HUMANISTIC CONSIDERATION IN THE DOCTRINE OF SELF – PRESERVATION
Author: Shivangi Mishra,
IV Year,
Faculty of Law, Jamia Millia Islamia
ABSTRACT
Man, by his very intrinsic nature is fiercely loyal. He expends his unequivocally superior physical energies and intellectual endowments in fortifying his conquests, realising his dreams, and protecting and defending his loved ones. The corpus of Law is not merely governed by the hostility infused in the sword of sanction, it rather also brings within its folds, the subtle nuances of emotional vagrancies. Striking a chord with the sentimental dynamics influencing the legal order, the surmise evolution of the Common Law doctrine rests on the platform composed of human realities. As a consequence, the Indian Penal Code was drafted without struggles that come handy with inexperience and novelty. The Indian Penal Code, under the tutelage of various British pronouncements, has accommodated the doctrine of Self-Preservation within its capacious frontiers to attend to the impulsive human exigencies. Henceforth, it can be safely inferred that the right to private defence is neither punitive nor vindictive but preventive. The inalienable concept of Human Worth lies at the heart of the discourse on Self- Preservation as the principle supports the victory of rational human behaviour over grim and stolid legal sanctions. The legal quandary experienced by the State in mitigating the unrestrained expansion of the rights of Self-Preservation, and at the very same time, providing a license of retaliation in order to ward off an injury has been highlighted in a resounding fashion.
THE DOCTRINE OF SELF-PRESERVATION: AN INBORN HUMAN TENDENCY?
The doctrine of self-preservation echoes the basic human tendency to defend oneself. This concept is designedly inherent in the basic attributes and nuances of the natural world. Every organism is bestowed with the requisite skills to defend itself in times of adversities. The Almighty has conferred upon every living organism certain basic innate tendencies and endowments to protect its natural and acquired endowments from external influences. Bowett draws up a multidimensional trajectory of the concept of self-preservation and outlines its relations with the state. As a legal concept, the function and scope of the doctrine of Self- preservation may vary with the degree of maturity attained by the structure of law in which it finds a place. In any primitive system of law, where there is the absence of any centralised machinery for the enforcement of law and the protection of the rights of individual, or where such machinery is inefficacious or dilatory in securing those ends, the need to allow to the individuals whose rights are endangered by a breach of the law the right to protect their rights by their own action is obvious. Yet, as the legal system gains in maturity, as its processes of enforcement and protection become more effective, the tendency is to allocate the duty of protection to a centralised authority and to restrict the right of unilateral action by individuals. For, if, in the interest of general peace and good order, society takes to itself the task of protecting the rights of individuals within society and prohibits the exercise of force by individuals, the right of self-defence assumes the character of an exceptional right, an exception to the general prohibition which must be carefully circumscribed. In some measure, however, the right must remain; for no matter how effective the means of protection afforded by the centralised machinery of society are, there will inevitably exist circumstances in which certain essential rights or interests of the individual can only be protected by conceding to the individual the right to take initial measures of protection until the centralised machinery comes into operation”[1]
This passage points to the fact that the validity of the theory of self- preservation is inversely proportional to the level of the socio-cultural advancement of a state. The more developed and cultured the State, the greater restrictions be imposed on the right of self-preservation. Bowett’s views find resonance primarily in the international spectrum where ‘States’ acquire the status of entities and occupy centre stage. An endeavour to apply the doctrine of self- preservation in the international sphere would be to dwell in absurdities as it is solely an ‘individual’ that lies at the heart of the concept of self-preservation.
A careful scrutiny takes us to the deduction that the doctrine of self-preservation is deeply rooted in the Darwinian theory of natural selection.
