DOCTRINE OF NECESSITY

Nemo in propria causa judex, esse debet” is a Latin maxim that states that no one should
be made the judge in their own cause. It is one of the principles of natural justice. The
aforesaid maxim also states that if an individual is provided with the authority and power of
taking decisions then they must act in a fair and unbiased manner without prejudice.
UNDERSTANDING THE DOCTRINE OF NECESSITY
The principles of natural justice are the most basic legal parameters that are considered
whenever a court of law is to arrive at a decision. However, when it comes to one of the
principles of natural justice i.e., the rule against bias, there exists an exception and that is the
doctrine of necessity. The doctrine of necessity enables the legal authorities to function in the
following manner –
 To take certain actions that must be taken at a particular moment, wherein such acts
would not otherwise be regarded within the scope of the law in a general legal
situation.
 To invoke and apply the doctrine of necessity only in such circumstances where there
is an absence of a determining authority to take the decision regarding a case.
In a situation where an option is given to either let a person act in a biased manner regarding
a matter or to quash the matter itself, the preference will be given to taking action in a biased
manner, even though the decision might be affected by the bias of the deciding authority. In
cases similar to the aforementioned situation, the rule against bias is defeated by the rule of
necessity. The only condition here is that such deciding authority must mandatorily conclude
the matter at hand.
EXCEPTIONS TO THE DOCTRINE OF NECESSITY
The doctrine of necessity shields the adjudicators from bias. However, the said doctrine does
not give the license to use the excuse of bias in deciding every case. This means that the
doctrine of necessity disqualifies such adjudicators who resort to bias while arriving at
decisions. But, there are certain exceptions wherein such biased decisions given by the
adjudicator are held valid. The exceptions are as follows –
 There is no availability of another competent person for arbitration.
 In the absence of whom (the adjudicator) a quorum cannot be formed.
 There is no possibility of establishing another competent tribunal.
In case the doctrine of necessity is invoked in every legal matter then there is a high
possibility that it would be in favour of the defaulting party. Simultaneously, if the doctrine of
necessity is totally abandoned then it would terminate the decision thereby not providing any
justice at all to either of the parties.
Before invoking the doctrine of necessity, it is pertinent to critically analyse whether the said
doctrine really needs to be invoked or not to arrive at a decision. This strengthens and
improves the decision-making power. The doctrine of necessity enables parties to challenge
and question the administrative actions in court. But while deciding the validity of an
administrative action it must be noted that unless the predetermined concepts are capable
enough of influencing the bias of the judge in their mind, such administrative action cannot
be held invalid.
DOCTRINE OF NECESSITY UNDER THE INDIAN PENAL CODE, 1860

The doctrine of necessity can be found in Indian criminal law. Chapter IV of the Indian
Penal Code, 1860 contains the provisions of ‘General Exceptions’ under Sections 76 to
106. If an individual commits any of the offences under the exceptions or circumstances as
stated in Chapter-IV, then such individual is exempted from criminal liability. The individual
will not face any punishment. The doctrine of necessity is also included in such general
exceptions under Section 81 of the IPC.
Section 81 of the IPC talks about such acts which are likely to cause harm but where such
acts are done without any criminal intent to cause harm. Such an act must also be done in
good faith in order to avoid or prevent any kind of further harm to an individual or any
property. However, the risk of doing such an act will be weighed against the nature and need
of each situation.
In the case of preventing a harmful situation, an individual is given two options that result in
some harm either way. In such a situation, to avoid or prevent greater harm, an individual due
to utter necessity is compelled to commit an act that would otherwise be considered as an
offence. In simple terms, the individual is required to choose between two evils and they
must rightly choose the less evil option in order for the doctrine of necessity to apply.
ESSENTIAL ELEMENTS OF NECESSITY UNDER IPC ARE:
The act must be done without any criminal intention to cause harm.
The act must have been done in good faith.
The act must have been done to prevent or avoid some other harm.
JUDICIAL APPROACH TOWARDS THE DOCTRINE OF NECESSITY

 UNITED STATES V. HOLMES (1842)

