Doctrine of Necessity:

The Interplay between Criminal Liability and Morality

Criminal Law-I

Research Paper

Submitted to: Asst. Prof. Anuradha Prasad

Submitted by: Varun Dhond

Roll No: 2016-5LLB-53

NALSAR University of Law, Hyderabad

1
 Abstract

Every penal provision is subject to various limitations since no offense can be absolute. There
are exceptions which ultimately take into consideration evil intention or design, ultimately
being impacted by morals. Chapter-IV of the Indian Penal Code, 1860 from Section 76 to 106
contains provisions for General Exceptions. These exceptions lay down various
circumstances which excuse an accused from criminal liability- when no punishment can be
imposed. Section 81 embodies the doctrine of necessity as an exception giving immunity
from criminal liability from an act which is likely to cause harm but done to prevent any
greater harm, thus without criminal intent. A deeper analysis of this section helps us
understand various phenomena of criminal law- its phenomena and its jurisprudence. This
paper thus seeks to establish the interplay between criminal liability and morality through this
section and its evolved common law cases.

Table of Contents:
I. Introduction
A. Background
B. Scope
II. Infringement of Morals in Penal Provisions
III. Necessity Extending to Cause Death
IV. Common Necessity and its Manifestation of Morals
V. The Trolley Problem
VI. Conclusion

2
 I. Introduction

“Necessity is one of the curiosities of law and so far as I am aware it is a subject on

which the law of England is so vague that, if cases raising the question should ever
occur, the judges would practically be able to lay down any rule which they considered
expedient.”
-Stephen1
A. Background
It would be pertinent to understand what general exceptions of the IPC are and what
principles they constitute, before tracing the jurisprudential backing of Section 81, since it is
significant to understand the reasoning behind acts being exempt from criminal liability. An
act of a ‘wrongdoer’ would not constitute an offense in spite of prima facie falling within a
section defining it as an offense or prescribing a punishment for it, if it is covered by any of
the above-mentioned exceptions. Thus, according to general exceptions, actus reus
accompanied by requisite mens rea would still limit and override provisions of the IPC.
Regarding the element of mens rea in such crimes, it is argued that general exceptions specify
certain circumstances that prelude the formation of mens rea. These are such circumstances
which are labelled “conditions of non-impurability” 2 General exceptions are broadly of two
types, the first being excusable, in which penal provisions are not attracted due to necessary
requirements of a guilty mind. In these, Actus Reus is not considered a crime due to
inadequate mens rea and the focus of liability is primarily on the the actor. The second being
justifiable, in which there are certain meritorious considerations which exempt criminal
liability. Actus Reus committed with requisite mens rea is not meritorious due to additional
circumstances and the focus of liability is primarily on the act.3

B. Scope
Section 81 states that an “act likely to cause harm, but done without criminal intent, and to
prevent other harm” merely due to the reason that it was done with the knowledge that it is
likely to cause harm. It must be “done without any criminal intention to cause harm, and in
good faith for the purpose of preventing or avoiding harm to person or property”.

1
History of Criminal Law, AIR 1950 All 95.
2
Shamsul Huda, ‘The Principles of Law and Crime’, (Tagore Law Lecture, 1902), Eastern Book Co, Lucknow,
Reprint 2011, Ch. 7: ‘Conditions of Non-Imputability’
3
For deeper understanding see Paul Robinson, ‘Criminal Law Defences: A Systematic Analysis’, Vol 82
Columbia Law Review, 1982, p 199.

3
Regarding the nature and extent of mens rea, the absence of criminal intention is required but
presence of criminal knowledge is not to be held against the wrongdoer. Knowledge with the
absence of intention is the shade of mens rea which is not applicable for liability in this
section. There is a fine line between intention and knowledge; and this grey area leads to
ambiguity in spite of different connotations.

II. Infringement of Morals in Penal Provisions

The Section explains that it is a matter of fact “whether the circumstances were such that the
harm to be prevented or avoided was of such a 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.”

