealed through the reason of man.

Towards the end of the medieval period, rationalism gained importance. The power of the word ‘reason’ overthrew the concept of theology and principles of the church. It also opened the door to the concept of Nationalism.

WHAT IS NATURAL LAW?

In jurisprudence, the term natural law means those rules and principles which are considered to have emanated from some supreme source, other than the political authority. Natural law is famously identified with the slogan ‘lexiniusta non estlex’ which means an unjust law is not a law. The Natural Law theory postulates that law consists of rules that are in accordance with reason ((Fitzgerald P.J. (Ed.), Salmond on Jurisprudence, 12th edn., Universal Law Publishing Co. Pvt. Ltd., (1966) p.15.)).

Friedmann says that the history of natural law is a tale of the search of mankind for the absolute justice and its failure. Thus, with respect to the political and social changes in the society, the forms and notions of natural law keep changing. It has contributed a lot to the legal system. The main contribution of the Natural law theory is its ideology of a universal order governing all men and inalienable rights of the individual ((Friedmann, Legal theory, 5th edn., Stevens and Sons, London, (1967) p.43-45)).

Blackstone highlights the universal presence of natural law. He says that the natural law being co-existent with mankind and emanating from God himself is superior to all other laws. It is binding over all the countries, at all the times and no manmade law would be valid if it is contrary to the law of nature ((Blackstone, Commentaries on the Laws of England, Introduction, Oxford Publications, (1765-1769) p 39)).

According to Cohen, Natural Law is not a body actual enacted or interpreted law enforced by courts; it is in fact a way of looking at things and a humanistic approach of judges and jurists ((Cohen and Cohen, Readings in Jurisprudence and legal philosophy, (1951) p.660)).

There is no proper definition for natural law. Some jurists and philosophers have given their own theory of natural law.

Natural law has no written codes. It is considered eternal. It not so binding because it is not enforced upon anyone. The Natural Law is a theory from which all major governing concepts are derived. Natural law was the origin of some branches of law and it still derives the validity from it.

THE IDEA OF MEDIEVAL PHILOSOPHY

During the decline of the Greek-Roman civilization, a common concept was followed in the world, the concept which was filled with the teachings of the Fathers of the Church. Every philosophy which was related to law including science and investigation had a taste of the principles which was put forth by the Church and its authorities. But the concepts believed by the philosophers of the Greek-Roman period did not fade away after the decline.

The teachings of the Greek and Roman schools were combined with the principles of the Church and were followed during this period. Historians mark this period from the decline of the Greek-Roman period to the rise of the renaissance period. The theological and philosophical concepts were attempted to be read in accordance with the human natural reason for better understanding of the Christian philosophy.

Towards the end of the middle ages, the word ‘reason’ gained significance. It was an evolution of new ideas in all the fields. This renaissance period made ‘reason’ the foundation stone for all the theories which was coming up in the later period.

One of the recurrent themes of medieval philosophy was the celebrated dispute about “universals”, which had as its subject matter the question as to the character of our general ideas and their relationship to the particular objects existing in reality. Two chief schools of thought with respect to the solution, although within these schools radical as well as moderate view points were advanced and attempts were sometimes made to bridge the gulf between the most extreme positions on each side ((Jurisprudence, Edgar Bodenheimer, (1962) p. 27)).

As mentioned earlier the medieval philosophy consisted of the concepts of theology. This philosophy threw the light on the evil theory and the free will theory. The philosophers of that time also focused on these theories in accordance with their own philosophical understanding.

The concept of Scholasticism was also followed, where the philosophers said that the natural human reason should be used with philosophy to understand the complicated Christian principles.

MAIN FEATURES OF THE MEDIEVAL PERIOD

The middle age philosophy had some basic features which was the foundation stone for the theories which later came to the limelight.  The main features were as follows:

THEOLOGISM

This concept meant that everything and anything that happens around the world is believed to be determined by God, who was considered supreme. It is the study of the religious faith or ideas. It is also the study of God and God’s relation to the world. This was the main the theory which was being followed during the earlier period. And then this theory was read in combination with the philosophical understanding of the jurists.

THEOCENRISM

This concept meant that any problem, especially philosophical problems was studied in the context of God, because he was the ultimate concern. The people during that time were God-centric.

PERSONALISM

This concept dealt with the personality. God was considered as the absolute personality. God, who was the supreme power, was considered to be the role model for the creation of man.