“By the early 1800s, evolutionism, though it contradicted the biblical account of man’s creation, had attained some respectability as a corollary of the historical thinking. Nevertheless, by the 1830s, some serious scientists rejected evolution and made the origin of species a focus of biological controversy. Because evolutionists could not point to a believable naturalistic mechanism that supported their ideas, evolutionary speculations remained outside the realm of natural knowledge. That state of affairs was changed by Charles Robert Darwin, whose theory of natural selection provided a naturalistic mechanism for species change that reorganised all of natural history around the concept of evolutionary descent. Natural selection, the notion that competition for survival ultimately favours the “selection”, through differential reproduction, of favourable variations, provided an answer for those naturalists who were looking for a reasonable explanation for the origin of adaptations.”[2]
A NEXUS BETWEEN NATURAL SELECTION AND SELF PRESERVATION
Even though, the theory of natural selection failed to garner instant fame, when it gained recognition, it indicated the plausibility encircling the concept of the ‘survival of the fittest’. To state that the theory of natural selection and the concept of self-preservation are congruous and coincident would be to embark on an exceedingly ambitious expedition. These two theories do not coexist in space and time. Natural Selection is a phenomenon that overrides the primitivism inherent in Self-Preservation and moulds the latter to give it a ruthless and individualistic shape that weighs on the principle of self-interest.
Self- Preservation, in relation to the theory of Natural Selection, can be explained as natural selection in its incipient stages. The basic difference between the two principles lies in the fact that while natural selection follows an offensive approach that aims at overpowering the contemporaries or if circumstances so desire even exterminating them in order to secure their abilities and ensure their clout in dealings with the nature and other beings, the theory of self-preservation builds on a milder monochromatic approach that rests on the belief that an organism has to expend all its energies and capabilities so as to survive against all odds. It is true that living organisms governed by the theory of natural selection are driven largely by the ambition to preserve themselves albeit preservation might not be the sole driving force and a certain degree of self-interest is highlighted.
Nevertheless, the fact that the two theories have a close nexus cannot be singularly denied. Kenneth Allan revalidates the aforesaid point,
“Creative production is the way that we as a species survive. In all species, economic needs push the natural laws of selection that result in a functional balance between self-preservation and race-preservation. Natural selection in self-preservation develops those characteristics in the individual that are needed to succeed in the struggle for self-survival. In the evolutionary model, individuals within a species fight for food among other things. Natural selection equips the individual for that fight. Race preservation, on the other hand, develops those characteristics that enable the species as a whole to succeed in the struggle for existence. The most important point here is that the relationship between self and race preservation is balanced: Individuals are selfish enough to fight for their own survival and selfless enough to fight for the good of the whole species.”[3]
In a resounding fashion, these views reflect the opinion that the theory of natural selection works as a catalyst for the theory of self-preservation. The principle of self- preservation is coterminous to the concept of race- preservation while the former stems up from the innate tendency to fortify one’s natural resources, the latter springs up from a feeling of affinity with a select group.
The doctrine of self- preservation, which implicitly encompasses the theory of race-preservation, is incorporated in the Indian Penal Code in the form of two cardinal principles, viz., ‘Necessity’ and the ‘Right of Private Defence’. Necessity falls within the purview of ‘excusable defences’ that involves the conception that law is deemed to excuse certain class of persons who qualify the requisites entailing the principles of General Exceptions enshrined in Chapter Four, on the other hand, the ‘Right of Private Defence’ is a justifiable defence premised on the belief that even though the act is prima facie an offence, the doer is exonerated of all liabilities by virtue of the circumstances that propelled the act.
We shall delve deeper in the analysis of the concept of ‘Necessity’.
FORGING A RELATIONSHIP WITH ‘NECESSITY’
The doctrine of necessity which is enshrined in Section 81 of the Penal Code states that when a person in order to avoid other harm to any person or property, undertakes to perform an act which imperils the life or property of another person, he shall come within the protective sphere of Article 81, I.P.C. In such cases, the knowledge that the harm will occur exists but the element of mens rea is absent and hence the doer of the concerned act is exonerated[4].
It is a herculean task to construct a precise definition of the concept of necessity and the entailing circumstances essential for the defence. Stephen propounds that there is no singular formula by which necessity can be delineated,
“Compulsion by necessity is one of the curiosities of law and so far as I am aware is a subject on which the law of England is so vague that, if cases raising the question should ever occur, the judges would practically be able to lay down any rule which they considered expedient.”[5]
Lord Mansfield attempt to explain necessity in the case, R. v. Stratton[6] has been well received in the legal circles, “Wherever necessity forces a man to do an illegal act, forces him to do it, justifies him, because no man can be guilty of a crime without the will and intention of the mind.”
