The Right of Private Defence is a crucial legal provision enshrined in the Bharatiya Nyaya Sanhita, 2023 (BNS, 2023), formerly governed by the Indian Penal Code, 1860. The right of private defence was codified under Sections 96 to 106 of the Indian Penal Code, 1860 (IPC).
The Right of Private Defence empowers individuals to protect themselves and others from unlawful aggression. The BNS, 2023 retains the essence of the law while modernizing its framework to address contemporary challenges.
Private Defence in India: Legal Provisions and Implications
Things done in private defence (Section 34)
Actions taken while exercising the right of private defence are not considered offences.
Right of private defence of body and of property. (Section 35):
Protection of Person: Individuals may defend themselves and others against offences affecting the human body.
Protection of Property: Individuals may defend their own property and that of others against offences like theft, robbery, mischief, or criminal trespass, including attempts of such offences.
Restrictions: This right is subject to limitations outlined in Section 37.
Right of private defence against act of a person of unsound mind, etc. (Section 36):
When an act, which would otherwise qualify as an offence, is not deemed so due to the youth, immaturity, unsoundness of mind, intoxication, or misconception of the person committing it, every individual retains the same right to private defence against that act as they would if it were an offence.
Illustration: A enters a house by night, which he is legally entitled to enter. Z, in good faith, taking A for a house-breaker, attacks A. Here Z, by attacking A under this misconception, commits no offence. But A has the same right of private defence against Z, which he would have if Z were not acting under that misconception.
Acts against which there is no right of private defence (Section 37):
Against Public Servants:
The right does not apply against acts that do not reasonably cause fear of death or grievous hurt if performed by a public servant acting in good faith under an official capacity, even if the act isn’t strictly legal.
Similar provisions apply if the act is done under the direction of a public servant.
Availability of Authorities:
The right cannot be exercised if there is sufficient time to seek help from public authorities.
Proportionality of Force:
The defender must not inflict more harm than necessary for protection.
Explanation 1: A person does not lose their right to self-defence against an act by a public servant unless they know or have reason to believe the person is a public servant.
Explanation 2: A person does not lose their right to self-defence against an act done under a public servant’s orders unless:
They know or have reason to believe the person is acting under such orders.The person states their authority or provides written proof of their authority if requested.
When right of private defence of body extends to causing death. (Section 38):
The right extends to causing death or other harm to the assailant under specific circumstances:
Apprehension of Death: When the assault may reasonably cause fear of death.
Apprehension of Grievous Hurt: When the assault may cause fear of serious injury.
Intentions of the Assailant: If the assault is intended to commit rape, satisfy unnatural lust, kidnap or abduct, wrongfully confine under circumstances restricting access to authorities, or involves throwing or administering acid causing fear of grievous hurt.
When such right extends to causing any harm other than death (Section 39)
If the offence does not fall under the categories specified in Section 38, the defender cannot cause death but may inflict any harm short of causing death.
Commencement and continuance of right of private defence of body(Section 40):
The right to defend one’s body arises the moment there is a reasonable apprehension of harm due to an attempt or threat to commit an offence, even if the offence is not yet completed. This right remains valid as long as the threat or fear of danger persists.
Commencement and continuance of right of private defence of property (Section 43)
The right of private defence of property:
(a) Begins when there is a reasonable apprehension of danger to the property.
(b) Against theft, it continues until the offender has retreated with the property, public authorities have been contacted, or the property is recovered.
(c) Against robbery, it persists as long as the offender causes or attempts to cause death, hurt, or wrongful restraint, or as long as the fear of immediate death, injury, or personal restraint exists.
(d) Against criminal trespass or mischief, it remains in force as long as the offender continues committing such acts.
(e) Against house-breaking during the night (after sunset and before sunrise), it continues for the duration of the act.
Right of private defence against deadly assault when there is risk of harm to innocent person (Section 44)
In situations where defending against a life-threatening assault unavoidably risks harm to an innocent person, the defender’s right extends to taking that risk.
Judicial Interpretations
[1] Puran Singh v. State of Punjab (1975)
In this case, the Supreme Court succinctly outlined the conditions under which the right of private defence can be exercised. These are:
Lack of Time for Public Authorities: The situation must be such that there is insufficient time to seek assistance from public authorities to address the danger.
Reasonable Apprehension of Harm: There must be a justifiable fear of either:
Death or grievous injury to the person; orSerious danger to the property involved.
Proportionate Response: The response should not exceed what is necessary to avert the danger, ensuring no excessive harm is caused beyond what the situation demands.
[2] Darshan Singh v. State of Punjab (2010)
The right to private defence is available to a person who is under an imminent threat and has no other option but to act in self-defence. Excessive force beyond the scope of defence was held punishable.
Conclusion
The Right of Private Defence under the Bharatiya Nyaya Sanhita, 2023, ensures a balance between personal security and societal order. While it empowers individuals, the provisions impose clear limits to prevent misuse and promote justice.
References
[1] Indian Penal Code, 1860
[2] Bharatiya Nyaya Sanhita, 2023
[3] Puran Singh v. State of Punjab (AIR 1975 SC 1674)
[4] Darshan Singh v. State of Punjab [2010 (2) SCC 333]
