RAJIV GANDHI NATIONAL UNIVERSITY OF LAW
CRIMINAL LAW-I ASSIGNMENT
Analyzing The Defense Of Necessity: The Right To Choose
The Lesser Evil
The Defense of necessity from Legal & Moral point
SUBMITTED TO SUBMITTED BY
Prof IVNEET WALIA CHAITANYA TRIVEDI
ASST. PROFESSOR OF LAW ROLL NO.: 18012
RGNUL, PATIALA SECTION: A
DATE OF SUBMISSION: 12th SEPTEMBER, 2020
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Table of Contents
INTRODUCTION.....................................................................................................3
THE DEFENSE OF NECESSITY IN INDIA.......................................................4
ANALYSIS OF TWO PARADIGMS.......................................................................5
I. THE DESTRUCTION OF PROPERTY..........................................................5
The Moral Obligations That Arise from the Destruction of Property:................6
The Destruction of Others' Property to Safe One’s Own Property:....................6
Entry by Force into the Dwellings of Others and the Taking and Use of the
Property of Others in Emergency:.......................................................................7
II. THE TROLLEY PROBLEM: THE INTENTIONAL TAKING OF
INNOCENT HUMAN LIFE IN ORDER TO SAVE A LARGER NUMBER OF
INNOCENT HUMAN LIVES...............................................................................8
IN ENGLISH-AMERICAN LAW:.....................................................................9
The Modern Law And Penal Code:..................................................................11
CONCLUSION.......................................................................................................12
BIBLIOGRAPHY...................................................................................................13
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INTRODUCTION
Criminal law is said to be formed on the idea that person can be held
responsible for their actions because they freely choose them rather than had
them determined by sports beyond their control.
Since the Inception of the penal laws, there is always a debate between the
defence of necessity and self defence. The necessity of Defence is interesting
matter for the lawmakers and judicial scholars and faces the problem about the
justification of the defence of necessity. And an interesting question arises
from the philosophical point of view that defence of necessity whether it can be
morally distinguished from Self defence, to which it is similar in the significant
manner. This question arises because put has repeatedly decline to recognize
necessity is a valid defence while they fully accepted the excuse of self
defence.
The main question arises on the defence of necessity is that when a person
destroys the property of another person and gives the reason of Defence of
necessity then to what extent we can allow this defense? We can see two
paradigms where in one scenario there are some curious expels like in one
situation a backpacker who was stranded in a blizzard breaks into a cabin and
consumes the food of the owner and in other example a person named Hal who
is diabetic trespass in a house a take the insulin from the owners insulin
package. In these both examples scholars admitted the defense of necessity and
if in thses caes intruder pay the compensation to the grieved party then there is
no injustice to anyone.
But in the second paradigm there is case which not involved the destruction of
property to save life but the Killing of one innocent person to save tail lights of
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a greater number of innocent persons. This is this situation developed by
Thompson in which ahead of the trolley of 5 men who will certainly be killed
if the trolley continues on its course but driver applies the sudden break and
save the five lives but kill the other man. In this case Thompson said that the
driver should kill the sixth person to save the life of other five persons.
But in these both paradigms obtained from the morality of the society but we
overlooked, it has been well documented that not only is a society's law
influenced by its morality, but its morality is also very much influenced by its
law.1 The legal analysis is too superficial and that erroneous legal conclusions
are used to justify unsound moral conclusions. These two paradigms are
sequentially because they each involve complex questions that can only be
resolved by a close analysis of the relevant cases and other legal and
philosophical authorities. However, the two paradigms are interrelated because
they involve many common issues and the conclusions reached with regard to
one paradigm -particularly the first-are sometimes used in discussions of the
other.
