Author: Pankhuri Gupta, Brahmanand College, Kanpur
“Necessity knows no law.” – Aesop.
The doctrine of necessity first finds its roots in the writings of Henry de Bracton, who was a medieval jurist.
He stated that ” which is otherwise not
lawful is made lawful by necessity”.
Section 19: Act likely to cause harm , but done without criminal intent , and to prevent other harm.
Chapter 3 of the Bharatiya Nyaya Sanhita 2023 deals with General Exceptions, section 19 of which deals with Doctrine of necessity according to which , 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 large harm to persons or property. This defense of necessity in criminal law allows individuals to break the law in alarming situations to prevent greater harm. To claim this defense, one must prove they faced immediate risk and hey themselves weren’t responsible for that situation. The circumstances should be so urgent that breaking the law was the only reasonable response. This defense is rarely successful, as courts set a high bar for its application in most of the cases. The key factors are the immediacy of the threat and the defendant’s lack of culpability in creating such a situation. If these conditions are met, the defendant may be excused from criminal liability under BNS, but the defense is only acceptable in extreme circumstances.
Let’s encounter a suitable example to explain this section for a more clarified explanation;
The captain of a huge ship suddenly finds himself in a position like that of a Titanic with a huge iceberg in front of him, but he is in somewhat a better position than that of the Titanic , where he can turn his ship, either to the left or to the right to save thousand’s of his passengers on board, but there’s a catch…. On his left stands a small boat carrying 20 passengers, and on his right is another boat Carrying 3 passengers, the captain finally orders to turn the steering of his huge ship towards the right, swallowing the entire boat and killing all the 3 passengers on board . Has the captain committed any crime under Bharatiya nyaya sanhita, 2023 ?
According to Section 19 of the BNS which talks about doctrine of necessity, which means even though the captain had the knowledge of his act that he was likely to cause a harm, But his intent was not criminal, rather in good faith and to prevent a large harm to the person’s onboard and on the boat to his left, hence the captain gets the defence under section 19 and is deemed NOT GUILTY to cause a small harm in order to prevent a larger one.
We all are aware of the Latin term “Actus non facit reum , nisi mens sit rea” meaning, an act itself does not make a man guilty unless his intention is to do so .
In the above cited example it is clear from the intention of the captain that he does not intend to kill any passenger either on board or on the boats but he has encountered such a situation that there is no other way to save the lives of all the passengers on board which are huge in number. He could have turned his ship towards the left but the number of passengers there were also not less hence in order to save all of them he had no other choice but to swallow the boat on his right to save them all . The death of the 3 passengers on the boat to his right was not the result of his evil intention but was the only way out to prevent a larger harm that could have occurred.
Abstract : The doctrine of necessity allows individuals to prioritize minimizing harm in alarming circumstances. If someone acts in good faith to prevent greater harm, even if their actions cause some harm, they might not be held criminally responsible. This principle emphasizes the importance of intent and is illustrated by the example of a ship captain who makes a difficult choice to save more lives in the above mentioned case.
Case laws : The most famous and the landmark case relating to the doctrine is that of ;
R. v/s Dudley & Stephens
The case of R v Dudley and Stephens is a landmark example depicting the necessity defense in law. After a shipwreck, Thomas Dudley and Edwin Stephens, along with a cabin boy named Richard Parker, were left stranded in a boat with no food or water to survive. As the days passed, the men grew weaker, and on the 18th day, Dudley suggested that they sacrifice one of their own to save the others. They decided to kill Parker, who was the weakest among them all, and finally the 2 of them fed on his flesh for four days until they were rescued.
When they were charged with murder, Dudley and Stephens argued the defence of necessity to survive. However, the court ruled that killing an innocent person to save one’s own life is not justified, even in extreme circumstances as this involved criminalintent of the 2. The court held that the necessity defense does not apply when human life is taken, and that Dudley and Stephens were guilty of murdering Peter .
Although the court initially sentenced them to death, the punishment was later commuted to 6 months of imprisonment. This case highlights the tension between the need to survive and the moral and legal principles that protect human life. It sets a precedent that the law does not permit the taking of an innocent life, even in the most desperate of situations.
Few other cases :-
●Tata cellular v/s Union of India
● Election Commission of India v/s Dr. Subramaniam Swamy.
●Rex v/s Bourne
● United States v/s Holmes
Conclusion:- The doctrine of necessity is thus an exception to “Nemo judex in causa sua”, which means, no one should be a judge in his own case. But according to this doctrine, a person, has a right to judge his own act as per the demand of the situation standing to his forefront so that he can critically analyse to take such an action which may cause minimum harm to person’s or property provided that his act should be done in good faith without involving any criminal intent even in case where he does a smaller harm .
Furthermore, This doctrine cannot be applied in each and every case, as per the guidelines of the hon’ble Supreme Court which stated that the doctrine cannot only be invoked in case of some Absolute necessity. Hence, the doctrine of necessity can be simply put as , when the individual is required to make a choice between 2 evils then he must likely choose the less evil option in order for the doctrine of necessity to be applied.
FAQS
What do you mean by Nemo Judex in Causa Sua ?
●”Nemo judex in causa sua” means no one should judge their own case. This principle ensures impartiality and fairness in decision-making by preventing individuals with a personal stake or bias from adjudicating a matter. It upholds the integrity of legal proceedings, promotes fair outcomes, and protects the rights of all parties involved by separating personal interests from decision-making.
What are the landmark judgements regarding the Doctrine of Necessity?
●R v/s Dudley and Stephens is the
Landmark judgement in this
Regard.
How does this relate to Indian Law?
● Section 19 of the newly adopted BNS 2023 encompasses within itself the doctrine of necessity which forms the part of General Exceptions in case when an offence is committed under the penalty law.
