Analyzing the Defence of Necessity: The Right to Choose the Lesser Evil

A PROJECT SUBMITTED TO RAJIV GANDHI NATIONAL

UNIVERISTY OF LAW, PUNJAB FOR THE FIFTH SEMESTER OF
B.A. LL.B. (HONS)

Submitted to: Submitted by:

Dr. Ivneet Walia Harsh Mangal

(Ass. Professor of Law) Rollno. 18008

Group no. 2

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 ACKNOWLEDGEMENT

I would like to express my special thanks of gratitude to my teacher Dr. Ivneet Walia, who

gave me the golden opportunity to do this wonderful project of Criminal Law on “Defence of

Necessity: The Right to Choose the Lesser Evil”. I came to know about so many new things I

am really thankful to them. Secondly I would also like to thank my friends who helped me a

lot in finalizing this project within the limited time of frame

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 INDEX

1. Introduction…………………………………………………………………..4

2. The Criminal Defence of Necessity…………………………………………5

Reasonable Belief…………………………………………………………….6
No Realistic Alternative……………………………………………………..6
No Greater Harm……………………………………………………………6
No Involvement in the Threat………………………………………………7

3. Necessity As a General Exception in India………………………………..7

4. Case Laws And Observations………………………………………………9

5. Conclusion…………………………………………………………………...10

6. Bibliography…………………………………………………………………11

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INTRODUCTION

The criminal law allows necessity be used as a defense in trial when the defendant's actions
are the result of natural forces. This defense can be contrasted against the duress defense,
which can be used when the defendant's actions were the result of forceful human influence.
Self defense often qualifies as a kind of necessity, since in this case it is the natural instinct to
preserve oneself from harm that motivates the violence, rather than the coercion of another
human being.

A potential application of the necessity defense would be for a defendant who is accused of
speeding, if he was speeding to the emergency room with a heart attack victim in the back
seat.

The defence of necessity is difficult to argue successfully. It generally applies in situations

where a person committed an act that would normally amount to a criminal offence because
of an extreme situation in which they or another person were in danger of being seriously
harmed if they did not commit the act.

The defence of necessity exists for cases where the circumstances overwhelmingly impel
disobedience to the law and is limited to very rare and extreme situations. The law cannot
leave people free to choose for themselves which laws they will obey and which they will
disobey or to construct and apply their own set of values that are inconsistent with those
implicit in the law. Nor can the law encourage juries to exercise a power to dispense with
compliance with the law where they consider disobedience to be reasonable, on the ground
that the conduct of an accused person serves some value higher than that implicit in the law
which is disobeyed.

As a matter of political expediency, states usually allow some classes of person to be excused
from liability when they are engaged in socially useful functions but intentionally cause
injury, loss or damage. For example, the fire services and other civil
defence organizations have a general duty to keep the community safe from harm. If a fire or
flood is threatening to spread out of control, it may be reasonably necessary to destroy other
property to form a fire break, or to trespass on land to throw up mounds of earth to prevent

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the water from spreading. These examples have the common feature of individuals
intentionally breaking the law because they believe it to be urgently necessary to protect
others from harm, but some states distinguish between a response to a crisis arising from an
entirely natural cause (an inanimate force of nature), e.g. a fire from a lightning strike or rain
from a storm, and a response to an entirely human crisis. Thus, parents who lack the financial
means to feed their children cannot use necessity as a defense if they steal food. The
existence of welfare benefits and strategies other than self-help defeat the claim of an urgent
necessity that cannot be avoided in any way other than by breaking the law. Further, some
states apply a test of proportionality. So the defense would only be allowed where the degree
of harm actually caused was a reasonably proportionate response to the degree of harm
threatened.

Necessity else than been a new defence is also an evolving concept. This study will focus
mainly on the assumptions related to necessity as a defence in criminal law, and what doubts
come to mind of the people when they hear of this defence.

THE CRIMINAL DEFENCE OF NECESSITY

The defense of necessity may apply when an individual commits a criminal act during an
emergency situation in order to prevent a greater harm from happening. In such
circumstances, our legal system typically excuses the individual’s criminal act because it was
justified, or finds that no criminal act has occurred. Although necessity may seem like
a defense that would be commonly invoked by defendants seeking to avoid criminal charges,
its application is limited by several important requirements:

 The defendant must reasonably have believed that there was an actual and specific
threat that required immediate action
 The defendant must have had no realistic alternative to completing the criminal act
 The harm caused by the criminal act must not be greater than the harm avoided
 The defendant did not himself contribute to or cause the threat

Only if all of these requirements are met, will the defense of necessity be applicable. It is also
important to note that in some jurisdictions, necessity is never a defense to the killing of
another individual, no matter what threat they may present.

