Appellant, Dr Subramanian Swamy had filed a writ of prohibition prohibiting the Election

Commission from dealing with, hearing, adjudicating upon or disposing of the Memorandum.
A writ of declaration was also requested before the Learned Single Judge to declare that the
Appellant had not incurred the alleged disqualification under Art. 191(1)(e) of the
Constitution of India read with section 9-A of the Representation of the People Act, 1951.
The judge held that the appellant was justified in her apprehension of likelihood of bias on
part of the Election Commission. The judge also upheld that the Election commission had no
jurisdiction to go into the question of alleged disqualification.

The appellant before the division bench raises 3 questions for decision in the writ appeal.
They are:
1. Whether the Single Judge is justified in going into the question as to whether the
appellant has becomes subject to the disqualification in terms of Art. 191(1) of the
constitution read along with section 9 of the R.P Act, 1951?
2. Whether it can be held that the apprehension of bias entertained by the appellant that
Dr. Roxna S. Swamy is not likely to get a fair and unbiased decision at the hands of
the Chief Election Commissioner is reasonable?
3. Whether the Doctrine of Necessity is attracted in the light of the insertion of Ch. III in
the Chief Election Commissioner and Other Election Commissioners (Conditions of
Service and Transaction of Business) Act, 1991?

The Division bench after hearing the issues and arguments of both sides held that:
1. The Learned Single Judge should not have gone into the question of disqualification
when the issue was already pending before the Election Commission under Art.
192(2) of the Constitution of India. Article 226 of the Constitution of India empowers
the High Court to review the decision of the Election Commission. This does not
mean that the High Court can embark upon deciding the question by itself without the
Election Commission’s opinion on the issue. The constitution specifically provides
for challenging the validity of an election by way of an election petition and Art. 329
bars interference of courts in election matters. Though the scope of Art. 226 is not
restricted to fundamental rights guaranteed under Part III of the Constitution and can
be used for other purposes, it cannot be exercised to overcome the exclusive
jurisdiction conferred on a specific constitutional authority (in this case the Election
Commission) to decide a particular question that is raised.
2. The division bench upheld the decision of the Single Judge stating that the
apprehension of bias is reasonable and well founded. The question of bias depends on
the facts and circumstances of the case as to whether the bias attributed to a judge or
tribunal or a quasi-judicial authority is made out. The Election Commission is a quasi-
judicial body and therefore, it is required to act free from bias and decide the case in
conformity with law, justice and fair play.
3. The Doctrine of Necessity arises in the case of bias, when the judge has exclusive
jurisdiction to try the same and non-availability of another judge or tribunal to decide.
The doctrine as the name suggests is evolved out of necessity to prevent failure of
justice by enabling the Judge, even though he/she is not qualified on the ground of
bias, to adjudicate. Therefore in view of the appointment of two election
commissioners and in light of the provisions contained in the sections 9 & 10 of the
1991 Act, the Doctrine of Necessity cannot be applied to the present case.