THEODICY

This concept referred to the evil theory. Whoever contradicts to the theory of God, they were considered to be evil. That was the justice according to them.

GNOSTICISM

This concept said that the people who stick to this concept would get a secret knowledge of the divine realm.

PHILOSOPHERS RELATED TO THE MEDIEVAL PERIOD

Saint Augustine (354-430 A.D.)

Saint Augustine was born in North Africa and lived as a citizen of the late Roman Empire. It was Augustine’s conviction that in a golden age of mankind, prior to man’s fall, an absolute ideal of the “law of nature” had been realized. Men lived in a state of holiness, innocence and justice; they were free and equal; slavery and other forms of Dominions of men over other men were unknown. All men enjoyed their possessions and goods in common and lived as true brothers under the guidance of reason. Not even death existed at that period ((Jurisprudence, Edgar Bodenheimer, (1962) p.22)). The state is justified only as a means of keeping peace on earth. It must defend the church, execute its commands, and preserve order among men by enforcing the worldly law (lex temporalis). ((Id., II, 468 ff))The worldly law, in Augustine’s opinion, must strive to fulfill the demands of the eternal law. Even if the worldly law attempts to comply with the postulates of the lex aeterna and to accomplish justice in the relations of men, it will never attain the perfection of the eternal law. His definition of natural law speaks of a “common possession of all” and of universal liberty, contemplates partly the supposed “absolute natural law” of mankind’s early period, since at the time when Isidore of Seville wrote, neither communism nor the equal liberty of all men were realized either in his country or in others ((Jurisprudence, Edgar Bodenheimer, (1962) p.23)).

His philosophy was adopted in the middle ages. He said that both religious faith and philosophical understanding should complement each other rather than contradicting. Like all philosophers of that period, he also believed God as the supreme power. He emphasized on free will theory.

He believed in Dualism, the theory of body and soul. He said that soul animates and directs the body.

Otto Von Gierke (1841-1921)

Gierke was a German lawyer. He, in his book Natural law and the Theory of Society 1500 to 1800, gave his views on the medieval law philosophy. He said that there were two main fundamental principles which was existing during that period.

The fundamental principles were:

  1. Unity derived from God, involving faith, one church and one empire.
  2. Supremacy of manmade and God-made law as a part of unity of universe ((Gierke Otto, Natural Law and the Theory of Society 1500 to 1800, The Law Book Exchange (1950).)).

RENAISSANCE PERIOD

The period of renaissance marks a general awakening and resurgence of new ideas in all the fields of knowledge. Rationalism became the creed of the age . In the field of commerce it created new classes in the society which wanted more protection from the state. Colonization caused rivalry among states and it gave birth to the conception of nationalism. This also resulted in strong conception that state must have full sovereign powers

The supremacy of positive law overthrew the dominance of church, and new theories were developed. Reason is the foundation stone of all these theories- secularized reason and not theological reason. Those theories proceed from the supposition that a social contract is the basis of society. With renaissance and the rise of humanism, the natural law became open to rational inquiry free from its former religious connotations ((Jurisprudence I, Garima Tiwary, LexisNexis publications, p.56)).

CONCLUSION

Towards the end of the 14th century the philosophers brought in the concept of ‘reason’. The theological theory was fading away. Human reason threw away the church principles. The theory of reason made the state to have the full supreme powers. The human reason led the way to the revival period where all the philosophers were focusing on the human reason.

So, this medieval philosophy was the basic foundation for the application of human natural reason and this gave the idea to many philosophers to bring on their theories of natural law in the later period.

This Medieval period was a significant period which pushed rational inquiry for the upcoming years.

Philosophies of Savigny, History and Evolution of Theories of Law

Aishwarya Ganesan, Student of Law, VIT Law School

Natural Law Philosophers of the seventeenth and eighteenth centuries looked to ‘reason’ as a cicerone to attain ideal and the most perfect form of Law. They showed interest in the aims and purposes of law and not its growth and History ((Jurisprudence, Philosophy and method of the law, E. Bodenheimer, p. 70)).  Their desire was to formulate a new legal order based on principles of Liberty and equality which were eternal postulates of Reason and Justice. The works of the Historical Jurists was completely contrary to that of the Natural Law Philosophers, the historical school loathed Legislation and believed that rules should be laid down in a code engaging in Human reason alone. They laid emphasis on the mystical concept of a “national spirit” rooted in the traditions of a remote past.