The doctrine of necessity is based upon two latin maxims: “quod necessitas non habet
leegem” (necessity knows no law) and “necessitas vincit legem” (necessity overcomes the
law). According to the Illustration (a) of the Section 4, the principle is embodied by the
assumption that the accused would commit a lesser evil to avert a bigger based on his moral
judgement. It is based on the belief that obeying the law by the statute 5 is a greater social evil
and immoral in certain circumstances than the breaking of the law. This reasoning is based
the value judgement/assumption that the law must be broken to achieve a greater good. 6 The
Section does not implicitly state “evils” but in effect deals with it. In this illustration,
necessity is expressed when the captain has the option of running down a ship with 20-30
passengers or a smaller boat with only 2 passengers. His changing of course of his vessel is
exempted from penal provision in this section due to the moral judgement that he makes.

4
Illustration (a) of Section 81 states that “A, the captain of a steam vessel, suddenly and without any fault or
negligence on his part, finds himself in such a position that, before he can stop his vessel, he must inevitably run
down to boat B, with twenty or thirty passengers on board, unless he changes the course of his vessel, and that,
by changing his course, he must incur risk of running down a boat C with only two passengers on board, which
he may possibly clear. Here, if A alters his course without any intention to run down the boat C and in good
faith for the purpose of avoiding the danger to the passengers in the boat B, he is not guilty of an offence,
though he may run down the boat C by doing an act which he knew was likely to cause that effect, if it be found
as a matter of fact that the danger which he intended to avoid was such as to excuse him in incurring the risk of
running down the boat C.”
5
i.e. following the letter of the the law
6
Glanville Williams, Textbook of Criminal Law, second edn, Stevens & Sons, London, 1983, Indian Reprint by
Universal Publishing, New Delhi, 1999, p 597.

4
Similarly in Illustration (b) of the Section 7, a person pulls down houses to prevent a greater
disaster i.e. the spreading of fire. In both the illustrations, the alternate acts that are being
performed are offenses in itself but are done without the intention of causing harm.

To better understand the impact of morals on criminal law, the features of some killings must
be viewed with their moral connotations. Consider a case of manslaughter and its significance
in determining the gravity of that killing. The primary aspect is the moral significance of that
killing, depending on aspects that are universal (such as direct intention to kill is universally
viewed to be the worst morally) or socially dependent (such as racial motivation).

III. Necessity Extending to Cause Death

A very morally significant ambiguity exists about whether necessity can justify causing death
of another person. It is generally accepted that it doesn’t extend to causing death 8 but there
are extreme circumstances where this ambiguity lies.
In Gregson v. Gilbert9 a ship was running short of casks of water and 100 slaves had already
died of thirst and thus 150 slaves were thrown overboard. In this case, such an heinous act
was excused due to the exceptional circumstances that existed. It was held that necessity
could be pleaded in a case- (a) where the evil averted is not lesser than the offense
committed, (b) where evil could have been averted only by committing the offense and (c)
where no greater harm than necessary for averting the evil was caused. In this case, necessity
thus extended to causing death as it overcomes the law supersedes rules and carries a
privilege in itself in reasonable cases.

In the landmark case of United States v. Holmes, 10 the crew of a wrecked ship feared that the
boat would sink and thus threw 16 male passengers overboard. It was argued that in such
situations of necessity, conventional laws ceased to exist and natural law superseded, thus
giving primacy to the law of self-preservation akin to self-defense. The extra-ordinary
circumstances were not enough to justify necessity and were held guilty of manslaughter.
7
Illustration (b) of Section 81 states that “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 or property.
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.”
8
Glanville Williams, Textbook of Criminal Law, second edn, Stevens & Sons, London, 1983, Indian Reprint by
Universal Publishing, New Delhi, 1999, p 604.
9
(1783) Douglas 232 quoted in Kenny’s Criminal Law, (19th Edn.) p. 73
10
26 Fed Cas 360 (1842) (Circuit Court, Eastern District, Pennsylvania).