In this case, an American vessel by the name ‘William Brown’ containing 65 passengers and
17 crew members hit an iceberg and sank rapidly. As a result, the longboat was cast adrift in
the stormy sea. In order to prevent the boat from being sunk, the members of the crew threw
some of the passengers overboard. Later, when a case came up for the trial of one of the crew
members, the court held that such situations of necessity may be considered a defence against
the charge of criminal homicide. However, the court stated that those who are sacrificed must
be fairly selected depending on the group of people present.
 REX V. BOURNE (1938)
In this case, a 14-year-old young girl became pregnant because she was raped by five
soldiers. The defendant was a gynaecologist. He performed an abortion with the consent of
the girl’s parents since he believed that the rape victim could die if she was permitted to give
birth. After hearing the facts of the case, the court held the defendant as not guilty of the
offence of unlawfully procuring a miscarriage. The defendant was found not guilty because
he acted in good faith by performing his duty as a gynaecologist.
  ELECTION COMMISSION OF INDIA V. DR. SUBRAMANIAM SWAMY
(1996)
In this case, it was held that if the Chief Election Commission entails a possibility of bias,
then their participation is not mandatory and likewise the doctrine of necessity will not be
applicable. However, a proper course for them was laid down wherein they could call for a
meeting and withdraw from the meeting thereby leaving it to the other members of the
commission to make a decision. Only in the cases where there is a conflict between them, the
doctrine of necessity will be applied. Therefore, in this case, the doctrine of necessity was
changed into the doctrine of absolute necessity which in turn established that the said doctrine
can only be invoked in cases of absolute necessity.
CONCLUSION
The doctrine of necessity is an exception to the principle of ‘Nemo judex in causa Sua’.
According to the said principle, on the basis of bias, an authority is liable to be disqualified.
When the doctrine of necessity is invoked, it acts as a defence even when the law is violated
making the decision unbiased and valid. However, the said doctrine can only be invoked in
certain situations wherein if the doctrine is not invoked, then it would lead to the total
termination of the matter thereby causing greater harm. Further, the said doctrine cannot be
applied in every case, i.e., the Hon’ble Supreme Court stated that the said doctrine can only
be invoked in case of absolute necessity.

PRIVATE DEFENCE UNDER IPC

MEANING OF PRIVATE DEFENCE
Private defence refers to using illegal actions to protect oneself, another person, or property
or to prevent criminal activity. Sections 96 to 106 of the Indian Penal Code, 1860, contain
provisions that establish the right of private defence available to every citizen of India.
According to the Indian Penal Code, “Nothing is an offence which is committed to exercising
the right of private defence.” This means that any harm or injury caused to a person while
defending against external force or damage is not considered an offence under the code.
In simple terms, private defence refers to using actions that may generally be considered
illegal to protect oneself, another person, or property or to prevent criminal activity. Under
Article 51(a)(i), the Constitution of India imposes a fundamental duty on the State to protect
public property and renounce violence.
Thus, the primary duty of the State is to protect its citizens and their property from harm.
However, in situations where state assistance is not available, and there is an immediate and
unavoidable danger, an individual is entitled to use force to protect themselves from harm or
injury.
While “private defence” is not specifically defined in the criminal code, it has evolved over
the years through court judgments. The primary purpose of granting this right to every citizen
was to eliminate their hesitation in taking necessary (though potentially illegal) measures to
protect themselves due to fear of prosecution.

INGREDIENTS FOR PRIVATE DEFENCE

Section 97 laid down ingredients for private defence:

