THE DEFENCE OF NECESSITY: THE RIGHT

TO CHOOSE THE LESSER EVIL

Submitted to – prof. Ivneet Walia Submitted

by - Shubham Pandey
Roll number - 19003
 Introduction
• As a matter of theory, the distinction which can be made between self-defense,
need and duress are fascinating but may also be relevant in practice. The need
for protection has long been concern of to commentators in some jurisdictions,
as it posed a problem about reason versus excuse. But with the imperative of
defense arises another interesting philosophical question, which is “whether it
can be morally differentiated from self defense to which it as at least
conceptually similar.” Khalid Ghanayim, Excused Necessity in Western Legal
Philosophy, 19 CAN. J. L. & JURISPRUDENCE 31 (2006).
 SELF-DEFENCE: AN INTRODUCTION

• In early days, it was assumed that one should protect oneself by fleeing to the safe
place, rather than killing or harming the attacker.

• In western countries, this remained in trend for a long period of time, representing the
fundamental justice in the realm of self-defense.

• But since then, the time has changed a lot, such a pattern has been discarded from the
society and the victim is no longer obligated to run away for its life, and he is entitled
to stand there and repel the attack and exercise his right of private protection.

•The rules relating to a person’s right to private defence were made pursuant to section
96 to 106 under the Indian Penal Code, 1860. Section 96 states that: “Nothing is an
offence which is done in the exercise of the right of Private defence.”
 THE DEFENCE OF NECESSITY

• Necessity as a defense is stated u/s 81 in Indian Penal Code as:

“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.”

Whenever necessity forces a man to do an illegal act, forces him to do it, it explains
him, because no man can be declared guilty of a crime whenever the mens rea is
missing. The act committed by him must be voluntary.
 THE RELATIONSHIP: THE MORAL COMPASS

The denial of the application of protection of the doctrine of necessity by the

statute may be based on some moral grounds. However, the fact that self-defense
raises many of the same ethical problems as the defence without and during a
comparable faith in the legal system it undercuts such a possibility. When seen
from the viewpoint of such diverse moral philosophies as natural or social
contract and utilitarianism, it is difficult to separate ethically the protection under
self-defense to the doctrine of necessity
 CRITICISM

• In the criminal law jurisprudence, the doctrine of necessity and the self-defense are
morally on the equal ground. The interpretation of Cotton, revolves around this
theory only. He suggests that there is not logically sound argument that can
demarcate both the defenses in the nuances of criminal law. Michele Cotton, The
Necessity Defense and the Moral Limits of Law, 18 New Crim. L. Rev. 35, 37
(2015).
 CONCLUSION
 
• As seen in this article, the necessity argument has been consistently and we
sounding leave rejected by the American jurisprudence. And, as has been seen here
the exclusion occurred despite the fact that the requirement of defence is morally
and theoretically quite close to the self defence which the law embraced in full.
• Apparently this contradictory treatment of the two differences images because
necessity, unlike Self defence contradicts the free will presumption in the criminal
law. In the difference of necessity means that the conduct of the defendant was
necessary rather than involuntarily one.
THANK YOU