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Reasonable Belief

Under the defense of necessity, an individual must reasonably believe, first and foremost, that
there is an imminent and actual threat that requires immediate action. Thus, for instance, a
school bus driver may be driving a bus of school-aged children when he loses control of his
brakes as he is approaching a steep turn on a mountain road. He is faced with an actual and
immediate threat that the bus may go out of control and drive off the road, risking the lives of
countless children on the bus.

Like other crimes, most states require that this threat would be reasonably apparent to the
average individual and is not a threat that the defendant experienced only subjectively. Here,
a reasonable person would certainly agree that an out of control bus with children on it is an
actual threat to safety.

No Realistic Alternative

Because the defense of necessity is essentially a justification for the criminal act, it is
imperative that the defendant had no other realistic options available to him at the time the
criminal act was committed. If he did, his criminal actions would not be justified. This does
not mean, however, that no alternative whatsoever must exist. Generally, the individual will
always have the option to simply let the greater harm occur and refrain from acting
criminally, but courts have determined that this is not a “realistic” option.

In the example, for instance, if the bus driver had access to an emergency braking device that
was designed to stop the bus when the regular brakes failed, he would not be justified in
committing a criminal act to prevent collision because he had a realistic alternative available
to him.

No Greater Harm

When an individual is evaluating whether it is necessary to undertake a criminal act in order

to avoid a more serious problem from arising or occurring, the individual must be certain that
no greater harm will arise from his or her criminal act than from the situation that would be
avoided.

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For instance, if, in order to avoid driving off the mountain road and plunging down the steep
incline, the bus driver elects to drive the bus into a barn in order to stop the bus, he must be
certain that no greater harm will come from this choice. Because it is a barn and perhaps
appears empty to him, his criminal act of destroying the barn and any property inside will
likely be considered less harmful than the lives lost if the bus careens over the road.
However, if the bus drivers only alternative was to drive the bus into an area crowded with
other people, he might, in fact, cause more harm through this alternative than would be
prevented.

No Involvement in the Threat

Finally, any defendant claiming the defense of necessity cannot have contributed to or caused
the threat that they were later seeking to avoid by committing the criminal act. Thus, if the
bus driver had been advised by his mechanic that the brakes on his bus were failing, but
decided not to have them replaced, he could have difficulty claiming the defense of necessity
because his failure to act responsibly contributed to the threat he faced.

NECESSITY AS A GENERAL EXCEPTION IN INDIA

SECTION 81 of the INDIAN PENAL CODE: “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.1

It is a question of fact in such a case whether the harm to be prevented or avoided was of such
nature and so imminent as to justify or excuse the risk of doing the act with the knowledge
that it was likely to cause harm.

Example, A, in a great fire, pulls down houses in order to prevent the conflagration from
spreading. He does this with the intention in good faith of saving human life and property.

1
https://indiankanoon.org/doc/538716/

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Here, if it be found that the harm to be prevented was of such a nature and so imminent as to
excuse A’s act. A is not guilty of the offence.

Necessity is meant by a situation where conduct promotes some value higher than the value
of the literal compliance with the law. It is on the principle of expediency that the law has
recognized necessity as an excuse in criminal cases. In other words, what necessity forces it
justifies, namely quod necessitas, cogit defendit.

Section 81 stresses three conditions to claim exemptions from criminal responsibility,

namely:

1) The act must have been committed in order to avoid other harm;

2) The harm to be avoided must be such as to justify the risk of doing an act likely to cause

harm; and

3) The act must have been committed in good faith without any criminal intention to cause

harm.

Section 80 and 81 are analogous sections, the former dealing with accidents and the latter
with inevitable accidents. However, there is a difference as to the nature and extend of mens
rea prescribed under both these sections. Section 80 stipulates the absence of criminal
intention as well as criminal knowledge.

But Section 81 stipulates the absence of criminal intention alone. Thus, the term ‘without
criminal intention’ or ‘knowledge’ are present in section 80, whereas, the term used in section
81 is ‘without criminal intention’ alone. In fact, section 81 clearly contemplates a situation
where the accused has knowledge that is likely to cause harm, but it is specifically stipulated
that such knowledge shall not be held against him. Thus in certain situations even though the
presence of knowledge is sufficient mens rea, in this section, knowledge alone will not be
sufficient if there is absence of criminal intention. Knowledge has been described as
awareness of consequences of the act. The demarcating line between knowledge and
intention is no doubt thin, but it is not difficult to perceive that they connote different things.

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The immunity from criminal liability under this section will be available where an offence is
committed without any criminal intention, to cause harm and in good faith and if such
offence is committed for the purpose of preventing or avoiding other harm or property. The
harm caused need not be necessarily less than the harm averted, though this question would
become material when judging the good faith of an act. The explanation to the section
provides that the justification for the harm caused and whether the risk caused should be
excused, is a question of fact to be determined in each case.

