RAJIV GANDHI NATIONAL UNIVERSITY OF LAW, PUNJAB

CRIMINAL LAW (SUBSTANTIVE)

ASSIGNMENT

THE DEFENCE OF NECESSITY: THE RIGHT TO CHOOSE THE LESSER EVIL

(With reference to the of Necessity & Self-defence)

SUBMITTED TO SUBMITTED BY
DR. IVNEET WALIA PRANAV TOMAR
ASST. PROF. OF LAW SECTION: A (18006)

RGNUL, PATIALA GROUP: 2

DATE OF SUBMISSION: 12TH SEPTEMBER, 2020
TABLE OF CONTENTS

INTRODUCTION................................................................................................................................3
SELF-DEFENCE: AN INTRODUCTION................................................................................................5

THE DEFENCE OF NECESSITY..........................................................................................................6

THE RELATIONSHIP: THE MORAL COMPASS....................................................................................7

CRITICISM........................................................................................................................................9

CONCLUSION.................................................................................................................................12

BIBLIOGRAPHY..............................................................................................................................13

INTRODUCTION

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As a matter of theory, the distinction which can be made between self-defense, need and
duress are fascinating but may also be relevant in practice. The need for protection has
long been concern of to commentators in some jurisdictions, as it posed a problem about
reason versus excuse.1 But with the imperative of defense arises another interesting
philosophical question, which is “whether it can be morally differentiated from
selfdefense to which it as at least conceptually similar.” 2 The question is raised because
criminal law has repeatedly refused to acknowledge necessity as a legitimate defense
while fully embracing the self-defense which implies a moral distinction must be made
between them.3

Indeed, the imperative of protection tends to exist at a Frontier between what constitutes
an appropriate protection under the criminal law and morality and what does not to the
point discussion the purpose of defense as contrasted bristle defense offers a rare gift of
exceptional opportunity to assess the underlying moral essence of criminal or both need
and self-defense required the situation in which a person has committed and otherwise
illegal act as a mean of defending himself from an imminent danger in cases where two
people are stuck in the open ocean in danger of drowning, a need protection can apply. 4 If
one attacks the other in order to remove from it only usable wooden plank on the other
hand a plea of self-defense may be given if a person being pulled over of the plank and it
hits back even fatally to regain control of it the first case is the one which present
circumstances induces the defendant to comment and otherwise unlawful act. And in the
second scenario the defendant is induced to commit the otherwise unlawful act by an
Intruder which means one may even suggest that the self-defense is a species of necessity
it is not an exceptional ethical stands to believe that people are in fact that room prepaid
traitors of their actions and the should be held criminally liable and punished however as
it as its country consideration of necessity protection shows the normal jurisprudence of
criminal law does not made procedures from the presumption of free will but rigorously

1 Khalid Ghanayim, Excused Necessity in Western Legal Philosophy, 19 CAN. J. L. & JURISPRUDENCE 31
(2006).
2 Ibid.
3 Michele Cotton, "The Necessity Defense and the Moral Limits of Law." New Criminal Law Review, vol. 18,
no. 1, Winter 2015, p. 35-70. HeinOnline.
4 Edward M. Morgan, The Defence ofNecessity: justifcation or Excuse?, 42 U. TORONTO FAC. L. REV. 165
(1984).

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pursues policies and excludes everything that may contradict that presumption. 5 Such
presumptions set a detriment interpretation that means not only the application of
protection as such cannot be fulfilled but also that the legal system cannot use a theories
of science and social sciences in its reply to criminal behaviour to the degree that those
theories can explain human behaviour.

History
In Anglo American law the history of necessity protection is one of the surprisingly clear
the Nile as a study of most famous cases at rest homes for sale through a number of
passengers on board into a freezing not Atlantic where the drowned of forced to that one
of the earliest known precedent on this production of things was United States v. Holmes,6
in the case, Holmes was accused in the federal court of Pennsylvania for homicide of
people in the lifeboat by the time the remaining passengers were discovered. He plays
that necessity defense is applicable in this case and argued that such a difference was
provided by the rule of nature even though it was not explicitly defined in the common
law. The court was not satisfied with his arguments and ruled in against them:

