Doctrine of Necessity

Introduction 

The doctrine of Necessity supports the exception to the rule of law in the extraordinary circumstance that requires persons to take some actions that are not as per or according to the rule of law. This doctrine allows the actions that otherwise were illegal, but with the situation present, they can be allowed on the grounds of necessity or in less time. This doctrine plays an important role in the safety of the people who were in unavoidable circumstances. However, this doctrine helps in the survival of people, but it can also be misused by people intentionally.

Henry de Bracton can be traced the foundation of this doctrine of necessity ,  that acts which are normally unlawful may be justified by necessity. Thus, this doctrine can be called a mechanism to help and risky, its applications should be determined carefully by the people. This doctrine allows some actions that are generally unlawful, but that can be considered justified or reasonable on the grounds of necessity and under certain conditions.

What is Doctrine 

The doctrine of necessity is a law which states in situations of extraordinary circumstances, adherence to legal provisions can be hampered, and action may be taken illegally for the safety of people. In India, section 81 of the Indian Penal Code(IPC) states about this doctrine that, in good faith, without ill intention take actions that may be dangerous to the life .Sometimes it can be permitted to commit some unlawful acts in extraordinary situations to avoid greater harm. In criminal law, it allows individuals to choose lesser evils than bigger danger actions. This doctrine basically lays the foundation for two legal maxims that are Necessitas non habet legem (necessity knows no law) and another Salus populi est suprema lex (the welfare of the people is the supreme law).

In situations or actions where there was no option rather than less harm, the benefit from the rule of law can be given to the people. The main and core part of the doctrine is that any act which is harmful or against any law like criminal, constitutional law to prevent greater harm that can be permitted. For example, if someone is driving a car on the highway within a limit that is lawful. But suddenly, a truck tanker filled with flammable oil is coming towards the car from the opposite side and in front of it was running a bus filled with passengers that stopped unfortunately. So the car driver has to apply the brake or to dug and  move towards the tanker to save the larger number of passengers in the bus .This is the example of how doctrine of necessity works and help the accused in it .

Evolution of the Doctrine 

The origin and start of this doctrine can be traced back to the English and Roman law. It got started from the Roman law, where in the court from some cases it was stated that necessity can be recognised as a cause or reason to do an unlawful or illegal act and to safeguard public welfare. This was later transferred to English law. In earlier years of the separation of Pakistan, there was a case among the Federation of Pakistan vs Maulvi Tamizuddin Khan(1955), the chief justice legally validated the actions by the governor general in the emergency by giving the reason of the use of necessity. This case was the core part of the start of the doctrine of necessity and also highlighted in which areas of the field it can be applied.

In India, the  case of Gullapalli Nageswara Rao vs. APSRTC (1958) played a notable and  key role in laying the foundation or principles  for the doctrine of necessity.”. In recent years, there have been many cases where the doctrine of necessity played an important part, where a large evil was avoided by conducting a lesser evil, which was in good faith. The doctrine of necessity can be found in criminal law in Part IV of the Indian Penal Code (IPC), where it contains ‘General Exceptions’. This thing is now taken as important as some laws because it is now widely used in some unfortunate situations where some unlawful actions may be taken.

Features of Doctrine 

The doctrine of Necessity has the following  features:-

1. Extraordinary situations -This doctrine applies when there is a situation where normal legal process can not be followed due to an emergency case.
2. Genuine reason – The Court will not entertain every case and will not rely on everyone who will cite this doctrine, but only those people with reasonable actions, good faith and without ill intent.
3. Dual area:- This doctrine can be applied to fields like criminal law and constitutional law.
4. Limited action – The doctrine can not be reasonably used in cases where, court has to cross-check if the doctrine can be applied or not.

Landmark Judgements

1. J. Mohapatra & Co. v. State of Orissa (1984) 

-This case is a landmark case for using the doctrine of necessity where a textbook committee, which where the authors of the books. This instance was challenged before the court on the basis of bias and choosing in own case.