 Each and every person has right to private defence

 There must be apprehension or fear of harm to body or property
 Recourse to calling public authorities is not available
 An offence amounting to commit theft, robbery, mischief or criminal trespass
is taking place.
IPC SECTION 96. THINGS DONE IN PRIVATE DEFENCE
Nothing is an offence which is done in the exercise of the right of private defence.
The right of self-defence, as outlined in Section 96 of the Indian Penal Code, is not absolute
and is qualified by Section 99. Section 99 states that the right of private defence does not
extend to inflicting more harm than necessary for defence.
In a free fight, where both parties are engaged in a mutual conflict, neither party can claim
the right of private defence, and each individual is responsible for their own actions. While
the law does not expect a person whose life is in danger to precisely measure the extent and
degree of force used in their defence, it also does not condone the use of force
disproportionate to the injuries received or threatened and goes beyond what is required in the
situation.
The burden of proving the right of private defence rests on the person invoking it. However,
an accused may be acquitted based on the right of private defence even if they have not
explicitly pleaded it. Courts have the authority to consider and apply exceptions in such
cases. It is important to note that failure to raise a defence explicitly does not permanently
foreclose the right to rely on an exception. The burden on the accused to prove any fact can
be discharged through the defence or prosecution evidence by establishing a preponderance
of probability.
The right of private defence is an act of defence, not an offence. It cannot be used as a shield
to justify aggression. Each case requires a careful assessment of the facts and circumstances
to determine whether the accused acted within the scope of this right. Merely assuming a
possibility of an attack without a reasonable basis does not entitle someone to exercise this
right.
The distance between the aggressor and the target may also be a factor in determining
whether a gesture amounts to an assault. Still, there is no precise yardstick as it depends on
the specific situation, the weapon used, the background, and the degree of the threat to attack,
among other factors.
The right of private defence in IPC can absolve a person from guilt, even if it results in the
death of another person, under the following circumstances:
  If the deceased was the actual assailant.
 Suppose the offence committed by the deceased necessitated the exercise of the right
of private defence of body and property. In that case, it falls within the categories
enumerated in Sections 100 and 103 of the Penal Code.
These provisions acknowledge that the right of private defence can extend to causing the
death of another person in specific situations where the conditions mentioned above are met.
KAMPARSARE VS PUTAPPA
In the Kamparsare vs Putappa case, the court held that a passer-by who chased and beat a boy
in the street, raising a cloud of dust, committed no offence. The court considered this act as
an exercise of the right of private defence.

SECTION 97: RIGHT OF PRIVATE DEFENCE OF THE BODY AND PROPERTY

Under Section 97 of the Indian Penal Code, every person has the right to defend their own
body or the body of any other person against any offence affecting the human body. They
also have the right to defend their property, whether movable or immovable, against theft,
robbery, mischief, or criminal trespass.The right of private defence is limited to the extent of
absolute necessity and should not exceed what is necessary to defend against aggression. The
person exercising this right must have a reasonable apprehension of danger from the
aggressor.The right of private defence can be invoked when an offence is committed or
attempted against the person exercising this right or any other person. The right of private
defence extends not only to one’s own body and property but also to the defence of the body
and property of any other person.

Unlike English law, under Section 97 of the IPC, even a stranger can defend the person or
property of another person, and there doesn’t need to be a pre-existing relationship between
them.

However, the true owner’s right to dispossess a trespasser exists only if the trespasser has not
yet accomplished their mission. If the trespasser has successfully gained possession and the
true owner is aware of this, the law requires the true owner to seek legal remedies to
dispossess the trespasser.

The burden of establishing the plea of right of private defence lies on the accused, but they
can show that this right is established or can be sustained based on the prosecution evidence
itself. The right of private defence is preventive and not punitive or retributive.

In the case of Chotelal vs State, it was held that if B assaulted A with a lathi while A was
trying to demolish a structure on a disputed land, B had the right to defend his property
because A was responsible for the crime of waste.

IPC SECTION 98: RIGHT OF PRIVATE DEFENCE AGAINST THE ACT OF A

PERSON OF UNSOUND MIND, ETC
Section 98 of the Indian Penal Code states that when an act, which would otherwise be an
offence, is not considered an offence due to factors such as youth, lack of maturity of
understanding, unsoundness of mind, intoxication, or any misconception on the part of the
person committing the act, every person has the same right of private defence against that act
as they would have if the act were considered an offence.
Section 98 establishes that the physical or mental capacity of the person against whom the
right of private defence is exercised is not a barrier to exercising that right. The right of
private defence of the body exists against all attackers, regardless of their mental State or
intention (mens rea).