“Without stopping to speculate upon overnice questions not before us, or

to involve ourselves in the labyrinth of ethical subtleties, we may safely
say that the sailor's duty is the protection of the persons intrusted to his
care, not their sacrifice....”7
The court insisted that under the obligation imposed by the state, the sailors on the ship
were required to give precedence to the passenger protection. The court was not
destroyed by any potential inconsistency between the treatment of self-defense and the
necessity defense recalling that homicide is justifiable in a proper case and not because
Municipal statute is subverted by the law of nature but because no rule of Municipal Law
allows homicide in such case is it has been declared as illegal. 8 In that conclusion the
court intended to reject the idea of emerging common law in philosophical similarities

5 Supra Note 2.
6 United States v. Holmes, z6 F. Cas. 360 (E.D. Pa. 1842).
7 Ibid.
8 Dudley and Stevens, 14 Q.B.D. 273 (1884).

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between Self-defense and the defense of necessity that could lead to an expansion of
toleration of the law

SELF-DEFENCE: AN INTRODUCTION

In early days, it was assumed that one should protect oneself by fleeing to the safe place,
rather than killing or harming the attacker. Most popularly, it was known as the retreat
law. In western countries, this remained in trend for a long period of time, representing
the fundamental justice in the realm of self-defense. But since then, the time has changed
a lot, such a pattern has been discarded from the society and the victim is no longer
obligated to run away for its life, and he is entitled to stand there and repel the attack and
exercise his right of private protection. The law does not mandate a law abiding person to
like a coward in the face of an impending unlawful violence. To run away at a time of
risk is more harmful to the human spirit than to deal with the threat. This privilege is
intended to serve a social function that warrants being fostered within the prescribed
limits. An individual has been granted the right of private protection only to protect
himself and not to retaliate. Not being granted this opportunity to take vengeance. This
right was used as a shield to take revenge and not as a sword. The Russel in his famous
excerpts have described the rule of private defense right as:
“A man is justified in resisting by force anyone who manifestly intends
and endeavours by violence or surprise to commit a known felony against
either his person, habitation or property. In these cases he is not obliged to
retreat, and may not merely resist the attack where he stands but may
indeed pursue his adversary until the danger is ended, and if in a conflict
between them he happens to kill his attacker, such killing is justifiable.”9
The rules relating to a person’s right to private defence were made pursuant to section 96
to 106 under the Indian Penal Code, 1860. Section 96 states that: “Nothing is an offence
which is done in the exercise of the right of Private defence.”10

9 Russel, Criminal Law, 94 Ref Crime (11th Ed., Vol.1, p.491).

10 Indian Penal Code, 1860, §96.

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This signifies that when a person acts in the right of private defence, such an act is not an
offence and he is not liable for it. In the famous case of Laxman v. State of Orissa,11 the
Apex court stated that when such a right is available to a citizen. The Supreme Court held
that the right of private defence is only open to an individual who has faced with
immediate danged on the face of it. The situation which forces a person to urgently
escape the imminent threat which is not his/her own creation.

THE DEFENCE OF NECESSITY

Necessity as a defense is stated u/s 81 in Indian Penal Code as:

“Act likely to cause harm, but done without criminal intent, and to prevent other harm.—
Nothing is an offence merely by reason of its being done with the knowledge that it is
likely to cause harm, if it be done without any criminal intention to cause harm, and in
good faith for the purpose of preventing or avoiding other harm to person or property.”

According to the provision, any act which will be constituted as an illegal or unlawful act
but the defendant does it anyway due to running out of reasonable choices. In the
provision regarding the doctrine of necessity, the courts look at the cognition of the
accused. Whether the situation was deadly in the eyes of a normal prudent person will
play a biggest part in the court proceedings. “The courts would otherwise be a crime may
in some cases be excused if the person accused can show that it was done only in order to
avoid consequences which could not otherwise be avoided, and which, if they has
followed, would have inflicted upon him or upon others whom he was bound to protect
inevitable and irreparable evil, that no more was done than was reasonably necessary for
that purpose, and that the evil inflicted by it was not disproportionate to the evil
avoided.”12
Whenever necessity forces a man to do an illegal act, forces him to do it, it explains him,
because no man can be declared guilty of a crime whenever the mens rea is missing. The
act committed by him must be voluntary. The individual who is absolutely by natural
factors have been forced even though his will does not go along with the act.13
11 Laxman v. State of Orissa, 1995 AIR 1387
12 Stephen Digest of Criminal Law, 9th Ed. (1950).
13 Dendati Sannibabu v. Varadapireddi Sannibabu, AIR 1959 AP 102.

