RAMJI ACHARYA

The Doctrine of Necessity: Constitutional Dilemmas and Democratic Implications

The Doctrine of Necessity is a legal and constitutional principle allowing extra-legal or even illegal actions by a state authority to be deemed lawful if they are taken in order to preserve order, stability, or the survival of the state in an emergency.

This article examines the evolution of the doctrine, its application in comparative jurisdictions, critiques regarding its legitimacy, and its implications for emerging democracies such as Nepal. It argues that modern constitutional frameworks must prioritize codified emergency provisions over extra-legal doctrines to ensure democratic stability and constitutional supremacy.

Key Points Overview

1. Origin

Rooted in Roman law and the maxim “that which is otherwise not lawful is made lawful by necessity”. It has been invoked in various countries, especially in constitutional crises, to justify exceptional measures.

2. Core Idea

When no legal solution is available, and a state faces a crisis that threatens its very existence, extraordinary actions (even if unconstitutional) may be justified as a temporary remedy. It is often used to validate emergency actions such as suspension of normal constitutional processes, coups, or caretaker governments.

3. Use in Case Law

Pakistan: The doctrine has been most famously used by the Pakistani judiciary to validate military coups (e.g., in 1954, 1958, 1977, and 1999).

International law: It is sometimes referenced in cases of state necessity, like breaking treaties or taking actions in wartime.

4. Criticism

• It can legitimize authoritarianism and undermine constitutional supremacy.
• Overuse weakens democratic institutions by creating a precedent for unconstitutional acts.

5. Modern Perspective

Most modern constitutional thinkers reject the doctrine as an excuse for illegality. Instead, constitutions now usually provide in-built emergency provisions, reducing the need to rely on this doctrine.

Detailed Analysis

1. Introduction

The Doctrine of Necessity represents one of the most controversial intersections of law and politics. It raises fundamental questions about constitutionalism, rule of law, and the limits of state authority in times of crisis. While the doctrine has occasionally provided a pragmatic response to constitutional deadlocks, it has more often been criticized as a judicial tool that legitimizes authoritarianism. This article seeks to critically analyze the doctrine’s origins, applications, and relevance in contemporary constitutional discourse.

2. Historical and Jurisprudential Origins

The maxim necessitas non habet legem (“necessity knows no law”) can be traced back to Roman law, where necessity was considered a defense against otherwise punishable actions. In common law, the doctrine developed through judicial recognition of necessity as a defense in both criminal and constitutional contexts.

The English jurist Sir William Blackstone acknowledged necessity as an exception to rigid legal application. Later, constitutional theorists expanded this principle, suggesting that extraordinary circumstances may require departures from established constitutional norms.

Dicey, 1885

3. Applications in Comparative Jurisdictions

3.1 Pakistan

Pakistan offers the most prominent case law on the Doctrine of Necessity. The judiciary repeatedly invoked it to validate extra-constitutional actions:

• Federation of Pakistan v. Maulvi Tamizuddin Khan (1955): The dissolution of the Constituent Assembly was upheld.
• State v. Dosso (1958): The coup by General Ayub Khan was validated, establishing that revolutionary legality could justify the disruption of the constitution.
• Begum Nusrat Bhutto v. Chief of Army Staff (1977): Martial law under General Zia-ul-Haq was legitimised.
• Zafar Ali Shah v. General Pervez Musharraf (2000): Musharraf’s coup was endorsed on grounds of necessity. These precedents entrenched military dominance and weakened parliamentary supremacy.

3.2 Other Jurisdictions

• Grenada (1985): The Privy Council upheld actions taken during a constitutional vacuum.
• Nigeria & Uganda: Courts applied the doctrine to justify political transitions outside constitutional frameworks, albeit with long-term democratic costs.

4. Critiques of the Doctrine

1. Undermining Constitutional Supremacy

   Judicial endorsement of unconstitutional acts compromises the principle of constitutional supremacy, creating a dangerous precedent.

2. Facilitation of Authoritarianism

   The doctrine has frequently been a judicial shield for military regimes, particularly in South Asia and Africa.

3. Doctrinal Ambiguity

   The scope of “necessity” is undefined, leaving room for arbitrary interpretation and political misuse.

4. Democratic Erosion

   By legitimising extra-legal measures, the doctrine discourages reliance on constitutional remedies and weakens democratic institutions.

Warning!
The overuse of the Doctrine of Necessity significantly weakens democratic institutions and sets a dangerous precedent for unconstitutional acts.

5. Modern Constitutional Alternatives

Contemporary constitutional design has largely moved away from reliance on the Doctrine of Necessity. Instead, states have incorporated explicit emergency provisions into their constitutions:

• Procedural safeguards: Parliamentary approval of emergency declarations.
• Temporal limits: Sunset clauses ensuring emergency powers are temporary.
• Judicial review: Courts retain oversight to prevent abuse of emergency powers.

Such mechanisms balance flexibility with legality, making extra-legal doctrines redundant.

6. Policy Implications for Nepal

In Nepal, where constitutional democracy remains fragile, the doctrine poses particular risks:

• Potential for Abuse: Invoking necessity could justify unconstitutional dissolution of parliament or military involvement in politics.
• Institutional Weakness: Over-reliance on extra-legal principles undermines faith in constitutional institutions.

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Recommendations for Nepal:

• Strengthen emergency clauses with precise limits.
• Enhance judicial independence to prevent political manipulation.
• Promote a constitutional culture that rejects necessity as a legitimate doctrine.

7. Conclusion

The Doctrine of Necessity remains a contested concept in constitutional law. While historically invoked to address extraordinary crises, its legacy reveals a consistent pattern of legitimizing authoritarianism and undermining democratic order. Modern constitutionalism demands a rejection of extra-legal doctrines in favor of codified emergency mechanisms subject to checks and balances. For Nepal and other emerging democracies, safeguarding constitutional supremacy must take precedence over appeals to necessity.

References

Blackstone, W. (1765). Commentaries on the Laws of England. Oxford: Clarendon Press.
Dicey, A. V. (1885). Introduction to the Study of the Law of the Constitution. London: Macmillan.
Federation of Pakistan v. Maulvi Tamizuddin Khan, PLD 1955 Federal Court.
State v. Dosso, PLD 1958 SC 533.
Begum Nusrat Bhutto v. Chief of Army Staff, PLD 1977 SC 657.
Zafar Ali Shah v. General Pervez Musharraf, PLD 2000 SC 869.
International Law Commission (2001). Draft Articles on Responsibility of States for Internationally Wrongful Acts. UN Doc. A/56/10.
Subedi, S. P. (2017). The Constitution of Nepal: Context, Issues and Comparative Perspectives. Routledge.