Necessity: General Exceptions

Intro-
Chapter IV of the IPC provides for ‘general exceptions’ where the law grants exculpatory
rationale for excusing certain people even though their act constitutes an offence. Such acts are
considered justifiable under the eyes of law as the accused had a good and legal reason for
committing the offence thereby exonerating/exempting the accused from the criminal liability.
The law presumes that there are certain situations where the acts are justified on account of the
meritorious considerations though the act is committed with the requisite mens rea. It is a
common proverb that ‘Quod necessitas non habet leegem’ meaning necessity knows no law.
Section 81 of the Indian Penal Code, 1860 (hereinafter IPC) encapsulate the doctrine of necessity
which provides that the person is absolved of the criminal charge in respect of the act committed
under compelling circumstances when he is faced with two dangers and is excused to commit the
lesser harm. The law excuses for the willful wrong-doing which would otherwise punishable
under normal circumstances. The defense of necessity is based on the maxim ‘salus populi
suprema lex’ meaning ‘Welfare of the people is supreme law’
Following are the essentials ingredients of section 81-
- There must be compelling situation and the criminal act must be done without criminal
intention.
- The act is committed to prevent or avoid causation of greater harm to the person or
property.
- The act committed must be done in good faith
Under Section 81, though the act is done without criminal action yet the wrong-doer has the
knowledge that he is likely to cause harm. The explanation of the said section makes it clear that
the justification of the harm caused and whether it should be excused or not is a question of fact
to be decided in each case.
In the famous case of Regina v. Dudley and Stephens (1884), where Dudley and Stephens killed
the cabin boy to survive, the Court said that deliberate killing of man cannot be justified by
necessity. Self-preservation is not an absolute necessity and no man has the right to take other’s
life to preserve his own unless it is under self-defense. For example, if two ship wrecked persons
are clinging to a plank not enough to support both and the stronger one pushes the other, he is
free from criminal liability as it was an impulsive act to save oneself in the imminent situation
and the other one is simply left on his destiny.
Necessity does not justify private homicide even though done in public necessity. In the case of
U.S. v. Holmes, Holmes a member of the crew threw overboard 16 passengers, the accused,
though not convicted for murder, was convicted for manslaughter as the act was illegal and
unjustified.
Apart from Section 81, Section 92 of the IPC also contemplates the situation of necessity
wherein the act is done in such an extreme situation that neither it is possible for the person to
signify consent, nor is there anyone to signify consent on his behalf. In such a situation,
immunity is granted u/s 92 IPC, to the class of persons who might cause harm during the course
of performing surgical operations etc. without consent provided the act is done in good faith and
for the benefit of the said person.
Section 81 and Section 92 of IPC thus excuses one from criminal liability when faced with the
situation of necessity however, it should be kept in mind that not every necessity can be ground
for the defense of necessity unless fulfills the requisite essentials of the abovementioned sections.
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