Hence, necessity can be understood as a defence to a wrongful act which has as its underlying principles, unavoidable circumstances and the absence of choice of action. Mayne explains the concept of Necessity as a defence with respect to the Indian law, “Section 81 is intended to give legislative sanction to the principle that where, on a sudden and extreme emergency, one or other of the two evils is inevitable, it is lawful so to direct events that the smaller only shall occur.”[7]
However, it has to be borne in mind that the commission of an unlawful act for gaining personal benefits would not come under the ambit of Section 81. The provisions of Section 81 come into operation only for achieving the ends envisaged in the theory of self-preservation.
According to the legal principles, following are instances where necessity may be pleaded,
- Self-defence and prevention of violence – When the doer does a criminal act to protect himself or his property or somebody else’s property or to prevent the commission of a crime of violence against someone else, the wrongdoer’s act would be justified under Sections 96-106 of the Indian Penal Code. Hence, we may deduce that the concept of the right of private defence crops up from the doctrine of necessity.
- Prevention of Harm to the Accused at the Expense of an Innocent Party – This aspect of the doctrine of necessity can be explained by referring to the landmark case, R. v. Dudley and Stephen[8], the facts of the instant case are as follows,
Dudley, Stephen and Brooks, all able-bodied seamen, and a boy Parker were in an open boat after the shipwreck of the yacht Mignonette. They had no food or water in the boat. After eighteen days during which the only food they had was one small turtle and the water they caught in their oil-skin capes, the accused suggested to Brooks that someone should be sacrificed to save the rest. Brooks refused to agree and the boy, to whom they were understood to refer, was not consulted. On the twentieth day, Dudley, with the consent of Stephen but not of Brooks, killed the boy. The three fed upon the boy for four days when they were picked up. It was found that if the men had not fed upon the body of the boy, they would probably not have survived to be so picked up, but would within the four days have died of starvation; that the boy, being in a much weaker condition, was likely to have died before them; that there appeared to the accused every probability that unless they had fed upon the boy, one of themselves, they would die of starvation and that there was no appreciable chance of saving life except by killing some one for the others to eat; and that assuming any necessity to kill any one, there was no greater necessity for killing the boy than any of the other three men.
It was held by Lord Coleridge C.J., with the concurrence of the four other judges that Dudley and Stephens were guilty to murder.
Grove J. fully concurred with the judgement of Lord Coleridge and added a pertinent illustration thus:
“ If two accused men were justified in killing Parker then if not rescued in time, two of the three survivors would be justified in killing the third, and, of the two who remained, the stronger would be justified in killing the weaker, so that three men might be justifiably killed to give the fourth a chance of surviving.
Dr. Gour describes three principles deducible from R. v. Dudley and Stephen, namely,
- “Self- preservation is not an absolute necessity;
- no man has a right to take another’s life to preserve his own;
- there is no necessity that justifies homicide.”[9]
Hence while dealing with the concept of Self Preservation,
it has to borne in mind that it does not support a cold blooded approach that validates unjust and immoral practices just for the sake of protecting oneself and the underlying claims. The third principle, ‘there is no necessity that justifies homicide’, implies that no private necessity justifies homicide or killing of a human being except when homicide is committed in self-defence[10].
it has to borne in mind that it does not support a cold blooded approach that validates unjust and immoral practices just for the sake of protecting oneself and the underlying claims. The third principle, ‘there is no necessity that justifies homicide’, implies that no private necessity justifies homicide or killing of a human being except when homicide is committed in self-defence[10].