5
Various American cases followed the strict principle that necessity didn’t extend to causing
death as held in Arp v. State11 and State v. Nargashian12. With the gradual evolution of the
doctrine, murder did come within the ambit of justification. This was held in Northern Ireland
v. Lynch13 which was embodied in the case of S. v. Goliath14, which allowed the exception to
extend as a defense to murder. It was held:

“It is generally accepted…that for the ordinary person in general his life is more valuable
than that of another…. Should the criminal law then state that compulsion could never be a
defence to a charge of murder, it would demand that a person who killed another under
duress…would have to comply with a higher standard than that demanded of the average
person. I do not think that such an exception to the general rule which applies in criminal
law is justified.”15

Another interesting situation which could help summarize the theme that is being discussed is
the remark made by the authors of Smith and Hogan textbook of Criminal Law following the
9/11 destruction of the World Trade Centre who think that “it now appears to be recognized
that it would be lawful to shoot down the plane, killing all the innocent passengers and crew
if this were the only way to prevent a much greater impending disaster” on the basis of
necessity.

IV. Common Necessity and its Manifestation of Morals

[N.B. Read Part (IV) of the paper in context with Part (III) to understand issues due to their inter-dependence .]

Another moral dilemma while dealing with necessity is circumstances where multiple
persons are in a situation of common necessity. There is an important question of our morals
involved while making value judgements to justify any act. In situations that involve taking
the life of a person, this attains greater significance. The question arises whether a person’s
necessity would extend to another person facing the same circumstances. In 1931, Benjamin
Cardozo, an American judge gave stated in an opinion: “Where two or more are overtaken by

11
1983
12
1904
13
1975
14
South Africa (1972)
15
Maverick SM, Maverick SM & View profile, Regina v Dudley and Stephens
Theoryofjurisprudence.blogspot.com.au (2017), http://theoryofjurisprudence.blogspot.com.au/2006/06/regina-v-
dudley-and-stephens.html (last visited Apr 8, 2017).

6
a common disaster, there is no right on the part of one to save the lives of some by the killing
of another.”16

In spite of the above principle being well recognized by law, there are still multiple situations
where necessity has been a defense for murder. In a case of conjoined twins, the ambiguity
lies in whether saving one twin (herein referred to as the ‘stronger’ twin) at the cost of the
other twin (the ‘weaker’ twin) would be recognized as necessity. Let us take up the situation
where two conjoined twins were born with their individual head, brain, heart, lungs and other
body parts. It is reasonably foreseeable, based upon medical opinion that if these twins are
not operated upon and don’t undergo surgery for separation, they would not be able to
survive. Allowing them to continue in that conjoined state would result in certain death. The
only alternative is surgery, which if performed would result in the sure death of one twin. If
the ‘stronger’ twin is separated, there is a very high possibility of his survival, but this would
result in the death of the ‘weaker’ twin. In this case the court would decide on the basis of
necessity due to the circumstances. Part from this, scope for moral judgements is curtailed by
the fact that the selection is based on physical attributes of the weak twin. We could interpret
the Section in the given situation, since it would be lawful to kill the ‘weaker’ twin since
there is knowledge of the fact that the twin(s) were facing imminent death in this case and
continuing the life of the weaker twin would cause the death of the ‘stronger’. The act was
likely to cause harm but was done to prevent a greater harm, without any criminal intention.

For instance, let us take the hypothetical example of a situation similar to the Titanic
shipwreck. In this situation, Jack and Rose are both in the chilly waters of the Atlantic and
there is only one wooden plank in sight which can keep only one person afloat. The ‘weaker’
person (i.e. Rose) is holding the plank and the ‘stronger’ person (i.e. Jack) attempts to push
her off. She later dies. The question thus arises regarding whether necessity would be
applicable in this case. Similar to the above situation would ‘jus necessitates’ apply as the
circumstances are similar. When deciding whether they are liable, value judgements would be
made regarding lesser evils. This would ultimately have the element of morals shaping this
opinion.