Freidrich Karl Von Savigny German jurist and legal scholar who was one of the founders of the dominant “historical school” of jurisprudence. Savigny’s view of law was first introduced in his famous pamphlet “Of the vocation of our age for legislation and Jurisprudence” which was an answer to a proposal made by a professor of civil law, A.F.J Thibaut. He suggested that various German states should be unified with an effective codification of laws and customs adopted from Nepoleonic code and the Roman laws which was strongly criticized by Savigny. Savigny believed that law was not something that could be made ‘arbitrarily’ or ‘deliberately’ by a Lawmaker. Savigny viewed Law as a slow and unobtrusive growth that is formed in the same way as language is. He said Legislation and codes can get verbal expression whose meaning can be found only through Historical research.  It is not something backed on the personal whim or the random choice of the individual. Instead he firmly considered Law as a product of “internal-silent operating forces ((Of the Vocation of our ages for legislation and jurisprudence, transl. A. Hayward (london1831), p. 30)).”

It was deeply embedded in the thoughts, behavior and culture of the people, in the past of the nation and its truest sources were ‘popular faith’; ‘customs’; and the “common consciousness of the people ((Jurisprudence, Philosophy and method of the law, E. Bodenheimer, p. 71)).” Like language, he said, the constitution and law above all was determined by the “peculiar character of a nation” that is, its “National spirit” [Volksgeist] ((Savigny, system des Heutigen Romichen Rechts (Berlin, 1840), I, 14))According to Savigny, nature of any particular system of law is the reflection of the spirit of the people who evolved it. Hence the simple term Volksgeist meant, “Common consciousness of the people.” in his opinion, law was a product of the general consciousness and manifestation and a channelizing force of the spirit of the people. He says, “Law grows with the growth of the people, strengthens with the strength of the people, and finally dies away as the Nation loses its individuality ((Legislation and Jurisprudence, p. 27)).” Puchta, Savigny’s disciple agreed that the origin of law was out of the spirit of the people. His research on the origin of law made him conclude that, the most authentic pronouncement of the common conviction of the people was customary law which he considered to be something far superior to Legislation. He considered Legislation useful only due the fact that it contained the existing National customs and usages.

Historical Jurists thus looked into the past laying emphasis on the silent operating forces which got its national character due to the traditions of the past.

However, several commentaries were made on his concept of Volksgeist.

  1. There is an essential part of truth in his wide an abstract concept, there is an out flux continuity, and tradition, but the problem lies in making it at par with precision. The concept of Volksgeist is applicable only in a limited and restricted way. The Volksgeist theory reduces the capacity to have an effect on individuals of alien race have applied on legal development.
  2. Many organizations have originated in an Oligarchy and not in a Volksgeist. E.g. Slavery
  3. Many customs owe their source to the power of imitation instead of any innate and congenital conviction of their righteousness.
  4. Some rules of customary laws fail to reflect the whole and entire spirit of people. It is not clear as to whom the Volk or the Geist according to Savigny is the creator of these laws.
  5. Principal rules of customary law sometimes develop as the result of conscious and violent struggle between conflicting interests within the nation, and not as a result of Imperceptible growth e.g. Laws relating to trade unions or Industry ((Dias, Jurisprudence, p.381)).

Savigny hence had a huge and lasting contribution to the Historical School of Jurisprudence, particularly in revealing the continuity of present legal institutions with past ones; in laying the foundations of legal sociology; and in developing many of the critical methods that are now used by legal scholars everywhere. Historical jurisprudence opposed not only attempts at codification but also those rationalist thinkers who sought to derive legal theories from general and universal principles without respect to the characteristics and customs of a particular people ((Available at http://www.britannica.com, last seen on 3rd December, 2014 , 8.12p.m)).

Does the common law judge have the same discretion as a legislator in making law in “gaps”?

Naveen k. Jain, 3rd year student of Jindal Global law School

Hart talks about his theory of secondary rule. He says that the secondary rule is one which authorises the primary rule. Secondary rules neither prescribe any punishment, nor the violation of secondary rules generally lead to any punishment.

He divided his secondary rules into three sub categories i.e. rule of recognition, theory of adjudication, and rule of change. He says that in a legal system, there will always be some gaps in between the rules and to fill these gaps and to create better system, judges can interpret the existing laws, in such a manner, that the gaps in between rules can be filled.

