Doctrine of Necessity (Section 81 IPC)
Introduction
The doctrine of necessity is a general defence in criminal law. It applies when a person causes harm to prevent a greater harm.
Section 81 IPC recognises that in certain situations, breaking the law may be justified to avoid a bigger danger.
Meaning / Definition
Necessity means doing an act to prevent a greater harm, even if the act itself causes some harm.
Under Section 81 IPC:
- The act must be done without criminal intention (mens rea)
- The act must be done in good faith (honestly with due care)
- The purpose must be to avoid greater harm
The principle is based on the idea of choosing the lesser harm over the greater harm.
Modes or Types
Essential Conditions for Necessity
Absence of Criminal Intention
- The act should not be done with the intention to cause harm
- However, knowledge of possible harm may exist
Good Faith
- The act must be done honestly with due care and attention
Prevention of Greater Harm
- The act must aim to avoid a bigger danger
- There must be a reasonable belief that harm will occur if no action is taken
Scope of Protection
- Protection can be for one’s own person or property
- It can also be for protecting others
Limitation of Doctrine
- Necessity does not justify all acts
- Taking another person’s life is generally not allowed
Important Case Law
-
R v. Dudley and Stephens
- Accused killed a boy to survive after shipwreck
- Held: Guilty of murder; necessity is not a defence for killing an innocent person
-
United States v. Holmes
- Passengers were thrown overboard to save the boat
- Held: Convicted for manslaughter
-
Gopal Naidu v. Emperor
- Police restrained a drunken man to prevent harm
- Held: Act justified under necessity
Distinction / Comparison
| Basis | Necessity | Private Defence |
|---|---|---|
| Purpose | Prevent greater harm | Protect against attack |
| Against whom | May affect innocent persons | Only against wrongdoer |
| Nature | Balancing of harms | Right of protection |
| Example | Breaking property to save life | Hitting attacker in self defence |
| Basis | Section 80 (Accident) | Section 81 (Necessity) |
|---|---|---|
| Intention | No intention or knowledge | No intention, but knowledge may exist |
| Situation | Unexpected event | Conscious choice to avoid harm |
| Example | Injury during lawful act | Causing harm to prevent bigger harm |
Practical Example
A driver swerves his car to avoid hitting a group of people and damages property.
- The act is done to prevent greater harm
- There is no intention to cause damage
- The act may be protected under necessity
Summary
- Necessity is a defence when harm is caused to avoid a greater harm.
- Section 81 IPC requires absence of criminal intention and presence of good faith.
- Knowledge of harm may exist, but intention to cause harm must be absent.
- The doctrine is based on choosing lesser harm over greater harm.
- It does not justify all acts, especially taking life of an innocent person.
- It is different from private defence and accident.