THE DEFENSE OF NECESSITY IN INDIA
The defense of necessity is mentioned in the chapter 4 if Indian Penal Code in
section 81 with some exceptions like act done without criminal intention to
prevent the greater harm. Like a person accused of committing a criminal act
should have done that in in order to prevent a greater harm without having the
intention of causing harm and merely with the knowledge of that act is likely to
ensure and he will not be held responsible for the result of this act. But where
the positive evidence against the accused is clear and reliable question of
1
Fuller. See LON FULLER, A Reply to Critics, in THE MORALITY OF LAW 204-07 (rev. ed. 1969).
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motive is of no importance.2 In the prevention of harm state with two choices
both resulting in same harm and of sheer necessity to avoid a greater harm, he
has to commit an act which would otherwise be offence. The test really is like
this there must be a situation in which the accused is confronted with a Grave
danger and he has no choice but to commit the lesser maybe even to an
innocent person in order to avoid the crater hard. Here the choice between two
evils and the accused brightly to get the lesser Evil.3
ANALYSIS OF TWO PARADIGMS
I. THE DESTRUCTION OF PROPERTY
Few cases have captured the attention of scholars like Vincent v. Lake
Erie Transportation Co.4 was not a case in which property was destroyed
to save life, it has nevertheless become the starting point for practically
every discussion. In his fairly extensive discussion of the case and its
support for his legal and moral conclusions about the circumstances
under which one may justifiably take or destroy the property of other.
And in conclusion, the very few cases addressing the issue have all held
that property may be destroyed when necessary to save human life.
These cases have also held that no compensation is payable for having
done so.
The Restatement Provisions: There are provisions like section 197 of
both the original Restatement and the Re- statement (Second) take the
position that one is privileged to enter the land of another in order to
prevent serious harm to oneself, to one's land, to one's chattels, or to the
2
Gurucharan Singh V. State of Punjab, AIR 1956 SC 460.
3
Gopal Naidu, 1922 46Mad605.
4
4. 124 N.W. 221 (M1910).
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person, land, or chattels of another . Thses provision are for the
compensation in case of destruction of property and varies in cases.
The difficult legal problems raised when property is destroyed to save
lives concern not the question of compensation, but rather the question
of whether force may be used against of the property that needs to be
destroyed.
The Moral Obligations That Arise from the Destruction of Property:
Assuming that the destruction of property is morally as well as legally
permissible when necessary in order to save human lives, is there
nevertheless a moral obligation to pay for the harm done? This is the
essential question asked by all scholars but these obligations are will
vary with the culture and the particular circumstances. They may be as
great as payment of even more than full replacement value, or as little as
just an expression of gratitude.
The Destruction of Others' Property to Safe One’s Own Property:
In the case when one destroyed the other’s property to safe his own
property if we relies on Resentment( second) and Vincent case this
support for its view of the privilege to destroy property.
kless behavior. That compensation should be paid in such circumstances
is not at all surprising or controversial. It is the attempt to read more into
the Vincent case than the actual facts of the case would uncontroversial
permit that has encouraged some to conclude that, if one must pay
compensation for property destroyed in order to save other property,
then one must also pay compensation whenever property is destroyed.
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Entry by Force into the Dwellings of Others and the Taking and Use of
the Property of Others in Emergency:
1. Entry into Dwellings. Although it is often difficult, if not im- possible,
to separate the two situations, the main thrust of the first paradigm is not
the simple destruction of property but the taking and consumption of
property. Feinberg's backpacker, for example, enters an unoccupied
vacation cabin.
Recognize that Ploof v. Putnam'5 only held that the possessor could not
use force to prevent the plaintiff and his wife and children from entering
on his land." The only case remotely involving a breaking and entry
cited by the Restatement (Second) is People v. Roberts,' 6 in which a
conviction was upheld when critical evidence was obtained as a result of
the police getting the manager to let them into an apartment when no one
answered their knock and after the police heard "several moans or groans
that sounded as if a person in the apartment were in distress.
2. The Taking and Consumption of Others Property:
The more important aspects of the paradigm we have been discussing
involve not just unauthorized entry and the simple destruction of
property but also, and more importantly, the taking and consumption of
someone else's property.
