Published on: 20th January 2025
Authored by: Poonam Mohanta
Introduction
The Right of Private Defense falls under Criminal Law of India and is discussed under Chapter III (General Exceptions) of Bharatiya Nyaya Sanhita 2023 (BNS). It is essentially a preventive right, not punitive, ensuring the safety of one’s private body and property against specific offences. The power utilized must not exceed what is necessary to ensure personal safety.
Fundamental Basis of the Right
- Exercisable against unlawful hostility
- Individual responsibility to secure oneself and property
- Applicable when prompt state guidance is inaccessible
- Must be exercised reasonably
- Force used should be proportionate to the threat
- Must not be exercised with malicious intention
- Cannot be exercised against community workers performing legitimate duties
Legislative Provisions Under BNS
Section 34: Private Defence
Outlines things done in Private Defence
Section 35: Right of Private Defence of Body and Property
Every person has the right to defend:
- Their own body and others’ bodies against offences affecting human body
- Property (movable or immovable) against theft, robbery, mischief, or criminal trespass
Section 36: Defense Against Acts of Unsound Mind
Provides defense rights against acts by persons who are:
- Of young age
- Lacking maturity of understanding
- Of unsound mind
- Intoxicated
- Acting under misconception
Section 37: Limitations on Private Defence
No private defence is available:
- Against reasonable acts by public servants acting in good faith
- Against acts done under direction of public servants in good faith
- When there is time to seek protection from public authorities
- The harm inflicted cannot exceed what is necessary for defense
Section 38: Right of Private Defence Causing Death
Allows causing death under specific circumstances:
- When death is reasonably apprehended
- When grievous hurt is reasonably apprehended
- Against assault with intent to commit rape
- Against assault with intent to gratify unnatural lust
- Against assault with intent to kidnap or abduct
- When unable to access public authorities
- Against acid attacks or attempts
Section 39: Right of Private Defence Causing Harm
- Does not extend to causing death if offense isn’t specified in Section 38
- Allows causing harm other than death under Section 37 restrictions
Section 40: Commencement of Right
- Begins when reasonable apprehension of danger arises
- Continues as long as apprehension of danger persists
Section 44: Defense Against Deadly Assault
Extends to risk of harm to innocent persons when:
- Defending against reasonable apprehension of death
- Defender cannot exercise right without risking harm to innocent persons
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Source: Referenced from drishtijudiciary.com, thelawgist.org