IPC SECTION 99: ACT AGAINST WHICH THERE IS NO RIGHT OF PRIVATE

DEFENCE
The right of private defence in IPC does not apply when there is no reasonable apprehension
of death or grievous hurt caused by an act committed or attempted by a public servant acting
in good faith under the pretext of their official duty, even if the act may not be strictly
justifiable by law.
Similarly, there is no right of private defence when the act is committed or attempted under
the direction of a public servant acting in good faith under the colour of their office, even if
the direction may not be strictly justifiable by law. The right of private defence cannot be
exercised when there is sufficient time to seek the protection of the public authorities.
It is important to note that the right of private defence should not result in causing more harm
than necessary for defence.
Explanation 1: A person is not deprived of the right of private defence against an act
performed or attempted by a public servant unless they know or have reason to believe that
the person is a public servant.
Explanation 2: A person is not deprived of the right of private defence against an act
performed or attempted under the direction of a public servant unless they know or have
reason to believe that the person is acting under such direction. This exception also applies if
the person states the authority under which they act or if they have written authority unless
such authority is demanded and produced.
Section 99 of the Indian Penal Code establishes the conditions and limitations for
exercising the right of private defence. It grants individuals a defensive right rather than an
offensive one. It empowers individuals to protect themselves and others when there is a
reasonable apprehension of danger to life and property. The section imposes restrictions on
the exercise of this right.
CASE: EMPEROR VS MAMMUN
In this case, five accused individuals armed with clubs assaulted a man cutting rice in their
field on a moonlit night. The victim suffered severe injuries, including six skull fractures, and
died at the scene. The accused claimed the right of private defence of their property.
However, it was held that there is no right of private defence when there is sufficient time to
seek the protection of public authorities, as per Section 99.
IPC SECTION100: WHEN THE RIGHT OF PRIVATE DEFENCE OF THE BODY
EXTENDS TO CAUSING DEATH
The right of private defence of the body allows for the voluntary causing of death or harm to
the assailant under certain circumstances. These circumstances include:
1. When the assault causes reasonable apprehension of death
2. When the assault causes reasonable apprehension that grievous hurt may be consequence
of such assault.
3. When the assault is done with the intention of committing rape
4. Or the gratifying unnatural lust
5. Or kidnapping
6. Or of abducting
7. Or of wrongful confinement of a person in such a way that he would be unable to have
recourse to the public authorities for this release.
To invoke Section 100 of the Indian Penal Code, four conditions must be met:
(1) The person exercising the right of private defence must be free from fault in bringing
about encounter.
(2) There must be present an impeding peril to life or of great bodily harm, rape, unnatural
lust, kidnapping or abduction, wrongful confinement etc.
(3) There must be no safe or reasonable mode of escape by retreat, and
(4) A necessity for taking assailant’s life.
CASE: NAND KISHORE LAL
In this case, the accused, who were Sikhs, had abducted a Muslim-married woman and
converted her to Sikhism. After almost a year, the relatives of the woman’s husband
demanded her return, but the accused refused. The woman herself expressed her
unwillingness to rejoin her Muslim husband.
The husband’s relatives then attempted to take her away forcefully. The accused resisted, and
during the altercation, one of them struck a blow to the head of the woman’s assailants,
resulting in their death. It was held that the accused had the right to defend the woman against
her assailants under Section 100; therefore, they had not committed an offence.
IPC SECTION101: WHEN SUCH RIGHT EXTENDS TO CAUSING ANY HARM
OTHER THAN DEATH
If the offence does not fall into any categories listed in the preceding section, the right of
private defence does not extend to causing the assailant’s death. However, it does permit
causing harm to the assailant other than death within the boundaries specified in Section 99
of the Indian Penal Code.
In the case of Mohinder Pal Jolly v. State of Punjab, the court held that the factory owner,
who had fatally shot a worker in response to brickbat throwing by the workers, could not
claim the protection of the right of private defence. The court determined that there was no
reasonable apprehension of death or grievous hurt in that situation, thereby negating the
factory owner’s claim to the right of private defence.
IPC SECTION102: COMMENCEMENT AND CONTINUANCE OF THE RIGHT OF
PRIVATE DEFENCE OF THE BODY
The right of private defence of the body under IPC is triggered when there is a reasonable
apprehension of danger to the body due to an attempted or threatened offence, even if the
offence has not been committed yet. This right remains in effect as long as the apprehension
of danger persists. However, the apprehension of danger must be reasonable and not based on
fanciful beliefs. It is important to note that the danger must be present and imminent, and the
right of private defence does not arise if there is no actual attack.
IPC SECTION 103: WHEN THE RIGHT OF PRIVATE DEFENCE OF PROPERTY
EXTENDS TO CAUSING DEATH
The right of private defence of property allows for the voluntary causing of death or harm to
the wrongdoer within the limitations specified in Section 99 if the offence that triggers the
exercise of this right falls into certain categories. These categories include robbery, house-
breaking by night, mischief by fire committed on a building, tent, or vessel used as a human
dwelling or for property storage, and theft, mischief, or house-trespass under circumstances
that reasonably cause apprehension of death or grievous hurt if the right of private defence is
not exercised.
Section 103 of the Indian Penal Code (IPC) specifically deals with the right of private
defence of property, while Section 100 pertains to the right of private defence of the body.
Section 103 justifies using force, including causing death, in cases of robbery, house-breaking
by night, arson, and certain types of theft, mischief, or house trespass that reasonably raise
the apprehension of serious harm. It is important to note that the right of private defence can
only be claimed by the property’s true owner, and it cannot be exercised against a trespasser
who has already established possession.
In the case of Mithu Pandey v. State, the accused protested against the illegal collection of
fruit from trees on their possessed property. During an altercation, one of the accused suffered
multiple injuries, and the accused used force that resulted in death. The Patna High Court
held that the accused were entitled to the right of private defence, including causing death, as
the fourth clause of Section 103 was applicable in this situation.
SECTION104 IPC: WHEN SUCH RIGHT EXTENDS TO CAUSING ANY HARM
OTHER THAN DEATH
According to Section 104 of the Indian Penal Code (IPC), if the offence that occasions the
exercise of the right of private defence is theft, mischief, or criminal trespass but not of any
of the descriptions mentioned in the previous section (referring to Section 103), the right of
private defence does not extend to causing death. However, it does extend, subject to the
restrictions specified in Section 99, to causing harm other than death to the wrongdoer.
This section should not be interpreted as granting permission to the accused to exceed their
right of private defence in any manner. If someone exceeds the right of private defence and
causes the death of the trespasser, they would be guilty under Section 304, Part II of the IPC.
Section 104 is a complementary provision to Section 103, just as Section 101 is
complementary to Section 100.
In the case of V.C. Cheriyan v. State, three deceased individuals and others had illegally
constructed a road through a private property belonging to a church. A criminal case was
pending against them. The accused, associated with the church, erected barricades to block
the road.