3. The Right to Resist a Taking:
In his attempt to describe the appropriate legal regime to govern this
subject, Coleman, like the drafters of the Restatement, does not consider
what would happen if Carla were to suddenly appear and refuse to allow
Hal to use any of her insulin. She may not believe that Hal has
5
71 A. 188 (Vt.1908).
6
. 303 P.2d 721 (Cal.1956).
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accurately assessed how much insulin to leave her, or she may be
apprehensive about her ability to replace the insulin taken, or doubtful
about how soon Hal will be able to pay her, or perhaps just outraged that
Hal wants to take her insulin.
II. THE TROLLEY PROBLEM: THE INTENTIONAL TAKING OF
INNOCENT HUMAN LIFE IN ORDER TO SAVE A LARGER
NUMBER OF INNOCENT HUMAN LIVES
Thomson's trolley hypotheticals, it will be recalled, concern one Bloggs, a
bystander who witnesses a trolley bearing down upon five helpless men
who will certainly be killed if the trolley continues on its course. Bloggs can
avert the catastrophe only by throwing a switch that will shunt the trolley
off to a spur where it will certainly kill a different helpless man. Thomson
draws on a hypothetical posed by Philippa Foot in which the "driver of a
runaway tram, which is bearing down upon five helpless workmen, realizes
that he can only avoid running into them by steering the tram he is driving
down a different track and killing the single workman who is on this other
track.
Having concluded that we would agree that the driver is justified in
endangering the life of the single workman, Foot explores why we would
nevertheless be horrified if it were suggested that we should comply with
the demand of "some tyrant who should threaten to torture five men if we
ourselves would not torture one. Foot justifies our different reactions to her
tram situation and the tyrant situation by resorting to the distinction between
what we do and what we allow to happen, which, at a more abstract level,
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corresponds to the difference between our negative duty not to harm
someone and our positive duty to aid others.
In accepting the distinction between acting to bring about a result and
allowing something to happen, both Foot and Thomson are relying on, and
trying to capture, the essence of the intuition that is behind the common
law's distinction between misfeasance and nonfeasance. Thomson is
prepared to recognize a moral duty only in those situations in which one is
under a preexisting duty to act for the benefit of others. At the time that the
driver is faced with his difficult choice, the tram is out of control. If the
tram driver does not steer the tram to the other track because he does not
want to kill the single workman on the other track, it would not, from the
legal point of view, be correct to say that he has killed the five workers.
The trolley problem has given rise to an extensive literature on the
permissibility of killing one person in order to save one or more persons. As
far as we can tell, there seems to be general agreement that, in the basic
situation presented by Foot and Thomson, it is permissible to turn the
trolley away from the five workmen even if that means the single workman
will be killed. It fulfills the purpose of saving the less evil over greater evil.
IN ENGLISH-AMERICAN LAW:
Any serious discussion of the legality of taking the life of an innocent
person to save the life of a greater number of other persons must begin with
a detailed description and discussion of The Queen v. Dudley and
Stephens,7 decided in 1884 by a panel of five judges in the Queen’s Bench.
7
14 Q.B.D. 273 (1884).
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In this case after sinking of a ship, 3 adults and a boy survived and after
they consumed their left food they murdered the boy for their food.
Mentioned above, the jury specifically found that, if the men had not fed
upon the body of the boy, they would probably not have survived to be
rescued and that the boy, "being in a much weaker condition, was likely to
have died before them." The jury also found that "there was no appreciable
chance of saving life except by killing someone for the others to eat. The
jurors professed ignorance as to whether the killing of the boy was "felony
and murder" and requested the opinion of the court, but concluded that, if in
the opinion of the court the killing of the boy was "felony and murder," then
"the jurors say that Dudley and Stephens were each guilty of felony and
murder. The court concluded that the "conviction must be affirmed," and
Dudley and Stephens were sentenced to death, a sentence that was
afterwards commuted by the Crown to six months' imprisonment.
