Law and You > Criminal Laws > Bharatiya Nyaya Sanhita, 2023 > Chapter III: General Exceptions > Doctrine of Necessity or Doctrine of Necessitatis (S. 19 BNS)
The Doctrine of Jus Necessitatis, often referred to as the โDoctrine of Necessity,โ is a principle under the Bharatiya Nyaya Sanhita, 2023, that permits actions which would otherwise be considered illegal if they are necessary to protect vital national interests or life. The doctrine is primarily invoked during times of emergency or exceptional circumstances, when a state or individual is faced with a choice between violating a legal norm or suffering a greater harm or loss. In essence, it justifies acts that might be deemed unlawful if they are carried out to avert a crisis, such as protecting sovereignty, national security, or survival.
Historically, this doctrine has been applied in various contexts, such as self-defence, humanitarian intervention, and situations involving the preservation of life or territorial integrity. The underlying philosophy is that certain actions, although potentially infringing upon established legal norms, may be excused due to the urgent need to safeguard fundamental interests. In this article, we shall discuss the Doctrine of Necessity, which is the basis of Section 19 BNS.
Chapter III of the Bharatiya Nyaya Sanhita, 2023 containing Sections 14 to 44 deals with provisions for General Exceptions. A person committing an offence under the circumstances and exceptions mentioned in Chapter III is excused from criminal liability and punishment shall not be imposed upon him in such case. Section 19 of Bharatiya Nyaya Sanhita, 2023 is one such provision that deals with the act done in necessity. It is based on the doctrine of jus necessitatis. This doctrine emanates from two maxims: necessitas non habet meaning necessity knows no law and necessitas vincit legume necessity meaning necessity.
The Doctrine of Jus Necessitatis:
The term โnecessityโ is defined in Black lawโs dictionary as aย controlling force; irresistible compulsion; a power or impulse so great that it admits no choice of conduct. This doctrine is based onย โSalus populi suprema lex estoโ which means that the welfare of people must be supreme.
The doctrine of the jus necessitatis recognizes that the law has to be broken to achieve a greater good. According to doctrine the violation of a law may be excused by necessity. Defence of necessity applied, when a person in order to prevent a greater harm to any person or property from taking place, commits a crime or a criminal act during an emergency situation, wherein accused can escape criminal liability because his/her act was justified as he/she had the intention to prevent a situation which would cause a greater harm as compared to the criminal act committed by him or her. This is not a rule of general application in international law, but it may be applied in some exceptional cases for reasons of equity. This maxim may be invoked for no better reason than as a cynical excuse for departing from oneโs legal obligations. The illustration of Section 19 explains how the Doctrine of Jus Necessitatis works. It is to be noted that although section 19 does not specifically refer to greater evil or lesser evil, it in effect deals with the case of the lesser evil.
Examples:
- Fire is spreading and to prevent the spreading of fire further, if someone pulls down the hut or house, then he has not committed a crime.
- If a small child is locked in a house, if someone break open the door to rescue the child has not committed a crime.
- If A attacks against the person or property of B. B can kill A to save his life or property, B has not committed a crime. (Right of private defence, Sections 96 โ 106)
- A tries to commit rape against B. B to save herself kills A. C has not committed a crime.
- A and B drowning in sea catch hold of plank which can support only one person. Stronger among the two throws out the weaker and catch hold of the plank. The weaker person dies of drowning in the sea. The stronger person cannot be convicted for a crime because of self-preservation.
Section 19 BNS:
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.
Explanation:
It is question of fact in such a case whether 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.
Illustrations:
(a)ย 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.
(b)ย 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 immiยญnent as to excuse Aโs act. A is not guilty of the offence.
Note:
This Section corresponds to Section 81 of the Indian Penal Code, 1872
Ingredients of Section 19 BNS:
- the act must have been done under good faith;
- there must not be mens rea (absence of mens rea).
- there is no other choice.
It embodies the principle that where the accused chooses lesser evil, in order to avert the bigger, then he is immune. An act of the accused in order to prevent greater harm without any criminal intention falls under the ambit of necessity. Such an act must be done in good faith in order to prevent the happening of greater harm. The question of motive is of no importance, where positive evidence does exist in the favour of the accused.
The genesis of this principle emanates from two maxims: quod necessitas non habet legum- necessity knows no law and necessitas vincit legum, necessity overcomes the law. This doctrine of necessity recognises that the law has to be broken to achieve a greater good. This section mandates act to be done in good faith and without any criminal intention i.e., there should be absence of Mens Rea.
Killing a person in self-defence may appear to be an example of necessity. While self-defence may overlap necessity, the two are not the same. Private defence operates only against aggressors. Generally, the aggressors are wrongdoers, while the person against whom action is taken by necessity, may not be an aggressor or wrongdoer. Unlike necessity, private defence involves no balancing of values.