SECTION 105: COMMENCEMENT AND CONTINUANCE OF THE RIGHT OF

PRIVATE DEFENCE OF PROPERTY
The provisions regarding the right of private defence of property as stated in the Indian Penal
Code. The right of private defence of property is triggered when there is a reasonable
apprehension of danger to the property. The duration of this right varies depending on the
nature of the offence being committed.
In the case of theft, the right of private defence continues until the offender has retreated with
the property, until assistance from public authorities is obtained, or until the property has
been recovered.
In the case of robbery, the right of private defence continues as long as the offender is causing
or attempting to cause death, hurt, or wrongful restraint to any person or as long as there is a
fear of immediate death, hurt, or personal restraint.
In the case of criminal trespass or mischief, the right of private defence continues as long as
the offender is engaged in the commission of the trespass or mischief.
In the case of house-breaking by night, the right of private defence continues as long as the
house trespass, which began with the act of house-breaking, continues.
It is important to note that the right of private defence of property can only be exercised when
there is no time to seek assistance from public authorities. Additionally, once a trespasser has
successfully taken possession of the disputed land, the true owner loses the right of private
defence to protect the property. A trespasser has no right of private defence to protect
property that is not in their lawful possession.
SECTION 106: RIGHT OF PRIVATE DEFENCE AGAINST DEADLY ASSAULT
WHEN THERE IS RISK OF HARM TO AN INNOCENT PERSON
The provision stated in the illustration you mentioned clarifies that in a situation where a mob
is attacking a person and faces a reasonable apprehension of death, they have the right of
private defence, even if exercising that right may pose a risk of harm to innocent persons. In
such a case, the defender is allowed to risk causing harm to those innocent persons to protect
themselves.
This provision removes any doubt or hesitation that the defender may have regarding
exercising their right of private defence when there is a possibility of harming innocent
individuals. It ensures that the defender can take necessary actions to protect themselves even
if there is a potential risk to others not involved in the attack.