The question, whether the doctrine of necessity can be applied as a justification for killing
another human being, is a very tricky question. The usual view that necessity is no defence to
a charge of murder. But, killing becomes much more difficult in cases of emergency.

Killing a person in self defence may appear to be an example of necessity. While self defence
may appear to be an example of necessity. While self defence may overlap necessity, the two
are not the same.

Private defence operates only against aggressors. Generally, the aggressors are wrong doers,
while the persons against whom action is taken by necessity, may not be aggressors or wrong
doers. Unlike necessity, private defence involves no balancing of values.

CASE LAWS AND OBSERVATIONS

1) Gopal Naidu v Emperor2

In this case, a drunken man carrying a revolver in his hand was disarmed and put under
restraint by police officers, though the offence of public nuisance under section 290 was a
non-cognizable offence without a warrant. Though the police officers were prima facie guilty
of the offence of wrongful confinement, it was held that they could plead justification in this
section. In this case the Madras High Court held that the person or property to be protected
may be the person or property of the accused himself or of others. The word harm in this
section means ‘physical injury’.3

2
AIR 1923 Mad FB 523
3
https://www.mondaq.com/india/crime/882586/general-criminal-defences-mistake-of-fact-accident-and-
necessity-part-ii

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2) United States v Holmes [1842]4

This case carries out of the sinking American vessel, “WILLIAM BROWN” of
Newfoundland after hitting an iceberg. The accused was a member of the crew of a boat after
a shipwreck. Under the orders of the mate he threw out 16 male passengers on board to
prevent ship from sinking. And though he wasn’t convicted for murder he was convicted for
manslaughter and sentenced to 6 months imprisonment. He was sentenced to 6 months
imprisonment and made to pay a fine of USD 20 fine for manslaughter. However his sentence
was remitted. 5

3) Dudley and Stephens case 6

This case, the crew of the yacht ‘MIGNONNETTE’ were cast away in a storm and were
compelled to put into an open boat, which had no water or food. On the twentieth day, having
had nothing to eat for eight days and being 1000 miles away from land, two of the crew,
Dudley and Stephens, agreed that the cabin boy should be killed with a knife so that they can
feed upon his body. One of them carried out the plan. On the fourth day, they were rescued
by a passing boat. The two men were charged with murder. The jury was ignorant if the
prisoners were guilty and referred to court. The question was considered by 5 judges who
held that the act was murder. However their sentence of death was commuted by the crown.
The crown sentenced them to 6 months imprisonment. In this case it is difficult to decide
which is an act of greater harm and if the act can be justified.7

CONCLUSION

The general defences enshrined under IPC are of paramount importance in establishing the
parameters of criminal offences. Criminal liability makes a person liable for the acts which
are prohibited by law. Indian Penal Code took cognizance of fact that all acts are not to be
4
Federal case 360, No 15383, Circuit Court-Pennsylvania, US
5
https://www.mondaq.com/india/crime/882586/general-criminal-defences-mistake-of-fact-accident-and-
necessity-part-ii
6
QBD 273 referred to in ibid at p 605
7
https://www.mondaq.com/india/crime/882586/general-criminal-defences-mistake-of-fact-accident-and-
necessity-part-ii

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punished. The acts devoid of mens rea are exempted from criminal liability. Defence of
necessity applied, when a person in order to prevent a greater harm from taking place,
commits a crime or a criminal act during an emergency situation, wherein accused can escape
criminal liability because his/her act was justified as he/she had the intention to prevent a
situation which would cause a greater harm as compared to the criminal act committed by
him or her.

The generally accepted position is that necessity cannot be a defence to a criminal charge. If
hunger were once allowed to be an excuse for stealing, it would open a door through which
all kinds of lawlessness and disorder would pass. If homelessness were once admitted as a
defence to trespass, no one’s house could be safe. Necessity would open a door which no man
could shut. It would not only be those in extreme need who would enter. There would be
others who would imagine that they were in need, or would invent a need, so as to gain entry.
The law regards with deepest suspicion any remedies of self-help, and permits those remedies
to be resorted to only in very special circumstances. The reason for such circumspection is
clear – necessity can very easily become simply a mask for anarchy. The conclusion is that
one can reach is that necessity considers circumstantial morality and provides one to be saved
from his circumstantial offence. Necessity else than been a new defence is also an evolving
concept. The way it will evolve will depend on, how the judiciary interprets it in future cases.

BIBLIOGRAPHY

1. www.google.com
2. www.legaldictionary.thefreedictionary.com
3. The Indian Penal Code by Justice YV Chandrachud and VR Manohar
4. Criminal Law by PSA Pillai
5. JSTOR

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