-The case in the Supreme Court of India, stated that there should be no one judging their own actions or can not be judge in its case, but the court applied the doctrine of necessity if there were no author of the book in the committee, then there shall be no meaning of the committee and would endanger the system.

2. Election Commission of India v. Dr. Subramaniam Swamy (1996)

-In this case, the chief election commissioner had to decide the disqualification of a political party, and he had allegations of bias against one party .Dr. Subramaniam Swamy, a leader of the opposition party, opposed. The disputes arose among the symbols of the party. The chief commissioner was accused of bias while deciding the issue. The court supported  the Election Commission of India, giving reason  that a commissioner can’t disqualify or remove  himself. It was also stated that if CEC withdrew from the committee that there would be no authority for decision-making.

Limitations

1. Political Interest- This doctrine of necessity can be misused by some political parties by doing wrong and then taking the defence of this doctrine by having some influence.
2. Conflict with law- This doctrine sometimes comes with conflict with law, and overemphasising this law can be dangerous for other people.
3. Proof – The Defendant has to prove that there was no other option to do less harm and that it was done in good faith and without ill intention.

Related sections and articles

In India, the doctrine of necessity had been mentioned under section 81 of the Indian Penal code(1860) as “Nothing is an offence by reason of its being done with the knowledge that it is likely to cause harm, if it be done without any ill intention to cause harm, and in good faith for the purpose of avoiding other larger harm to person or property.”. It means that, having good faith and without ill intention and to avoid larger harm, lesser evil can be considered. The court has to reasonably think before coming to any conclusion.  

At the end, this doctrine is not directly stated and codified in the constitution or specific law about it, but it can be indirectly connected with other laws, like criminal or constitutional law. This doctrine, at the same level, ensures that people doing actions unlawful for avoiding some higher evil can be given some safety.

Conclusion

As discussed, the doctrine of necessity is that which gives relief to the people who have avoided larger harm by doing lesser evil in good faith and without ill intention. This is described in section 81 of the Indian Penal Code(IPC). It also has some challenges and limitations, like if it is used for doing wrong things and then seeking relief for it. The court mentions some exceptions for it, and the court should carefully verify them before acting on them. There have been some landmark cases related to it, like Election Commission of India v. Dr. Subramaniam Swamy (1996), which lays the basis for the doctrine of necessity. The doctrine is rooted in the maxim Necessitas non habet legem (necessity knows no law). It serves as a defence for individuals who breach the law while acting under compelling circumstances . In the recent cases, the Supreme Court of India stated that this doctrine will now be applicable to the absolute necessity, narrowing the area.

At the end, the doctrine of necessity can be called a boon or a ban; it will depend on how it is used. The core essential should be good faith and without malicious intent. The court and government should work on drawing the area and clarifying it so that it can be used. Over the recent years, this doctrine had evolved over time and now largely it is recongnized as a important principle in the court. 

Reference

1. https://blog.ipleaders.in/all-about-the-doctrine-of-necessity/#Doctrine_of_necessity_under_the_Indian_Penal_Code_1860
2. https://lawbhoomi.com/jus-necessitatis-the-doctrine-of-necessity/
3. J. Mohapatra & Co. v. State of Orissa (1984) 
4. Election Commission of India v. Dr. Subramaniam Swamy (1996)
5. Section 81 of the Indian Penal Code(IPC)

Written by Aryan Raj, an Intern under Legal Vidhiya.

Disclaimer: The materials provided herein are intended solely for informational purposes. Accessing or using the site or materials does not establish an attorney-client relationship. The information presented on this site is not to be construed as legal or professional advice, and it should not be relied upon for such purposes or used as a substitute for advice from a licensed attorney in your state. Additionally, the viewpoint presented by the author is personal.

Karan Chhetri

‘Social Media Manager’ and ‘Case Analyst’ of Legal Vidhiya.