RIGHT OF PRIVATE DEFENCE UNDER BHARATIYA NYAYA SANHITA

Published on 18th January 2025

Authored By: S. Livinasree
School of Excellence in Law

 

INTRODUCTION

Imagine a situation where an unknown person entered the house to commit burglary and also threaten the people in the house. In that moment the right to private defence serves as a lifeline, giving people legal power to defend themselves and their loved ones from harm.  Every individual has the right to life and liberty, and it must be protected by the state. However, the state cannot protect every individual in each situation. Therefore, the state establishes the right of private defence. Self-help is the first rule of criminal law observed by Hari Singh Gour in his celebrated book on the Penal Law of India[1]. “The right of defence is Necessary” observed by Bentham in his book ‘ Principles of penal laws[2]’.

India’s criminal justice system has undergone major revision owing to the Bharatiya Nyaya Sanhita (BNS), which took the role of the Indian Penal Code (IPC), which was created during the colonial era. The BNS works to modernize laws so that they reflect the demands of society today while maintaining the Fundamentals of justice and equity. The BNS has kept the idea of private defence, demonstrating its continued significance in upholding the harmony between individual liberties and public order.

The BNS has certain provisions that are similar to the definitions of the concept of private defence found in the IPC from sections 96 to 106. These sections provide a comprehensive understanding of the situations in which private defence can be lawfully employed. Sections 34 to 44 of BNS deal with private defence.

RIGHT TO PRIVATE DEFENCE

Section 34 states that an act of self-defence is not considered an offence. It allows the person to use private defence only when it is necessary and also at proportionate force to protect themselves, others, or property from imminent damage as long as the act is restricted to legal limits[3].

Section 35 states that every person has the right of private defence of one’s own body and another’s body against offences that endanger the human body and also for the protection of one’s property or other’s property, whether it may be immovable or movable, or for the offence which falls under the definition of theft, robbery, mischief or criminal trespass and can also exercise private defence for attempting to commit these offences[4].

PRIVATE DEFENCE AGAINST UNSOUND MIND PERSON[5]

Clause 36 indicates that an action taken by an individual in private defense against a person who is mentally unstable, under the influence of alcohol, or acting under a mistaken belief is not considered an offense, even though the behavior of the mentally unstable or intoxicated individual falls under exceptions.

Illustration

A, a person of unsound mind attempts to stab B; Here, A is guilty of no offence, But B has the same right of private defence that he would have if A were sane.

PRIVATE DEFENCE OF BODY

Extent of the Right to Inflict Death in Private Defence of Body[6]

Section 38 states the right of private defence of the body extends, under the restriction outlined in Section 37, permits the voluntary infliction of death or other harm upon an assailant upon specific circumstances. This right applies when the offence prompting the defence falls into the following categories:

 (a) assaults that cause a reasonable fear of death;

(b) assaults that cause a reasonable fear of grievous harm;

 (c) assaults that have the intent to commit rape;

 (d) assaults that have the intent to satisfy unnatural lust;

(e) assaults that have the intent to kidnap or abduct;

(f) an assault with intent to confine a person under conditions preventing recourse to public authorities;

(g) acts involving the administration or attempted administration of acid that cause a reasonable fear of grievous harm.

Scope of the Right to Cause Harm Apart from Death in Private Defence of the body:

Section 39 states that for offences that do not fall under the categories specified in Section 38, the right of private defence of the body does not permit the voluntary causing of death to the assailant. However, within the restrictions outlined in Section 37, this right allows for infliction. However, within the limitations outlined in Section 37, this right allows for the infliction of any harm other than death on the assailant as a means of self-defence.

Initiation and Continuance of right of private defence of body:

Section 40 prescribes that the right of private defence of the body arises the moment when there is a reasonable apprehension of bodily harm emerges from an attempt or threat to commit an offence, even if the offence has not yet happened. This right will last as long as there is a clear risk to the body. It emphasizes that the fear of imminent harm, not the actual conduct of an action, is what initiates self-defence. The duration of the right corresponds with the permanence of the threat, guaranteeing that individuals can protect themselves until the threat is eliminated.

PRIVATE DEFENCE OF PROPERTY[7]

Extent of the Right to inflict death in private defence of property:

Section 41 states that the right to privately defend one’s property, as outlined in Section 37, can include the intentional infliction of death or other harm on the wrongdoer. This right is exercised when the offence or attempted offence prompting the defence involves specific grave acts. These include:

  • robbery;
  • housebreaking occurring between sunset and sunrise;
  • mischief by fire or explosives targeting structures used as dwellings or for safeguarding property;
  • theft, mischief, or house trespass under circumstances that reasonably create an apprehension of death or grievous harm if the right is not exercised.

This guarantees a strong defence against serious threats to property.

Extent of the Right to inflict harm other than death in Private Defence of property[8]:

Section 42 prescribes the boundaries of the right of private defence concerning offences like theft, mischief or criminal trespass that do not fall within the grave categories specified earlier in the same section. It states that in certain situations, the right to private defence does not include the wilful taking of a life. These restrictions provide a balance between the need for self-defence and the ban on causing excessive harm that is out of proportion to the offense.  However, this section permits the punishment of the perpetrator, excluding death, as long as it complies with the limitations specified in Section 37.

