CCI can get around quorum by applying ‘doctrine of necessity’: Experts

Subject: Polity

Section: Constitution framework

Concept:

With the Competition Commission of India (CCI) continuing to be headless and quorum-less for the last three months, putting approval of M&A deals on hold and potentially derailing PE/ VC and FDI flows, legal experts have suggested that CCI invoke ‘doctrine of necessity’ to overcome the requirement of quorum.
As per the Competition Act, 2002, CCI can transact its business through meetings provided the quorum of such meetings has to be a minimum of three members.
Currently, CCI only has two members and the senior most member is also acting as Chairperson.

Doctrine of Necessity

The doctrine of necessity is the basis on which extra-constitutional actions by administrative authority, which are designed to restore order or attain power on the pretext of stability, are considered to be lawful even if such an action contravenes established constitution, laws, norms, or conventions.
This doctrine is originated from the writings of the medieval jurist Henry de Bracton, and similar justifications for this kind of extra-legal action have been advanced by more recent legal authorities.
However, the said doctrine can only be invoked in certain situations wherein if the doctrine is not invoked, then it would lead to the total termination of the matter thereby causing greater harm.
Further, the said doctrine cannot be applied in every case, i.e., the Hon’ble Supreme Court stated that the said doctrine can only be invoked in case of absolute necessity.