In rule of adjudication judges can interpret the law; they can make the principles which are not in existence to suit the needed-out come for society.

Discretionary powers v/s Power based on existing principles and Policy

On the other side, Ronald Dworkin opposes Hart and says that in common law system, judges can only interpret the law but they cannot become the ultimate source of law making process. Judges will have to abide by the principles which are already present in system. According to him, Principles are not made by the judges; it has to come from the legislature. Judges just interpret law on the basis of existing legal principles.

Dworkin also demanded that judges respect the idea of the democratic mandate so far as policy-making is concerned, and leave matters of policy wherever possible to the elected legislature.

Hart propounded the “open texture rule” under which he says that the judges have discretionary powers to interpret the laws as they wish. Also, Hart strongly insist that judiciary should have discretionary powers as, judges may also face a situation where there is no standard principle and then they would need to use their discretionary powers to suit the need of contemporary word.

The law is reduced to a kind of a lottery

Dworkin opposes Hart and says that if judges are given discretionary powers in common law system to interpret the law as the legislators, the law then be reduced to a kind of lottery. Judges will then be in a situation to decide and impose the punishment as per their own will.

Policy and Principle v/s Discretion

Dworkin also demanded that judges respect the idea of the democratic mandate so far as policy-making is concerned, and leave matters of policy wherever possible to the elected legislature. He thus drew a distinction between principles and policies, though conceding that most principles could be framed as policies and most policies as principles by anyone so inclined.

A policy, he said, is a standard setting out a goal to be achieved, usually in terms of the economic, social or political well-being of the community. A principle, on the other hand, sets individual rights above communal well-being and imposes a standard of justice or fairness or some other moral dimension.

Dworkin argues that the judges tend to agree with this view at least in what they say. Questions of social policy should better be left to Parliament, and it is not for judges to interfere in such matters.

Applicability of both the theories

In common law countries both the theories have been seen to have found their place in applicability. If Hart’s theory of adjudication is considered where judges have full discretion and they can make policy and principles, we will have to look at the Vishaka v. State of Rajasthan, in which Supreme Court had stepped into the shoes of legislatures and released some guidelines for the safeguard of women at workplace. Though Supreme Court held that such guidelines will remain in force until legislature passes a suitable law, but it shows that, when there is no standard policy for certain thing, judiciary may take the driving seat to interpret the law and make policy and principles.

It is important to understand that judiciary is one of the pillars of any system in common law countries. It is always sought from the main functioning institutions to do not intervene or interfere in the functioning of another institution such as: – legislature.  But still, there are certain things in which judges can take their discretionary decisions. Tort law is basically a judge made law and it is completely interpreted by the judges. The principle of neighbourhood is also evolved through judicial decision in Ryland v Fletcher case. But there is also a doctrine of precedents which says that judges are themselves bound by their own previous decision. This ultimately suggests that even though the judges enjoy certain type of discretionary freedom, they themselves will have to abide by their own precedents.

Tracing official bias from Gullapalli to Doctrine of necessity

Palak Gupta, Student of Law, Gujarat National Law University

It is the spirit and not the form of law that keeps justice alive.  ~ Earl Warren.

Natural Justice is an important concept in administrative law. In the words of Megarry, J. ((John v. Rees, (1969) 2 All ER 274: (1970) 1 Ch D 345))it is ‘justice that is simple and elementary, as distinct from justice that is complex, sophisticated and technical.’ It is ethico- legal principle. The origin of this principle is from the case of king v. Chancellor where Justice Fortescue held that first hearing of human history happened in heaven in Garden of Eden. Even God himself gave the opportunity of hearing to Eden. Principles of Natural Justice are the law evolved along with the history of human. P.N. Bhagwati in the case of Maneka Gandhi v. UOI held that principles of Natural Justice are a universal law. It has been termed as fair play in action in case of Re K. (H)(an infant) by Lord Parker.

Principles of Natural Justice are based on two maxims Audi Alteram Partem and Nemo Judex in causasua. Courts are bound to follow these principles while giving judgment. Audi Alteram Partem means hear the other side. The principle of Nemo judex in causasua means that no person should be judge in its own cause.It means that an adjudicator should be disinterested and unbiased. Literally it means that no person should be judge in his own case. It means that justice should not only be done, but should also seem to be done. Bowen J. “ judges like Ceasar’s wife should be above suspicion”.