Furthermore, in Commonwealth v. Holmes[11], an American ship, William Brown, sailed from Liverpool carrying a crew of seventeen and sixty-five emigrants bound for United Sates. It struck an ice-berg and after the shipwreck, thirty two passengers, the first mate and eight seamen got into a long boat. The captain, eight seamen and one passenger took to one jolly boat. After some time it became apparent that the long boat would be unmanageable and it became necessary to cast lots and throw some overboard and all male persons were ordered to be thrown overboard and most of them were thrown overboard. After the men had been thrown overboard, the long boat was sighted by the Crescent and all survivors were transferred to it. Holmes, a member of the crew of the ill-fated William Brown, was tried for manslaughter. Three main arguments were advanced on his behalf, namely, necessity, self-defence, and the futility of punishment in such a case. Baldwin J. who tried this case, observed that passengers must be favoured over seamen. The sailor is bound as before to undergo whatever hazard is necessary to preserve the passengers. The captain and eight seamen to navigate the boat must be saved. Then those passengers whom necessity requires to be cast over must be chosen by lot. Justice Baldwin further opined that “It is not prescribed by law, but it is the fairest method and it is in some sort an appeal to God. For ourselves, we conceive of no mode so consonant both to humanity and to justice.” The Court of Law sentenced Holmes to imprisonment for six months.
Under English Laws, the typical case of necessity arises when a doctor has to choose between the killing of the child and the killing of the mother who is delivering the child[12]. Under English Law, it is distinctly provided that where the doctor was acting in good faith, he will be exempted from punishment[13]. Under Indian Law, Section 81[14] provides for such a defence of necessity, as is well reflected in the two illustrations appended to it. This principle of defence thrives on the framework of the maxim, Necessitas vincit legem, which means, “Necessity overcomes the law”.
Arriving at a deduction, we may remark that ‘Necessity’ is a term possessing fluid contours. These pseudopodia rely heavily on the differing circumstances of each case.
RIGHT TO PRIVATE DEFENCE: THE WAND THAT REPELS DANGER
The Right to Private Defence is a justiciable defence. In such a defences, the act committed by a person is prima facie an offence but by virtue of the special circumstances that rest on ethical and bonafide beliefs, the accused is granted absolute immunity. Such acts are justified as the law contemplates that it was essential for repelling unlawful aggression or other unwelcome circumstances and hence the doer is exonerated of all blemishes.
It is believed that the instinct to defend oneself is the intrinsic belonging of every creature. To negate the right of private defence would be to negate the basic ideals of survival.
The aforesaid view is reiterated by the words of Donovan J.,
“The law of self-defence is
not written but born with us, which we have not learnt, or received by tradition, or read, but which we have sucked in and imbibed from Nature itself; a law which we were not trained in, but which is ingrained in us, namely, that if our life is in danger by robbers or enemies from violence, every means of securing safety is honourable. For laws are silent when arms are raised and do not expect to be waited, for when he who waits will suffer an undeserved penalty. Reason has taught this law to learned men, and necessity to barbarians, and custom to all nations, and Nature to wild beasts, that they are at all times to repel violence by whatever means they can without deciding that all men may fall by the weapons of their enemies.”[15]
not written but born with us, which we have not learnt, or received by tradition, or read, but which we have sucked in and imbibed from Nature itself; a law which we were not trained in, but which is ingrained in us, namely, that if our life is in danger by robbers or enemies from violence, every means of securing safety is honourable. For laws are silent when arms are raised and do not expect to be waited, for when he who waits will suffer an undeserved penalty. Reason has taught this law to learned men, and necessity to barbarians, and custom to all nations, and Nature to wild beasts, that they are at all times to repel violence by whatever means they can without deciding that all men may fall by the weapons of their enemies.”[15]
PRIVATE DEFENCE IN THE INDIAN PENAL CODE
In India, the concept of ‘retreat’ has not gained currency. In Indian jurisprudence, retreating from danger is touted as a brazen act of cowardice. Running in symphony with the letter and spirit of Indian legal literature, a person is expected to display the attributes of tenacity while being subjected to external aggression. Though, this principle is not mirrored explicitly in Section 96 of the Penal Code, it finds tacit approval.
In Alingal v. R.[16], rejecting the rule of ‘retreat’ as accepted in England, the Court laid down that assaulted need not modulate his defence step by step according to the attack unless the attack is over. He is entitled to secure his victory as long as the assault continues, He need not run away.