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In order to attract the provisions of this act, it should be shown that the act complained of
“

was done in good faith in order to avoid or prevent harm on the person or property of
others. Therefore, where a person confining, another has a genuine or reasonable
apprehension that to allow the other to remain at large will endanger the person and the
property of others, it was held that this section comes into play. 14 ”

THE RELATIONSHIP: THE MORAL COMPASS

The denial of the application of protection of the doctrine of necessity by the statute may
be based on some moral grounds. However, the fact that self-defense raises many of the
same ethical problems as the defence without and during a comparable faith in the legal
system it undercuts such a possibility. When seen from the viewpoint of such diverse
moral philosophies as natural or social contract and utilitarianism, it is difficult to
separate ethically the protection under self-defense to the doctrine of necessity. 15 If ethical
differences do not justify why the law handles the difference of necessity differently than
the self defence, then something else needs to be taken into account. The real challenge
for the law seems to be the greater of disharmony between the necessity and the standard
free will principle of the criminal jurisprudence. It is this free will assumption that
undergrads the self-description of the law as being able to keep morally accountable for
the offenders and punish them in retaliation for choosing to perform their illegal acts for
example the Supreme Court of America has identified the belief in the freedom of human
will and their rights and obligations of the normal person to choose between the better
good and evil as a common and enduring aspect of the long.16 Indeed the law was
motivated by a strong common sense that recognises the Wills Independence as a
working theory in it in its solving its problem. The court also suggested that following a
interpretation of human actions would be inconsistent with the precepts underline or
criminal jurisprudence system of the world. Maintaining this principle of free will retain
the system of the tributary punishment which it is currently maintaining. 17 However if

14 Ibid.
15 Supra, Note 2.
16 Morissette v. United States, 342 U.S. 246, 25o (1952).
17 Michele Cotton, Back with a Vengeance: The Resilience of Retribution as an Articulated Purpose of Criminal
Punishment, 37 AMER. CRIM. L. REV. 1313 (ZOOO).

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adopted by the law of the conventional version of necessity defence with excuse the
dependent on the basis of his argument that he was forced to act on the dire circumstances
which exerted such pressure that he could not have been expected to act other than him.
Also naming it the protection of necessity means it runs contrary to the principal of free
will by statute only.18 For the defendant to say he acted obviously suggest that he had no
choice but to do so will stop what’s more necessary terrorism it simply synonym for
determinism. As James Mill noted a man cannot help behaving as it doesn’t need theory
that need theory suggest the person with does an act of what he’s told and it can’t be
simply that he should be punished for what he cannot stop. Given the resumption of the
free will which is deeply entrenched into the criminal jurisprudence the law discards the
need of the difference rather than wrestling with a prima facie inconsistency with that
assumption created by the defences of self-defence. However, could be seen as posing a
similar threads to the assumption of free will bylaw, insofar as self defence also involves
act that are precipitated by a life of safety threatening experience that essentially force is
the defendants hand. But Self defence can be conceptualized in ways that do not cause as
much ontological malice to the law. For instance, it can be seen as a wall wing two
independent people taking action against each other then turning the appearance of free
will rather than undermining it. On the other hand, necessity protection requires an
individual whose conduct appears to be ample impelled implied by circumstances, and
does risk being emblematic of the world governed by the forces other than the will. For
the more, it is easier to witness many acts taken in difference as those we would actually
chose, compared to many acts taken out of necessity such as murder or stealing, which by
their very own attractiveness and the lines what seemed to be the lack of choice.
Although, in theory both theory, both defences could undermine the assumption of the
grievance. Self-defence can be conceptualized to fit better within the prevailing paradigm.
That concern for “free-will” is the questioning the point for law and is suggested by the
Courts characterizing the behaviour of the defendant in necessity cases. In the case of
Dudley v. Stephens, the court stated that what the defendants did was in "temptation":
“The temptation to the act which existed here was not what the law has
ever called necessity.... The absolute divorce of law from morality would be of