These limitations stress that the damage must not be greater than what is required to stop or discourage the offence. The clause protects people’s rights to protect their person or property without giving them unfettered permission to kill someone for petty crimes. This clause ensures that the right to private defence is exercised proportionately and reasonably, acting as a crucial check against abuse. It emphasizes the idea that, even if people have the right to defend their safety and property, such measures must adhere to the law and ethical standards to uphold justice and equity.

Commencement and Continuance of right of private defence of property[9]:

Section 43 talks about the right of private defence of property commencement and its continuation. The right of private defence of property,

 (a) commences when there is a reasonable fear of danger to the property;

 (b) the prohibition against the offence of theft lasts until the offender has escaped with the property, or until the property has been retained or the assistance of the public authorities has been obtained;

 (c) the prohibition against robbery lasts as long as the offender causes or attempts to cause death, injury, or wrongful restraint to any person, or as long as the offender continues to cause or attempt to cause death, injury, or wrongful restraint;

 (d) the prohibition against criminal trespass or mischief continues as long as the criminal trespass or mischief continues;

RIGHT TO PRIVATE DEFENCE AGAINST THE INNOCENT PERSON

 Section 44 allows the right of private defence against an innocent person. It states that when there is any reasonable apprehension of death and the person cannot effectually exercise the right of private defence without risk of harm to an innocent person, such right can be exercised even against an innocent person[10]

Illustration:

A is attacked by the gang in a public place. B has no other option to defend himself except to use his firearm, but there several other persons in that place. A shoots in self-defence, inadvertently harming one of the persons. In this case, A has committed no offence, his act is justified even though it caused harm to an innocent person.

LIMITATIONS

Section 37 states the condition in which the right of private defence cannot be invoked. The private defence against the act of a public servant or by the direction of a public servant who is operating in good faith under the official authority, even if that act is not exactly legal, as long as it does not rationally apprehend death or grievous hurt.  Furthermore, the right is null and void where there is adequate time to seek public authority intervention, and it bans causing more harm than is necessary for defence.

BURDEN OF PROOF

When an accused raises a plea of private defence, he must establish and should prove that the circumstances were made him to exercise the right of private defence. The accused may discharge this burden either by leading defence evidence or from the evidence led by the prosecution or from the evidence. Under section 105, Bharatiya Sakshya Adiniyam,2023 the burden of proof is on the accused to prove the right of private defence. It is not open to the court to presume private defence by the accused in the absence of relevant circumstances or material on record[11].

 CONCLUSION

In conclusion, the concept of private defence under Bharatiya Nyaya Sanhita,2023 reflects a balance between safeguarding individual rights and ensuring societal order. The legal framework under the BNS is clear and precise in retaining the core principles of justice compared to its predecessor, the IPC. In reality, everyone has the right to private defence, which is a useful tool.  In a community where the government may not provide prompt protection, the acknowledgment of private defence allows individuals to protect their essential rights. Nonetheless, this right must be applied thoughtfully and within legal limits to prevent abuse, ensuring that it is used as an instrument of justice and not revenge. The BNS, with its comprehensive provisions, maintains this careful equilibrium, reinforcing its dedication to justice and social cohesion.

 

REFERENCES

[1] Dr. P.K. Pandey, RIGHT TO PRIVATE DEFENCE IN INDIA, [2017], Vol. 16, Law Exam Times, < https://ssrn.com/abstract=3502727> accessed 12 December 2024

[2] ibid

[3] Nancy Sharma, RIGHT OF PRIVATE DEFENCE UNDER BNS (SECTION 34 – 44), ( Law gist,  19 September 2024) https://thelawgist.org/right-of-private-defence-under-bns-section-34-44/accessed 12 December 2024

[4] Hinesh, ‘Right of private defence under BNS (Bharatiya Nyaya Sanhita)’, ( Legal Service India), https://www.legalserviceindia.com/legal/article-18134-right-of-private-defence-under-bns-bharatiya-nyaya-sanhita-.html#:~:text=Section%2035%20of%20BNS%20grants,force%20to%20counteract%20such%20actions accessed 12 December 2024

[5] ibid

[6] Anjali Dhingra, To what extent can you exercise your right of private defence?, (ipleaders,19 June 2019)https://blog.ipleaders.in/to-what-extent-can-you-exercise-your-right-of-private-defence/ accessed 12 December 2024

[7] Pranjal Rathore, Private defence related to property: A guide (ipleaders, 20 December 2019) < https://blog.ipleaders.in/private-defence-related-to-property-a-guide/>

[8] A.Gowtham ,K.Roja et al., A STUDY ON PRIVATE DEFENCE IN INDIA : A LEGAL ANALYSIS,Volume 120 No. 5 2018, 717-724, International Journal of Pure and Applied Mathematics, <https://acadpubl.eu › > accessed 12 December 2024

[9] ibid

[10] Nancy Sharma, RIGHT OF PRIVATE DEFENCE UNDER BNS (SECTION 34 – 44), ( Law gist,  19 September 2024) https://thelawgist.org/right-of-private-defence-under-bns-section-34-44/accessed 12 December 2024

[11] PSA Pilla, Criminal law,15th edition, Law books, 2023

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