Bias may arise either due to pecuniary interest or personal interest. However small a pecuniary bias is, it should disqualify the judge from being a member of the tribunal. Personal bias may arise due to blood relations, marital relations, friendship or hostility. For this principal it is necessary to prove that there is a real likelihood of bias.

Official bias is the most impersonal kind of bias. The administration itself is usually a party in many departmental proceedings before bureaucratic authorities. Therefore, an authority may have official bias towards the department to which it is attached, in a dispute between the department and a private party, or may have a policy bias. His bias may be regarding pursuing the policy, which is followed by his department. So when an official acts as an adjudicator he can’t completely shed off his bias, nor can he be said to be totally impartial or neutral. The difficulty, which arises in this situation, is whether the official is to be disqualified from acting as an adjudicator because of policy bias. Exception to official bias is the Doctrine of Necessity.

English law: just a mere interest a minister has in a scheme would not disqualify her on the ground of bias. This was held in Franklin V Minister of town and country planning.

Indian Law- the principal accepted in India is that a mere official or policy may not necessarily be held to disqualify an official from acting as adjudicator. The criteria for him to be disqualified is that there is total non-application of mind on his part or he would have acted according to the directions given to him by his superior authority and has not decided the matter independently.

The present case of Gullapalli Nageshwara Rao is based on the question of inquiry. Whether the element of official bias can be seen when the minister being head of the department gave the hearing and approves the scheme?

Inquiries: Inquiry is to be held by the concerned authority before taking a decision, it may happen that one body makes the inquiry and, on its report, some other authority takes a decision. In such a case, the inquiry body has no power to decide, nor the inquiry report has any binding force by itself. But the inquiry report constitutes an important link in the chain of decision-making process.

A Question which in such case arise is whether an inquiry under a specific statute is administrative or quasi judicial in nature? Some inquiries have been held to be administrative and some quasi-judicial requiring application of the principles of natural justice.

Facts:

In India, the SC dealt with the question of official bias in this case. The facts of Gullapalli Nageshwara Rao v AP State Road Transport Corporation ((AIR 1959 SC 308,(1959) SCJ 967)), which is known as first Gullapalli case, are as follows: the petitioners were carrying on motor transport business for several years in Krishna district of Andhra Pradesh. The state transport undertaking published a scheme for nationalization of motor transport in the state from the date to be notified by the state government. It invited objections to the scheme. The petitioners, among others filed their objection to the scheme. The secretary of transport department gave a personal hearing to the objections and heard the representations made on behalf of the state transport undertaking. The entire material gathered by him was placed before the Chief Minister who approved the scheme. The approved scheme was subsequently published.

Procedural history

The petitioners assailed the constitutional validity of scheme under article 32 of the constitution before the SC on various grounds. The SC upheld the objections and quashed the order approving the scheme.

Contention by the One of the objections was that, the person who had initiated the scheme had also heard the objections. He was therefore, biased in favor of scheme, and hence could not have given fair hearing.

The court held that the hearing given by secretary clearly offended the principles of Natural Justice and, hence the proceedings involving the hearing were void. Another objection the court upheld was that since the hearings were held before one person and another gave the final decision, the rules of Natural Justice were violated. The majority held that since the ultimate decision taken after hearing both the sides was quasi judicial in nature, the functions of hearing and deciding could not be vested in two different persons.

Subsequent amendments

Under the amend act, a minister was required to decide upon a scheme. In Nageswara Rao v Andhra Pradesh ((AIR 1959 SC 1376, (1960) SCJ 53)), which is known as second Gullapalli case the competency of minister to give the hearing was challenged.

Appeal under article 226 of the constitution: Appellants moved to High Court for writs of certiorari to quash the order passed by the Government confirming the scheme and also to quash the subsequent orders made by the Regional Transport Authority canceling their stage carriage permits. HC rejected the petitions and appellant appealed.

Issues

  1. Whether a statute confers power on authority and imposes a duty on it to be a judge of its own cause or decide a dispute, which has official bias, the doctrine of bias is qualified to the extent of the statutory authorization?
  2. Whether the State Government, in the present case, acted in violation of the principles of Natural Justice?
  3. Whether the Chief Minister by his acts and speeches disqualified himself to act for the State Government in deciding the dispute?