18 A.W. Brian Simpson, Cannibalism & the Common Law 23I-32 (1984).

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fatal consequence, and such divorce would follow if the temptation to murder in
this case were to be held by law an absolute defense of it.” 19 As per Simpson’s
observation in this regard:

“The predominant view of English judges, then and now, is that it is just
when temptations are strongest and the difficulties of self-control most
acute that the law should reinforce the individual conscience with its
threat of punishment.”20

In the case of Holmes, the court suggested something similar when it states that it would
be “senseless, indeed, to absolve those offences which at that times when it are
punishable.” The idea is that the law cannot tolerate robbery of people at a tight spot as it
will represent a similar idea that difficult situations may invoke the will’s resistance, and
that the law of May represent such expectations. It has been it has been suggested by
many Scholars that such a viewpoint as of the court that states that “the law is clear that
economic needs alone cannot justify a choice of crime.” The law presumes that humans
have the ability to choose their conduct even in circumstances of great constraint and may
thus be held accountable for failing to do so. The denial of the protection by the statute
therefore preserve the concept of free will by expelling the notion that the defendant’s
conduct can be interpreted as being practically or in fact coercive.21

CRITICISM

In the criminal law jurisprudence, the doctrine of necessity and the self-defense are
morally on the equal ground.22 The interpretation of Cotton, revolves around this theory
only. He suggests that there is not logically sound argument that can demarcate both the
defenses in the nuances of criminal law. The “Disdain” for the doctrine of necessity in the
criminal law jurisprudence derives its primary source of power from the point that
acknowledging the defense would challenge the traditional assumptions of the criminal
laws around the world about the concept of free will of the individuals in choosing their
19 Dudley and Stevens, 14 Q.B.D. 273 (1884).
20 Supra note 17.
21 Supra Note 2.
22 Michele Cotton, The Necessity Defense and the Moral Limits of Law, 18 New Crim. L. Rev. 35, 37 (2015).

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free will to act.23 The denial of the doctrine of necessity on the legal forum has been quite
expensive. By preventing any kind of deterministic accounts of the human behavior, the
criminal jurisprudence have successfully isolated itself from the impact of other sciences
and social sciences.24 This would have allowed the law to achieve even more heights in
terms of interpretation. It has been stated by many scholars that it the unwillingness of the
criminal jurisprudence to take into the account of the modern interpretation of the human
behavior where it will involve the notion of free will. This will lead the criminal laws to a
more static and stagnant approach where sooner or later, the law will not be accountable
for the social engineering of the nation.
The author does not conform to the ideas stated by Cotton. According to the author, the
doctrine of necessity was never rejected as it insults the assumption of free will in the
criminal laws. But even after rejecting the assumption, it is affirms it. Conventionally, the
defense of necessity and the self-defense are very closely related. Both of the defenses
involve a situation where an individual has committed an act which otherwise will be
unlawful in order to protect its own life or property from an immediate threat.25
A perfect example of self-defense would be killing a person in order to save one’s life or
property. If we look at from facts perspective, the court deciding the trial would like to
recognize the reasonableness and the legitimacy of the act done by that person i.e. killing
the person. Prima facie, the act is unlawful and illegal in nature but it can be justified
when it is proved that the person had no other choice in the situation like that. On the
other hand, there is no justification available in the case of doctrine of necessity. For
making it clearer, a perfect example of the defense of necessity would be stealing food in
order to prevent death from starvation.26 If we consider, just for instance, a circumstances
created where a poor and homeless man finds him/her on the edge of death due to
starvation. The person’s human resource is almost negligible and has no means to make
his ends meet. Now, if the man steals food to survive through death and is arrested for the
crime, does it make him criminal? Can he plead the defense of necessity? If he raises the
defense of necessity claiming that it was necessary for his death and life situation, it will
23 Ibid.
24 Ibid.
25 Dustin Nelson, The Free Will Distinction Between Self-Defense & the Necessity Defense, Kentucky Law
Journal (2017).
26 Ibid.

