Law and You > Criminal Laws > Indian Penal Code > Doctrine of Jus Necessitatis: Section 81 of IPC
In this article, we shall discuss the Doctrine of Jus Necessitatis, which is the basis of Section 81 of IPC
Chapter IV of the Indian Penal Code, 1860 containing Sections 76 to 106 deals with provisions for General Exceptions. 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 81 of IPC is one such provision that deals with the act done in necessity. Section 81 of IPC is based on the doctrine of jus necessitatis. This doctrine is also called the doctrine of necessity. 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 “necessity” is defined in Black law’s dictionary as a controlling force; irresistible compulsion; a power or impulse so great that it admits no choice of conduct. This doctrine is based on ‘Salus populi suprema lex esto’ 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 one’s legal obligations. The illustration of Section 81 explains how the Doctrine of Jus Necessitatis works. It is to be noted that although section 81 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 – 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 81 IPC:
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) 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) 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 imminent as to excuse A’s act. A is not guilty of the offence.
Ingredients of Section 81:
- the act must have been done under good faith;
- there must not be mens rea (absence of mens rea).
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:
In 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. 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.
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 another’s 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. 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
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 80 and Section 81:
| Section 80 | Section 81 |
| Section 80 deals with accidents | Section 80 deals with inevitable accidents. |
| Section 80 stipulates the absence of criminal intention as well as knowledge. | Section 81 stipulates the absence of criminal intention alone. |
| Section 80 contemplates a situation where the accused has no intention and knowledge that he is likely to cause harm | Section 81 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 81 of IPC is based on the doctrine of jus necessitatis. The doctrine of the jus necessitates recognizes that the law has to be broken to achieve a greater good. Sect