DOES NECESSITY JUSTIFY HOMICIDE? By Anjali Jaiswal from NMIMS School of Law

In all human institutions, a smaller evil is allowed to procure a greater good.

-Oliver Goldsmith, The Vicar of Wakefield

Necessity is based on the principle of expediency that the law recognizes necessity as a defense in criminal cases. In other words, what necessity forces, it justifies, namely quod necessitas, cogit defendit. (Necessity means no law). Necessity is also based on the maxim salus populi suprema lex, i.e. ‘the welfare of the people is the supreme law’. It typically involves a defendant arguing that he committed the crime in order to avoid a greater evil created by natural forces.

Section 81 of the Indian Penal Code, which may be of relevance here, states certain conditions where criminal liability may be avoided - An act, which 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 had followed, would have inflicted upon him or upon others whom he was bound to protect from 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.[i]

The test really is: there must be a situation in which the accused is confronted with a grave danger and he has no choice but to commit the lesser harm, may be even to an innocent person, in order to avoid the greater harm. Here the choice is between the two evils and the accused rightly chooses the lesser one.[ii] The defense of necessity does not give blanket immunity from liability in all circumstances. It is available only in exceptional cases. The Section clearly contemplates a situation where the accused has knowledge that he is likely to cause harm, but it is specifically stipulated that such knowledge shall not be held against him.[iii]

The defense of necessity is controversial in nature. The judicial body is suspicious of it because it fears that it may be subversive. The question whether the doctrine of necessity can be applied as a justification for killing another human being poses a dilemma. The general view is that necessity is no defense to a charge of murder[iv]. But the question becomes much more difficult in cases where there is no other choice.

Killing a person in self-defense may appear to be an example of necessity. While self-defense may overlap necessity, the two are not the same. Private defense operates only against the aggressor. Generally, the aggressors are wrongdoers, while the persons against whom the action is taken by necessity, may not be aggressors or wrongdoers. Unlike necessity, private defense involves no balancing of values.[v] 

The harm caused need not be necessarily less than the harm averted, though this question would become material while judging the good faith of an act. In the landmark case on the subject of R v. Dudley & Stevenson the court after discussing various issues involved at length in a situation where a man’s own life is in extreme cases of hardship laid down the following principles, viz-

1. Self-preservation is not an absolute necessity;
2. No person has a right to take another’s life to preserve his own
3. There is no necessity that justifies homicide.[vi]

Necessity considers circumstantial morality and provides one to be saved from his circumstantial offense. The immunity from criminal liability under this section will be available where an offense is committed without any criminal intention, to inflict harm and in good faith and if such offense is committed for the purpose or avoiding other harm or property.

[i] Stephen’s Digest of Criminal Law, 9th Edn., Art. 11.

[ii] Southwark London Borough Council v. Williams, (1971) Ch 734, (1971) 2 All ER 175.

[iii] GAUR, K.D. Textbook On Indian Penal Code. 5th ed. Universal Law Publishing,2015

[iv] Glanville Williams, Textbook of Criminal Law,2^nd ed.

[v] Pillai, P.S.A. Criminal Law. 12^th ed. 2014.

[vi] Hari Singh Gour, Penal Law of India , Vol I ,11th ed. Law publishers,1998.

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