Petitioner’s contention

  1. The chief minister who was in charge of transport department was incompetent to hear the objection as the same disability is attached to him, which was attached to the Secretary in charge of the Transport Department on the previous occasion.
  2. The Chief Minister by his acts, such as initiating the scheme, and speeches showed a clear bias in favor of the Undertaking and against the private bus operators and therefore on the basis of the principles of natural justice accepted by this Court, he was precluded from deciding the dispute between the said parties.
  3. Any kind of bias, whether financial or other, for or against any party, or any position that might impute bias, in a judicial authority, must disqualify him as a judge. But when a State Legislature or the Parliament violates the aforesaid principals, such statute, unlike one passed by the English Parliament, has to stand scrutiny in the light of the fundamental rights enshrined in the Constitution.

Respondent’s Contention (Advocate General)

In this case he tried to distinguish between “official bias” of an authority, which is inherent in a statutory duty imposed on it and “personal bias” of the said authority in favor of, or against, one of the parties.

The Chief Minister of the Government cant be disqualified from deciding the dispute merely on the fact that he had supported the policy of nationalization, or even the fact that the Government initiated the said scheme unless it was established that he was guilty of personal bias, and however there was no legal proof establishing the said fact.

Principle accepted by counsel for both the sides

If a member of a judicial body is bias, it may be financial or any other in favor of, or against, any party to a dispute, or is in such a position that there is a likelihood of bias he ought not to take part in the decision or sit on the tribunal and that any direct pecuniary interest, however small, in the subject-matter of inquiry will disqualify a judge, and any other interest if a reasonable suspicion of bias can be ascertained. These principles are applicable to quasi-judicial bodies too.

Judgment

 The judgment was delivered by Justice Subba Rao.

1. Regarding the first issue court referred two cases The King v Bath compensation and the king v Leicester Justices.

The decision in the first case was that unless the legislature clearly and expressly ordained to the contrary, the principals of Natural Justice can’t be violated. These decisions showed that in England a statutory invasion of the common law objection on the ground of bias is tolerated but invasion has to be strictly in conformity with the statutory exceptions. However in India, the law made by parliament or state legislature should be in concurrence with he fundamental rights, which are declared in part III of the constitution.

2. The question regarding that the chief minister acted in violation of natural justice, court rejected this argument mainly on two grounds:

  1. Since the appellants never raised the question regarding the competence of the Chief Minister to decide the objections on the last occasion and the court on that basis gave judgment. So now it is not open for petitioners at this stage to reopen the closed controversy or take a contrary position. It was also held that the minister was competent to give hearing even though he was the formal head of the transport department.
  2. There are no merits in this contention. It was held that there is a distinction between the position of a Secretary of the Department and the Chief Minister of the State. Under the constitution governor is to act on the advice of ministers headed by Chief Minister.

Under the constitution and the rules framed minister who is in charge of a department is primarily responsible for the disposal of the business pertaining to that department, but the entire ministry is responsible for the advice to the minister. But the position held by the Secretary of a department is different.

Though the Chief Minister made the formal orders, in effect and substance, the enquiry was conducted and personal hearing was given by one of the parties to the dispute itself. So the argument of the counsel that the Chief Minister is part of the department constituted as a statutory Undertaking under the Act cannot be accepted.

3. Whether the Chief Minister by his acts and speeches disqualified himself to act for the State Government in deciding the dispute?

It must be held that it has not been established by the appellants that the Chief Minister made the speeches indicating his closed mind on the subject of nationalization of bus transport in Krishna District. If these newspaper cuttings are excluded from evidence, the factual basis for the appellants’ argument disappears. We, therefore, hold that the Chief Minister was not disqualified to hear the objections against the scheme of nationalization.

Ratio:

In this case, the Supreme Court has clearly voted against the separation between the hearing and the decisional functions. Said the court, “if one person hears and another decides, the personal hearing becomes an empty formality ((I.P. Massey, administrative law (6th ed. 2003).)).” The Supreme Court decision emphasized on the fact that one who decides must hear.

Minority view

Sinha, CJ in his dissenting opinion, gave several reasons for his view that the function discharged by the government was administrative. First, no objective tests have been laid down for the consideration of the government, such terms as efficient, adequate, public interest, were matters of policy and opinion. Second, the idea of hearing prescribed by the statute was not to invite claims by the individual operators, but to collect information having a bearing on soundness and feasibility of the scheme. Third, the government was as much interested in the scheme as the undertaking, which was the creature and the limb of the government, and, therefore, there was no question of the government functioning as an adjudicating authority between the two rival claimants ((MP Jain & SN Jain, principles of administrative law(5th ed. 2007).)).

