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This article is written by Raunak Sood, a 4th year BBA LLB (Hons.) student studying at Bennett University, Greater Noida, pursuing Diploma in Advanced Contract Drafting, Negotiation, and Dispute Resolution from LawSikho.


“Purely Legal Point of View”

In the given factual matrix if it is argued from a legal point of view then as per Section 300(4) of the Indian Penal Code, 1860 (“IPC”), “murder” is said to be committed if a human being does an action (act) which is so inevitably dangerous which might in all chances cause death without any justifiable excuse therefore as per the facts the doctor knew that A who was aged 70 years with diabetes and alcohol issues (hereinafter referred to as “Person A”) might not survive if a liver transplant is not conducted upon him (a wrongful act of the doctor) but as per the black letter of law prescribed in Section 300(4) this act of not providing medical service to Person A amounts to murder because in all probability not giving medical help to Person A will lead to his death, and hence the doctor can be said to have committed an offence punishable under Section 302 of IPC because he has notice of the fact that Person A will die if not provided with medical service of a liver transplant.

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When it comes to the defence of the doctor, the doctor in all probability will state before the judge that under Section 81 (Doctrine of Necessity) of the IPC which lays down that no offence is said to be committed if done with bonafide intentions (good faith) even though such bonafide acts might cause harm or injury to other person but since it was done with an objective to keep away another person from being harmed, it will be argued before the judge that the doctor was acting in good faith by putting Person A in harm’s way because Person A had fewer chances of survival as compared to a young a healthy woman aged 37 years with a higher survival rate (hereinafter referred to as “Person B”).  Herein the doctor chose the lesser evil which was to let Person B survive and allow Person A to die and therefore, the doctor should not be punished whereas his action of breaking the law (i.e. law which was infringed was Section 300 of IPC) prevents more evil compared to an action where had he not broken the law (death of both Person A and Person B) which is a greater evil because both Person A dying after the liver transplant had taken place and Person B who could have been happy, his happiness had been taken away from him because of a mere technicality.  

Hence, in the present facts and circumstances, both Section 300 (Murder) and Section 81 (Doctrine of Necessity) are coming into play, therefore I (the judge) must strike a balance using jural relations and jurisprudential concepts to secure justice for the accused (doctor) and the aggrieved family of Person A.  


To thoroughly examine and discuss the topic, let us presume that there is a doctor, a patient named Person A who is 70 years of age with diabetes and alcohol issues and there is a Person B who is healthy. Both Person A and Person B are suffering from cirrhosis which needs an immediate liver transplant. Person B’ name is second on the waiting list for a liver transplant and Person A’s name is first in the waiting list for a liver transplant but according to the medical knowledge and due care exercised by a doctor, since Person B has a greater survival chance compared to Person A, the doctor thereby does a liver transplant for Person B bypassing the name of Person A. Now the State authorities have arrested the doctor on charges of Murder. I (i.e. the current writer of this article) is a judge and I have to decide the guilt of the doctor keeping in mind the law and jurisprudence surrounding the murder.

Jurisprudential aspects

Sociological school 

This school of law iterates whether the law is compatible with social happenings. It is expected that judges, when deciding, should focus on the social objectives and interests served by the law rather than on individual people and their national rights. 

Leon Duguit was a French jurist who laid down the doctrine of social solidarity which states that all men in the community (society) are interdependent (interconnected) on each other since man cannot procure the daily essentials  (necessities for survival) by himself, he has to bank on others for them, the eventual end for all human activities is to secure interdependence upon each other, therefore the law is such that it has to endorse this interdependence wherein men obey the law because they want to live as members of the society. 

Theory of Justice (according to Duguit) – According to Duguit, justice is defined as the attainment of social needs and obligations that men (people in the society) owe to each other being a part of the same community and therefore, the law should protect this social solidarity to get maximum good for the community, as the role of the State is limited to securing ends of social and economic justice for common good.