To get a better understanding of common necessity, the landmark case of Regina v. Dudley
and Stephens17 serves as the best illustration. Mignonette, a yacht was stranded in a storm and
16
Ibid
17
[1884] 14 QBD 273.

7
due to shipwreck, four of its crew members (the captain, the mate, the crewman and the ships
boy) were forced to survive on a life-board than didn’t have any food supplies. On the
eighteenth day, after seven days without food or water the captain and his mate suggested that
lots be drawn to sacrifice one of them to feed the other. The crewman disagreed to this. The
mate was later persuaded that the only hope for their survival was to eat the boy since they
had families while he didn’t and he was losing consciousness and was the weakest amongst
them. (The method of selection is similar to the above situation of conjoined twins) The next
day the captain and his mate decided that if they were not rescued, they would kill the boy
and they ultimately stabbed him. The crewman didn’t consent to the killing but he
accompanied the two in eating the boy’s body and drinking his blood for four days until they
were rescued by a passing ship. On being brought ashore they were arrested and charged with
murder. In the special verdict18, the jury held:

“If the men had not fed upon the body of the boy, they would probably not have survived to
be picked up and rescued, but would within the four days have died of famine; that the boy,
being in a much weaker condition, was likely to have died before them; that at the time of the
act in question there was no sail in sight, nor any reasonable prospect of relief; that under
the circumstances there appeared to the prisoners every probability that, unless they fed, or
very soon fed, upon the boy or one of themselves, they would die of starvation; that there was
no appreciable chance of saving life except by killing someone for the others to eat; that,
assuming any necessity to kill anybody, there was no greater necessity for killing the boy
than any of the other three men.”

While deciding the case, the court first dealt with whether it recognised the defence of
necessity in the given facts of the case and whether it was extended to justify/excuse the
killing of the boy. The court held that self-preservation was not grounds for necessity and
thus a person didn’t have the right to commit homicide to preserve one’s life. The court
sentenced the accused to death (which was later commutated) as there was no legally
recognised excuse to commit murder. The court’s judgement has highlighted the overbearing
impact that morals have on law:

18
Owing to the great crowd at the courtroom showing sympathy for the accused, the trial judge decided to ask
the jury for a special verdict which would only decide the facts of the case and its decision lay with the higher
courts.

8
“Though law and morality are not the same, and many things may be immoral which are not
necessarily illegal, yet the absolute divorce of law from morality would be of fatal
consequence; and such divorce would follow if the temptation to murder in this case were to
be held by law an absolute defence of it. It is not so. To preserve one’s life is generally
speaking a duty, but it may be the plainest and the highest duty to sacrifice it. War is full of
instances in which it is a man’s duty not to live, but to die. The duty, in case of shipwreck, of
a captain to his crew, of the crew to the passengers, of soldiers to women and children . . .
these duties impose on men the moral necessity, not of the preservation, but of the sacrifice of
their lives for others, from which in no country, least of all, it is to be hoped, in England, will
men ever shrink, as indeed, they have not shrunk. It is not correct, therefore, to say that
there is any absolute or unqualified necessity to preserve one’s life.”

V. The Trolley Problem

An interplay between the criminal liability and morals (keeping the R v. Dudley judgement in
context) is the utilitarian thinkers and their theory of ‘best action’. The utilitarian belief of
consequences as a moral justification for ‘good’ or ‘bad’ is manifested in their principle of
‘the greatest amount of good for the greatest number’. While deciding criminal liability, the
fact that the boy’s death saved the lives of three others isn’t considered. The action must be
justified since it produces more utility: the choice between doing nothing, effectively causing
everyone’s death and giving three others a considerable chance of life by shortening the life
of a ‘weak’ and semi-conscious boy whose death was certain. When we consider this
principle along with its moral significance, the long term consequence of permitting killing
on the pretext of necessity is overlooked. It is evident that criminal intent was lacking in this
case since the accused didn’t wish for the starvation of anyone and it was the extreme
situation that caused them to do so.