In Munney Khan v. State of M.P[17],the Supreme Court said,
“The right of private defence is codified in Sections 96 to 106, IPC, which have all to be read together in order to have a proper grasp of the scope and the limitations of this right. By enacting these sections in the Code the authors wanted to except from the operation of its penal clauses, classes of acts done in good faith for the purpose of repelling unlawful aggression. This right is available against an offence and, therefore, where an act is done to exercise of the right of private defence such act cannot give rise to any right of private defence in favour of the aggressor in return. An aggressor, therefore, cannot claim the right of self-defence. However, no right of self- defence can exist against an unarmed and unoffensive individual.[18]
Section 99[19] of IPC lays down the limitations on the right of private defence, it chiefly enumerates that the right extends only to those cases where there is reasonable apprehension of harm.
Section 106[20] of the Penal Code provides that if there is reasonable apprehension of death, the defender, while exercising his right of private defence, can take the risk of harm to an innocent person if the right cannot be effectually exercised without taking such a risk.
In Kala Singh v. Emperor[21], the deceased was a dangerous person with a robust constitution while the accused was of weak body. They had a quarrel and the deceased armed with a stick entered the shop of the accused, threw him on the ground, pressed his neck and hit on his head and chest. The accused somehow extricating himself from his grip gave three fatal blows on the head of the deceased as a result of which he died after three days. It was held that the right of private defence was not exceeded. .
From the legal expedition, we may conclude that the right to private defence is neither punitive nor vindictive but preventive and therefore it should not be used maliciously[22].
CONCLUSION
To sum up, we may state that the doctrine of self-preservation is premised on the theory of reciprocity. But a closer analysis discloses the fact, that apart from being retributive or reciprocal in spirit, the theory of self-preservation gains currency, to a humungous extent from man and his peculiar traits. The theory of self-preservation and its recognition in the Indian Penal Code allude the faith reposed by law in the practical realities of life and living. The theory surmises that the prime objective of sanctioning powers of law is to repel danger and avert danger to the person and property of man. It has been further ascertained that the concepts of necessity and private defence, though running in divergence, germinate from the common route, that is, the unwelcome circumstances and the unpropitious situation the accused finds himself entrapped in. It is incumbent upon the judiciary to dispel falsehoods by fastidiously segregating claims that are blown out of proportion from bonafide averments that eliminate extenuating alternatives and position the accused on the scales of moral dilemma.
[1] D.W. Bowett, Self- Defence in International Law, 3, The Law Exchange, Ltd, 2009.
[2] Charles Darwin, On Evolution: The Development of the Theory of Natural Selection, 11, Hackett Publishing, 1996.
[3] Kenneth Allan, Explorations in Classical Sociological Theory: Seeing the Social World, 287, SAGE Publications, 2012.
[4] Section 81, Indian Penal Code defines Necessity, “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.
[5] Stephen, History of Criminal Law, Vol. II.
[6] 21 How St. Tr. C. 1223 (1779).
[7] Mayne, Criminal Law of India, 157, (4th Ed.), Part I.
[8] 14 Q.B.D. 273 (1884).
[9] Gour, Penal Law of India, 335, Vol.I (7TH Ed.), 1961.
[10] I.P.C, Sec 100 (1860).
[11] 1, Wall Jr. I; 26 Fed. Cas. 360, quoted at length in Wharton, On Criminal Law, Section 511(n).
[12]R.C. Nigam, Law of Crimes in India, 337, I, Asia Publishing House.
[13] Infant Life (Preservation) Act, Sec.1 (1929).
[14] I.P.C. , Sec. 81 (1860).
[15] Tact in Court, 159.
[16] ILR 28 Mad 454.
[17] AIR 1971 SC 1491.
[18] Gurbachan Singh v. State of Haryana, 3 SCC 667 (1974).
[19] IPC, Sec 99 (1860).
[20] IPC, Sec. 106 (1860).
[21] AIR 1939 Rang 225.
[22] O.P Srivastava, Principles of Criminal Law, 174 IV Ed., 2005.