As per the facts and circumstances given in this case and based on the application of the Duguit theory of justice and doctrine of social solidarity, the doctor, Person A and Person B are part of the same community and are interdependent upon each other.  Herein, Person A and Person B are dependant on the doctor for good medical service in the form of liver transplant which only the doctor can provide by taking away liver from an organ donor and transplanting it to the donee i.e. Person B in the instant case wherefore this leads to saving the life of Person B who is young, suffering from a genetic disease which can be cured of a liver transplant, and he can lead a long and healthy life. Since Person B was saved, henceforth she can contribute to the society economically and add value to the society whereas if Person A was given the liver, he could have died even after the transplant had taken place so neither Person A would have survived and led a long life and neither Person B who could have supported the other interdependent members of the society and therefore, from the community point of view, the doctor has taken the right decision to save Person B rather than saving Person A since saving Person B from the hands of death has contributed to social solidarity in a better way. 

Realist theory of law

This theory believes that law is ambiguous and focuses primarily on judge-made law. Realists have tackled law positively and portrayed the law in the form of justice and natural law. Under the realist school, the judges are not to adhere to the strict concepts of law, and they can take into consideration the social ground realities when writing down their judgements. According to Friedmann, realism is to give coherence and modernization to the administration of law by taking into account technological and social changes. It was once said by Julius Stone that realism is an amalgamation of the sociological school of law being extended further since the functioning of the law should meet the needs of society.

According to the theory put forward by Vilhelm Lundstedt, Judges should think in terms of social objectives and missions, and not in terms of rights and duties. The American Realist School under Justice Benjamin N. Cardozo thought that judicial precedents should be adhered to when deciding cases, but such judicial precedents may be ignored when they are going against the spirit of justice. Sir Oliver Windell Holmes saw law from the point of view of a bad person wherein the accused before the court only thinks either about winning the case or losing the case. The judge is sitting in the courthouse to do justice in the matter before him and hence, he may resort to creative interpretation of existing rules (law) for doing justice to the parties before him.  According to Justice Holmes, it is the duty of the judge to apply the law as he finds it and not seek to rectify inadequacies in the law by creatively interpreting the law but where there is a gap in the law, judges can read into the law and fill those gaps without shaking the fundamental foundation of the law.

In the case of United States v. Holmes,  a ship named  ‘William Brown’ sank after colliding with an iceberg. A  lifeboat was taken out with 3 passengers – 1 boy and 2 men. After days on the lifeboat, to survive starvation, the 2 men ate the little boy. Afterwards, the 2 men were charged with manslaughter and first-degree murder. They were initially sentenced to 6 months imprisonment by the trial court but the High Court reversing the verdict of the trial court held that in absence of human contact,  and while facing a life-death situation, such an act of murder can be said to be an act of necessity which is thereby excused by the federal law.

Therefore, by following the philosophy of Justice Cardozo, Justice Holmes and the precedent laid down in Holmes Case I, being the judge, have a duty to fill the gaps in the law. I can resort to creative interpretation but such interpretation should be consistent with the social goals and not disturb the fundamental base of the law.  I am, thereby, of the view that on a close perusal of the evidence before me and the facts construed from the evidence, I must adhere to the language of the Penal Statue mentioned in S. 81 and give the benefit of the said section to the accused before me because even though the there is a clear murder as mentioned in Section 300 of IPC, but still it was envisaged by the Legislature that even though the penal law which prohibits a man from acting against the doctrine of social solidarity but some acts which breach the law but can be excused when done in good faith have to be consistent with the objective of the public good. 


After going through the record and hearing out the learned counsel of the accused and the State, I have decided to acquit the accused from the charges of murder because the accused when acting to save Person B has made the correct choice in unfortunate circumstances wherein Person B who is more capable to serve the society consisting of each man dependant upon another whereas if Person A was saved then he would have been an economic burden upon the society, therefore I absolve the accused from murder charges and set him free. 

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