Necessity Unit II

NECESSITY UNIT II Meaning Necessitas inducit privilegium quod jura privata (Necessity induces a privilege because of a private right) The act may be necessary 1. to exercise authority given by law 2. to avoid a greater harm 3. in the larger interest of public This is intentional damage to prevent even greater destruction or in defence of the realm. This concept is based on the Latin maxim of ‘Salus populi suprema lex esto’ which means that welfare of the people should be the supreme law and if a person is causing any damage to a person’s rights or property as to prevent greater harm, it is excusable. The Black’s Law Dictionary defines the word ‘necessity’ as ‘Controlling force; irresistible compulsion; a power or impulse so great that it admits no choice of conduct.’Necessity is a defence to both the criminal law and the civil law, that is, if an action was ‘necessary’ to prevent a greater harm, that can be used to avoid both criminal and civil liabilities. Section 81 of the Indian Penal Code Necessity is defined under Section 81 of the 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.” Act done to avoid other harm Section 81 • QUOD NECESSITAS NON HABET LEEGEM i.e. necessity knows no law. • Breaking •• S-81 gives legal protection to the doctrine of salvage i.e. self-preservation. • Permits • the words of law is not breaking the law so long as the intent of the law is not broken. a lesser evil to avert a greater evil. S-81 grants immunity to a man with respect to acts committed under compelling circumstances forced necessity. Conditions to be satisfied are • i) The act must have been done without any criminal intention to cause harm; • ii) The act must be done in good faith to prevent or avoid harm to other person or property • iii) Harm done in order to avert a greater harm. (mother’s life to be saved over a child in the womb) • Ex. A captain of a vessel, without his negligence finds suddenly a small boat within a short distance, and hits it under forced circumstances to save vessel. • Similarly, • Conflict • two pulling down a house to prevent great fire spreading to other areas. in the application of the Doctrine of Necessity (salvage) in areas – • i) Necessity and homicide • ii) Necessity and Larceny. (stealing bread to avert hunger) Cope v. Sharpe [1912] 1 KB 496 The defendant entered the plaintiff’s land to prevent the spread of fire to the adjoining land and prevent the damage which could have been caused. The plaintiff, in this case, sued the defendant for trespass but since the defendant’s act was considered to be reasonably necessary to save the property and from real and imminent danger, the court held that the defendant was not liable for trespass as he has committed an act of necessity. Types of Necessity Private Necessity: Private necessity usually involves trespassing or interfering with another’s property done by a person to protect himself or his property. One usually has the right to continue trespassing or using the person’s property for as long as the emergency is still ongoing. The private defence is a partial defence which is available to the defendant which means the defendant who commits trespass and claims the defence of private necessity, must still pay for any harm caused to the plaintiff’s property by his trespass. Public Necessity Public necessity means any action taken by public authorities/officials or private individuals to avert a public calamity which had a tendency to harm the public at large. This is applied when any trespass is done by a person to protect a greater community. Public Necessity is an absolute defence which means that the persons who have trespassed are not required to pay any compensation to the owner of the property. Generally, public employees like firefighters, police, army personnel claim public necessity. R v Dudley and Stephens 14 Q.B.D. 273 (1884) The case involved four men who were stranded at sea and resorted to cannibalism for survival. Facts: • In 1884, Thomas Dudley, Edwin Stephens, Edmund Brooks, and Richard Parker were cast adrift in a small lifeboat after their ship, the Mignonette, sank. • After several days without food or water, Dudley and Stephens decided to kill and eat the cabin boy, Richard Parker, who was already severely weakened, in order to survive. • They were rescued a few days later and confessed to killing Parker. • Dudley and Stephens were charged with murder. Legal Issue: Whether the killing of Richard Parker could be justified by the defense of necessity, given the dire circumstances the defendants found themselves in? According to them, there was no reasonable prospect of relief, rather than feeding upon the body of the boy. They would probably not have survived and the boy being in a much weaker condition was likely to have died before them. Both Dudley and Stephen claimed that they killed and ate Parker. Under the extreme situation, they had no choice but to kill someone out of necessity. When they were rescued, they were brought before the court and charged with murder. They tried to claim the defence that it was necessary for their survival to act in this manner. Judgment The court found Dudley and Stephens guilty of murder. The defense of necessity was rejected. The court held that taking an innocent life to save one's own was not justifiable, even in extreme situations. They were convicted and sentenced to death but this sentence was afterwards commuted by the Crown to six months’ imprisonment. Significance: This case is often cited in discussions of legal and moral philosophy, particularly concerning the limits of the necessity defense. It