Essay Question No.

2:

Identify one Supreme Court judgment that you either agree or disagree with. Explain why
and specify the improvements you would make to it (if you agree), and what it should have
been (if you disagree). [500 words]

Doctrine of necessity is a basis on which the actions of administrative authority which might be
classified as extra-constitutional are considered permissible for the purpose of attaining power or
to ensure stability. On these grounds the actions are considered lawful which are unlawful
otherwise. This doctrine is based on a maxim by Henry De Bracton which states “that which is
otherwise not lawful is made lawful by necessity”. This can be translated into simpler terms as
the actions which are otherwise unlawful or criminal maybe termed as legal under extenuating
circumstances.

Federation of Pakistan v. Maulvi Tamizuddin Khan (1955) is a most prominent case of

(former) Federal Court of Pakistan, now known as Supreme Court of Pakistan. This case is still
taught in Law Schools and repeatedly mentioned in Legal textbooks due to the precedent it had
set. In a controversial 1954 judgment Chief Justice of Pakistan Muhammad Munir validated
the use of emergency powers extra-constitutionally by the Governor General Ghulam
Muhammad. Only one Justice of the entire bench gave dissenting opinion rest of the justices
supported the dismissal on the grounds of necessity and the Roman law maxim urged by Ivor
Jennings, “The well-being of the people is the supreme law”.
This Precedent as set by the Apex court of that had long-lasting damaging effects on the
constitutional supremacy even decades later. It paved the way for military coups in the future,
this precedent opened gates for a series of unavertable circumstances. It was a constitutional
disaster; this decision not only damaged the constitutional integrity but mutilated it. The doctrine
of necessity was a defense used in another prominent case Regina (Queen) V. Dudley and
Stephens (14 QBD 273), being a leading criminal case. Offers a great insight in the Doctrine of
necessity where the distressed sailors Stephen and Dudley, who were in an accident when their
ship drowned murdered and ate their cabin boy named parker and claimed later that it was done
in outmost necessity.

Murder is not only a crime but is also considered a moral wrong in almost all the states of the
world. Even the act of murder was unjustified even if done under outmost necessity; it is safe to
that surpassing the Supreme Law of the Land (Constitution) was a more severe crime. The
court held in R v. Dudley that the captain and the crew of the ship were guilty of murder, and
sentenced Stephens and Dudley to death. The court further argued that the necessity of hunger
does not justify larceny, let alone murder. Stephens and Dudley chose the weakest and youngest
to kill and it was not more necessary to kill him than any of the other grown men.