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fail. If one to argue, there is no morally demarcation in homeless person preventing death
and a person using self-defense to save his/her life.
Notwithstanding, the criminal law only recognizes one such defense. It has been a matter
of speculations that the reason for this “incoherence” lies in the resistance of criminal law
in order to view those challenges the free will basis of the criminal jurisprudence. 27
Criminal Law is founded on the basis that offenders must have a free will otherwise it
will not constitute a crime. It is this presumption of the “free-will” that elaborates the
description of the Lex loci being capable of keeping the offenders accountable and punish
them for their bad deeds. But,

“The traditional version of the necessity defense, if accepted by the law,

would excuse the defendant based on his claim that he was driven to act
by dire circumstances, circumstances that imposed such pressure that he
could not have been expected to act other than he did. Even calling it the
necessity defense suggests that it is at odds with the law's assumption of
free will.”28
The defense of necessity is not disallowed as it insults the “free will” presumption of
criminal jurisprudence, but because so refusing the defense affirms the assumption.
CONCLUSION

As seen in this article, the necessity argument has been consistently and we sounding
leave rejected by the American jurisprudence. And, as has been seen here the exclusion
occurred despite the fact that the requirement of defence is morally and theoretically quite
close to the self defence which the law embraced in full. Apparently this contradictory
treatment of the two differences images because necessity, unlike Self defence contradicts
the free will presumption in the criminal law. In the difference of necessity means that the
conduct of the defendant was necessary rather than involuntarily one. The problem is not
so much that the wrong model principal that has been selected by the jurisprudence of
criminal law but it’s not like the philosophy that has sought the major ontological issue as
it has to fully close itself off from contamination of other viewpoints. In resisting

27 Michele Cotton, A Foolish Consistency: Keeping Determinism Out of the Criminal Law, 15 PUB. INT.
L.J. 1, 18, and 18 n.9o (zoo). 28 Supra Note 5.

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something that’s Max of deterministic or even some odd accounts of human behaviour,
criminal law segregates itself from the impact of such disciplines including the sciences
and the social sciences which may allow it to undertake most successful legal
interventions. Moreover, in it’s with emphasis on orthodoxy, criminal law is isolated
itself from the pressure that might refine and strengthen its moral judgements. That
position does not does not hold well for the criminal law jurisprudence in moral and
social potentials. If criminal law is preserved as rigid and homogeneous as a rooting out
of the care se will make it stagnant and static and maybe one day soon will become the
remaining out spot of privacy discarded concept of human conduct. Such result would see
will be negative the social gain and obtain justice.

BIBLIOGRAPHY

ARTICLES REFREED

• Khalid Ghanayim, Excused Necessity in Western Legal Philosophy, 19 CAN. J. L. &

JURISPRUDENCE 31 (2006)
• Michele Cotton, "The Necessity Defense and the Moral Limits of Law." New
Criminal Law Review, vol. 18, no. 1, Winter 2015, p. 35-70. HeinOnline
• Edward M. Morgan, The Defence ofNecessity: justifcation or Excuse?, 42 U. Toronto
Fac. L. Rev. 165 (1984)
• Russel, Criminal Law, 94 Ref Crime (11th Ed., Vol.1, p.491)
• Stephen Digest of Criminal Law, 9th Ed. (1950)

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• Michele Cotton, Back with a Vengeance: The Resilience of Retribution as an
Articulated Purpose of Criminal Punishment, 37 AMER. CRIM. L. REV. 1313
(ZOOO)
• A.W. Brian Simpson, Cannibalism & the Common Law 23I-32 (1984)
• Michele Cotton, The Necessity Defense and the Moral Limits of Law, 18 New Crim.
L. Rev. 35, 37 (2015)
• Dustin Nelson, The Free Will Distinction Between Self-Defense & the Necessity
Defense, Kentucky Law Journal (2017)
• Michele Cotton, A Foolish Consistency: Keeping Determinism Out of the Criminal
Law, 15 PUB. INT. L.J. 1, 18, and 18 n.9o (zoo)

CASES REFERRED

• United States v. Holmes, z6 F. Cas. 360 (E.D. Pa. 1842)

• Dudley v. Stevens, 14 Q.B.D. 273 (1884)
• Dudley v. Stevens, 14 Q.B.D. 273 (1884)
• Morissette v. United States, 342 U.S. 246, 25o (1952)
• Dendati Sannibabu v. Varadapireddi Sannibabu, AIR 1959 AP 102
• Laxman v. State of Orissa, 1995 AIR 1387

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