established the principle that necessity is not a defense to a charge of murder in English law. Analysis of Legal Principles: Defense of Necessity: The case clearly outlines that necessity cannot be a defense for murder. This has significant implications for legal principles, reinforcing the sanctity of human life and the notion that extreme measures cannot justify taking another person's life. Moral and Ethical Considerations: The case poses profound ethical questions about human behavior in life-anddeath situations. It forces a consideration of what actions are morally acceptable when survival is at stake and the limits of human endurance. Legal Precedent: "R v Dudley and Stephens" set a precedent in English law that has been referenced in numerous subsequent cases involving the defense of necessity. The case demonstrates the judiciary's role in balancing legal principles with moral considerations. Private defence This right is an affirmative defence which is used in a situation which possesses imminent threat or danger to a person’s life or property. It gives liberty to a person, but when that liberty is used for committing crimes or the right of private defence is used as means to give justification for any act forbidden by law the state has the power to impose severe punishment over such activities. Sec. 96 of IPC/Sec. 34 of BNS states that If any act which is forbidden by law is done with respect to defence of body or property it will not amount to an offence. The force used in that act must be proportionate and reasonable. Eg: If A (wrongdoer) in a dispute with B tries to kill B. B has every right to protect himself if there exists any apprehension of threat or danger to life. Under section 96-106 [Sec. 34 to 44 BNS]of Indian Penal Code, 1860 there are provisions governing the right of private defenceSection- 97, 98, 99 deals with both the aspect of right to defend body and property. Section- 100, 101, 102, 106 deals with the right to defend body. Section-103, 104, 105 deals with the right to defend property. Principles of private defence Reasonable apprehension of threat Proportionate force Available against wrongdoer • The offences caused by the wrongdoer shall be of that nature which automatically creates the reasonable apprehension of threat and danger in the mind of a person for which he shall take the protection of public authorities. • Proportionate force must be used by the person while exercising the right. • The right of private defence is available against all those persons who threaten to cause acts which are illegal and forbidden by law. Darshan Singh v. State of Punjab 2010 In the instant case the guidelines regarding right to private defence was stated• Self-help is the basic rule of law • When there is an imminent threat or danger to the life of a person the right of private defence can be exercised. • Reasonable defence. apprehension of threat can also give rise to the right of private • Proportionate force must be used by the person while exercising the right. • The accused is not required to prove the presence of private defence beyond the reasonable doubt. • Whenever there is an imminent threat or danger to the life of a person or of sustaining such bodily injury, a person can cause death or other harms to the assaulter. Devendra Bhai vs Megha Bhai [AIR 1986 Ori 226] In this case Court held that the principle of Private Defence extends not only to the right of person to protect oneself but also to protect other’s life, as also one’s wife, parent and children. Limitations of private defence [Sec. 99 of IPC] • If a person does an act with a benevolent intention which does not give rise to the assumption of any kind of threat or danger. • Proportionate • When force is to be used the person has the time to option/choice and take protection of the public official. • If an act is done or directed by a public official with bonafide intention that is, for the welfare of the general public, and when the act was of such nature that the person has time to take remedial measure and protection of the public authorities. Types of private defence Private defence to body As soon as a person has the reasonable assumption of the imminent danger or threat to the body by the wrongdoer the right to private defence can be availed by the person. It lasts until the assumption of danger continues. The danger must be of such nature which should be of imminent threat in the eyes of law. Private defence to property(movable and immovable) The right of private defence begins with the commencement of such reasonable apprehension which threats to cause imminent/forthcoming danger. In case of theft, the assumption continues until the offender has effected his withdrawal from the property or either the person has taken the protection of a public official or the property has been retrieved. Against robbery, it lasts as long as the offender has caused or attempts to cause death, wrongful restraint, or hurt or even causes fear of instant hurt death or wrongful confinement. In the case of criminal trespass, it continues until the wrong-doer continues its commission. Illustrations • ‘A’ snatched the phone of ‘B’. In order to retrieve his phone back he followed B and brutally assaulted him which resulted in his death. B will be charged with murder and the right of private defence will not be available to him. • If A, (lunatic) tries to kill B, then he has the right to private defence against A. • If A who is heavily intoxicated comes under a heated argument with B and tries to stab him though he is not in his senses but the right of private defence is still available to B.