And in another case American case, United States v. Holmes, 8 in which the
defendant, a seaman and a member of the ship's company, was convicted of
manslaughter for throwing passengers out of an overcrowded lifeboat. by
the passing ship. It was perhaps for this reason, as well as the fact that he
had spent several months in pretrial confinement, that Holmes was
sentenced to six months imprisonment and a fine of twenty dollars when the
statute authorized a penalty of imprisonment for as much as three years and
a fine of 1000.
The Modern Law And Penal Code:
Since 1950 there is a change towards these cases where states follow the
approach of Lesser Evil. The distinction between public and private
8
26 F. Cas. 360 (E.D. Pa. 1842) (No. 15, 383)
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necessity is neither merely verbal nor historic, but rather rests upon a very
fundamental feature. Public officials are charged with promoting the
common good. They not only exercise the authority to decide that some
people should be sacrificed to save a larger number of others, but also
exercise a vastly more important authority, namely the authority to decide
that some lives are more important than others.
The Moral Implications of the Supposed Privilege:
The Model Penal Code is categorical in declaring that all lives are equal,
and of course one of the reasons that we cannot kill a derelict in order to
provide organ transplantation into a gaggle of Nobel Prize winners is that all
lives are equal from a moral point of view as well. Yet, in all the illustrative
examples given by Thomson, who thinks that it may sometimes be morally
permissible to take the life of an innocent person to save the lives of a
greater number of other persons, it is assumed that the people whose lives
are to be saved are themselves in no way responsible for their predicament.
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CONCLUSION
As Churchill said in his famous parliamentary speech during world war that
we choose the lesser evil between the two evils when Britain asked help
from the Russia. This is the same case in the defense of necessity; in this
defense accused choose the lesser evil to protect his property, other person
or one’s own life. When we read the Thomson’s hypothesis, he suggested
killing one innocent to safe the other five. But the action of the person
should be unintentional. But the killing of a one innocent person is morally
right or wrong; this is the main point of whole discussion.
When we see the case where three persons killed an innocent boy to
survive in the sea this is right from the perception of those three people but
this is a crime committed against the boy. In these scenarios we have to
consider the lesser evil and if we choose to go with the evil like killing 5
people instead of one then this will inflict greater harm to the society.
Like in the situation of World War II Allies joined hands with dictatorial
regime of Stalin against the Nazi regime of Hitler, led our world to present
era where we can live freely but at that time they wouldn’t take the help of
Stalin then we would now live in a very different world where Evil would
dominate the whole world. And we can later ameliorate the situation like we
came out of the phase of Cold War and live in a free world.
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BIBLIOGRAPHY
1. Cotton, Michele. “The Necessity Defense and the Moral Limits of Law.” New
Criminal Law Review: An International and Interdisciplinary Journal, vol. 18, no. 1,
2015, pp. 35–70. JSTOR, www.jstor.org/stable/10.1525/nclr.2015.18.1.35. Accessed
12 Sept. 2020.
2. FIRTH, JOANNA MARY, and JONATHAN QUONG. “NECESSITY, MORAL
LIABILITY, AND DEFENSIVE HARM.” Law and Philosophy, vol. 31, no. 6, 2012,
pp. 673–701. JSTOR, www.jstor.org/stable/23321440. Accessed 12 Sept. 2020.
3. The Defense of Necessity considered from the Legal and Moral Points of view by
George C. Christie, Duke Law Journal, http://www.jstor.com/stable/1373089
4. John L. Hill, Note, Freedom, Determinism, and the Externalization of Responsibility
in the Law: A Philosophical Analysis, 76 GEO. L.J. 2045, 2073 (1988).
5. Michael Corrado, Automatism and the Theory of Action, 39 EMORY L.J. 1191
(1990) (defense of automatism); Deborah W. Denno, Comment, Human Biology and
Criminal Responsibility: Free Will or Free Ride?, 137 U. PA. L. REV. 615, 618, 620-
22 (1988)
6. SANFORD H. KADISH, BLAME AND PUNISHMENT: ESSAYS IN THE
CRIMINAL LAW 77 (1987)
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