Criticism

It has been criticized primarily on the ground of impracticability in the modern administrative process.

A scholar pointed out that it is unrealistic to expect the CM to give the time required for a public hearing, which could adequately explore all facts and policy issues involved and permit all interested parties to appear. On the other hand, if the entire delegation to subordinate official conducting the hearing is given, the importance of the ultimate question may be highly undesirable, perhaps even unthinkable. Thus a government is faced with a dilemma whether the official with final deciding authority must himself conduct the hearing or unduly delegate a power of decision, which should be retained by the Chief Minister, or of seriously interfering with other duties of the Chief Minister.

The Gullapalli decision is not in concurrence with the governmental practice, and is also difficult to follow. The judicial view on this point remains ambiguous.

Subsequent cases in which exception was made to official bias by applying Doctrine of Necessity

In this case SC has made an exception to official bias. Here SC has made an exception by impliedly using doctrine of necessity. It has got expressed approval in subsequent cases from the courts, namely Ashok Kumar Yadav v State of Haryana (([1985] 4 SCC 417)), Tata Cellular v. UOI (([1994] 6 SCC 651)), and Election Commission of India v Dr. Subramanian Swamy (([1996] 4 SCC 104)).

In the case of Ashok Kumar Yadav v. State of Haryana, the State Public Service Commission did the decision about the selection process. This was challenged as according to Sec 3 (11) member of PSC by constitutional requirement has to mandatorily sit in the election process. The issue in this case was if the relative of member comes then is the selection process vitiated? SC held that even though bias is attracted in this case, but if the member doesn’t sit in the selection procedure then it would be unconstitutional as it will be in violation of Section 3(11) of the Act. SC by applying doctrine of necessity expressly declared that it is an exception to official bias. Reasonable suspicion of bias can be excluded if no substitution is possible.

In the case of Tata Cellular v. UOI, there was a tender for giving license for operating cellular mobile in 4 metros. The acceptance of tender made by evaluation committee has been challenged on the ground of bias. Director General of Telecommunication is the technical member of evaluation committee. His presence is required in evaluation of tender. His son who is working in one of the company has applied for license. So the committee has issued license to the son, the bias is thereby alleged. SC held that there is a remote bias. Bias in this case is not accepted. Here doctrine of necessity is applied, as no substitution is possible.

However it got a narrow view in the case of Election Commission of India v. Dr. Subramaniam Swamy. In this case it was held that mere necessity is not sufficient, but absolute necessity is required. Jayalalita was convicted in relation to land cases. Subramaniam who was a political opponent wrote a letter to Governor seeking for disqualification of Jaylalita by virtue of Article 191. Governor can act only on the basis of recommendation of Election Commission, so he referred the matter to EC. Jaylalita moved to HC, which held that EC can’t decide the matter, as there is personal bias because of friendship between EC & Subramaniam. Appeal was filed to Division Bench of HC. It held that single bench has erred in its decision. Appeal was filed to SC. SC agreed that there is chance of personal bias, but held that EC being 3 member body, constituting of CEC and 2 other members. So even if CEC is not present the other 2 members can decide the matter. But if there is division of opinion between the two members then only CEC will be called to decide the matter, only in case of absolute necessity.

Conclusion

This case is noteworthy as the Supreme Court made an exception by rejecting official bias and impliedly applied the doctrine of necessity. The doctrine of necessity got express approval in the case Askoh Kumar Yadav v State of Haryana, 1987. Further, the doctrine of absolute necessity was applied in the case Election Commission of India v.  Dr. Subramaniam Swamy, 1996.

Since Gullapalli I, the SC has continuously diluted the stance, which it has adopted in this case. For instance in Gullapalli II the court didn’t object to the procedure that the minister heard the objections in place of secretary, as he was not a part and parcel of the department, which is concerned in making the policy. According to the court, secretary is a part of department while the minister is only primarily responsible for the disposal of the business pertaining to that department. In subsequent cases the Supreme Court appears to have further relaxed its attitude on matters regarding disqualification, which arises from policy bias, and the court has shown a further liberal approach in this respect from the departmental point of view.