Case Laws:
Inย Gopal Naidu v. Emperor (1923) ILR 46 Bom 605 case, a drunken man was carrying a revolver in his hand was disarmed and put under restraint by the police officers for the offence of public nuisance. ย Though the offence of public nuisance was a non-cognizable offence without a warrant, it was held that they can plead justification under this defence. In this case, the Madras High Court held that they could plead justifications under this section. Further added, the person or property to be protected may be the person or property of the accused himself or of others.
In R v. Dudley and Stephens, 14 Q.B.D. 273 (1884) case, three seamen and a minor cabin boy were the crew of an English vessel. Due to the shipwreck, the three seamen and the boy escaped and were put into an open boat. Dudley suggested sacrificing the minor boy as he was too weak to which Brook refused. On the 20th day, when they had no food for eight days and no water for five days, Dudley and Stephens without the consent of Brooks killed the boy as he was close to death and had no family and fed on the flesh and blood for four days to survive. On the fourth day, they were picked up by a passing vessel and subsequently they were prosecuted for the offence of murder of the boy. The accused pleaded the defence of necessity to get exemption from the criminal liability. The Privy Council held they are guilty of murder and convicted them on the ground of, self-preservation is not an absolute necessity, no man has a right to take anotherโs life to preserve his own, and there is no necessity that justifies homicide.
In Dhania daji v. Emperor (1868) 5 BHC (CrC) 59 case, the accused was a toddy tapper. He observed that his toddy was being stolen from the trees regularly. To prevent it, he poisoned today in some of the trees. He sold toddy from other trees. However, by mistake, the poisoned toddy was mixed with other toddy, and some of the consumers were injured and one of them died. He was prosecuted. During the trial, he took the defence of Section 81 IPC (S. 19 BNS). The Privy Council did not accept his contention of jus necessitates, as mixing poison was done by the accused intentionally and also with a knowledge that it would cause grave danger to the people. The accused was convicted and punished under Section 328 IPC (S. 123 BNS).
In United States v. Holmes, 18 U.S. 5 Wheat. 412 412 (1820) case, the accused was a member of the crew of a boat after a shipwreck. Fearing that the boat would sink, he under the order of the mate threw 16 male passengers overboard. The accused though not convicted for murder, was convicted for manslaughter and sentenced to six months imprisonment with hard labour.
Killing a person in self-defence may appear to be an example of necessity. While self-defence may overlap necessity, the two are not the same. Private defence operates only against aggressors. Generally, the aggressors are wrongdoers, while the person against whom action is taken by necessity, may not be an aggressor or wrongdoer. Unlike necessity, private defence involves no balancing of values.
Distinguishing between Section 18 and Section 19 BNS:
| Section 18 | Section 19 |
| Section 18 deals with accidents | Section 19 deals with inevitable accidents. |
| Section 18 stipulates the absence of criminal intention as well as knowledge. | Section 19 stipulates the absence of criminal intention alone. |
| Section 18 contemplates a situation where the accused has no intention and knowledge that he is likely to cause harm | Section 19 clearly contemplates a situation where the accused has knowledge that he is likely to cause harm, but is specifically stipulated that such knowledge shall not be held against him. |
Conclusion:
A person committing an offence under the circumstances and exceptions mentioned in Chapter IV is excused from criminal liability and punishment shall not be imposed upon him in such case. Section 19 of BNS is based on the doctrine of jus necessitatis or docrine og necessity.
In conclusion, the Doctrine of Jus Necessitatis remains a complex and controversial principle within international law. It operates on the premise that certain actions, which would typically be prohibited by legal norms, can be justified when undertaken out of necessity to safeguard national interests, security, or survival. The doctrine has historical roots in state practice, particularly in situations involving self-defense or the protection of territorial integrity. It serves as a legal and moral exception in times of emergency, allowing states to act outside the bounds of standard legal frameworks when faced with imminent threats or crises.
However, the application of Jus Necessitatis is fraught with challenges and risks. The flexibility inherent in the doctrine can lead to subjective interpretations, where the justification of necessity might be used as a pretext for actions that exceed what is truly needed. This raises concerns about potential abuses of power, as the threshold for invoking necessity can be difficult to define and regulate. Furthermore, the principle does not provide a clear-cut solution to balancing the competing interests of national survival and international legal obligations.
Despite these challenges, Jus Necessitatis continues to play a crucial role in shaping the conduct of states in exceptional circumstances. Its application highlights the tension between upholding legal norms and responding to urgent, real-world situations where strict adherence to law could result in greater harm. To prevent misuse, the doctrine requires careful scrutiny, ensuring that any action taken under its justification is proportionate, limited in scope, and consistent with broader international legal principles, such as human rights and the protection of peace. As global challenges evolve, the relevance and boundaries of Jus Necessitatis will likely continue to be debated, emphasizing the need for a balanced, nuanced approach.
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