The Trolley Problem19 is an essay by Judith Jarvis James which deals with hypothetical
situations accurately exhibiting the doctrine of necessity in practice. Suppose a trolley-driver
is in a trolley whose breaks fail and he is left in a dilemma: He sees five workmen on the
track and to avoid killing them, he needs to take a turn wherein he kills a single workman on
the other track. The only option possible for the driver is to make a turn to avert a greater
disaster. The question now arises is whether it is morally permissible for the driver to make

19
The Trolley Problem, jstor (2017), http://www.jstor.org/stable/pdf/796133.pdf (last visited Apr 8, 2017).

9
that turn. The circumstances of this situation fall within the pre-requisites of necessity since
the driver is averting greater damage by turning the trolley. The question that finally arises is
whether the driver is morally required to turn the trolley based on utilitarian principles.

In the second scenario of the problem, a surgeon, who specialises in transplanting organs has
five patients who need two lungs, kidneys and a heart respectively. If these organs are not
provided the patients will die immediately. At this moment, the surgeon discovers a person
whose blood-group matches all these patients and is capable of donating all his organs to
these patients. Like in the first case, the question arises whether it would be morally
permissible to kill this person and transplant his organs into the five patients.

Most people who would answer in the affirmative in the first case would now be left in a
moral dilemma in the second case. If the person in question acts, five person’s lives are saved
with only one death and if he doesn’t they’re lost. The facts of both these cases are broadly
similar but there are still minor differences:

 In the case of the surgeon, the option is between operating in which he saves five lives
but kills one person and if he doesn’t operate, he lets five people die. Thus killing one
person is worse than letting five people die

 In the case of the driver, his choice is between turning the trolley in which he kills one
person and if he abstains from turning, he lets five people die, but in this case he
positively kills them. This reasoning is based upon the fact that the driver is in active
control of the trolley (let us neglect the fact that the break failed not due to his
negligence) and if he doesn’t turn the trolley, he is responsible for the deaths of five
people. Thus a person would, based on moral justifications conclude with the
reasoning that killing five is worse than killing one.

 If we replace the driver with a Bystander at the Switch the situation is altered. The
trolley problem if viewed closely, is similar to the case of R v. Dudley and Stephens.
The Bystander at the Switch situation is similar it Illustration (b) of the Section. Thus
we are left with the moral debate on the value each life serves. This is based on
utilitarian principles of whether a bystander is morally obliged to turn the switch. The

10
trolley problem also deals with various other scenarios that further our understanding
of criminal liability and the manifestation of morals in our criminal law.

11
VI. Conclusion

In spite of the Positivist School of Thought’s belief in the separation of law and morals, the
obligatory power of the law must be justified by its relationship with morals. If the statute of
the law is followed without any regards to morality, there is no element of correctness or
what ‘we’ view ‘right’ since even the statutes are what legislators or judges view as morally
correct.

The Utilitarian principle is the connecting link between legality and morality and is thus the
justifying factor which allows criminal liability to attain moral connotations. When a
particular scenario is granted (or not granted) the defence of necessity, it is based upon the
assumption that law must uphold a particular standard obligatory for judicial decision making
and if a decision is termed unjust, it attracts moral connotations.

If we have certain opinions about a case, on the basis of our pre-conceived notions of
morality, then it exposes our perception that criminal law and morals must relate. It is our
moral interpretations of certain circumstances being severe that we feel should reduce the
severity of guilt but this moral justification can’t absolve a person of his guilt. In other words,
a person doing an act which is inherently ‘evil’ can’t expect the law to excuse him on the
pretext that it was for ‘good reason’. It can thus thus be concluded that ‘mere’ moral wrongs
don’t attain criminal liability but the inverse is not true, moral wrongs can attain criminal
liability.
.

*****

12