Published on 16th January 2025
Authored By: Shubham Singh
Banaras Hindu University
Abstract
‘Self-defence is not only our right; it is our duty’. This statement was once said by the 40th President of the United States, namely Ronald Reagan, while America was indulged in a proxy war against the erstwhile Soviet Union in Afghanistan during the cold War era. The principle of self-defence owes its origin to our ancient old philosophy of ‘Shaastra and Shastra’, deeply embedded in our Indian civilisation which connotes a lethal blend of knowledge and weapons. But it does not denote that we Indians believe in the notion of violence. We have never waged a war against any alien country in the first instance. Even our honourable Prime Minister, Narendra Modi, once said, “India has given Buddha to the world, not Yuddha(war)”. But whenever our existence and cultural identity have felt threatened by any foreign invasion, then we have never refrained from picking up arms against the adversary and confront that foe in the exercise of our right to self-defence. This paper aims to elucidate the right to self-defence under the recently enacted Bharatiya Nyaya Sanhita,2023, by elaborating its relevant provisions in the light of some leading cases.
Introduction
You people may be wondering whether the use of violence is justified in an act of self-defence. The answer to this lies in the grundnorm of our Vedic religion, i.e., the Mahabharata in which we can find a famous saying of Lord Krishna –
“Jyayamsamapi cedvrddham gunairapi samanvitam atatayinamayantam hanyadghatakamatmanah” The aforesaid verse of our sacrosanct text implies that when one is involved in a bloodshed to defend himself/herself from the aggressors, who were approaching to kill him/her or to harm his/her family or to encroach upon his/her territory, then the law of karma will not apply against him/her because it is deemed to be the biggest dharma of every individual to protect his/her body, family and property.
It was owing to this historical background that the right to self-defence found its place in the
Indian Penal Code of 1860 as a general exception under Chapter IV, enumerated in sections 96 to 106, which intended to exonerate a culprit from any criminal liability under certain specific circumstances.
But with the repeal of the Indian Penal Code,1860, the right to self-defence got enshrined under Chapter III from sections 34 to 44 of the Bharatiya Nyaya Sanhita of 2023.
Key provisions pertinent to self-defence
Under section 34 read with section 35 of the Bharatiya Nyaya Sanhita,2023, it is categorically expressed that no act is an offence which is done while exercising the right of private defence of one’s own body and property(movable as well as immovable) or even the body and property of any third person.
I’m pretty sure that a very common question may have infiltrated your mind as well, i.e., Can I exercise my right of private defence against a police officer who has physically assaulted me?
The answer to this question can be located in section 37 of the Bharatiya Nyaya Sanhita,2023. You cannot avail your right to self-defence against any act which is done by a civil servant acting with a bonafide intention in the discharge of his official duties, even though that act may not be sanctioned by law, unless such act causes a reasonable apprehension of death or grievous hurt in your mind.
Here it should be noted that no actual injury or harm is required to activate one’s right of private defence, i.e., a mere fear of peril to the body or the property, accruing from any attempt or threat to commit a crime even though that offence has not yet been committed in the real world, is sufficient enough to trigger the right to self-defence. This is, by and large, the substance of sections 40 and 43 of the Bharatiya Nyaya Sanhita,2023.
In the George Dominic Varkey v. State of Kerala1 case, the Apex Court observed that the apprehension, which is in the sub-conscious mind of the person exercising his right of private defence, must be ascertained objectively with respect to the facts and circumstances of each case.
However, a person cannot exercise his right to self-defence in a situation, when he has an ample of time to have recourse to the law-enforcing agencies. In the Emperor v. Mammun landmark case, five accused people approached and brutally assaulted a man, who was cutting rice in their agricultural field. The victim sustained six fractures in his cranium in addition to other critical injuries and consequently, died on the spot. The accused pleaded the defense of exercising the right of private defence of their estate and used force not to kill but only to expel the trespasser from their land. However, the Privy Council convicted the accused of murder and ruled that the right to self-defence is not available when there is plenty of time to seek the legal aid of competent public authorities.2
Besides, an individual is required to exert only a bare minimum force to repel the aggressor, i.e., he should not inflict more harm than is needed for the sake of private defence. In the Mahabir Choudhary v. State of Bihar3 case, the Apex Court upheld the conviction order of the appellant, who gunned down three persons to thwart their attempt of committing mischief by obstructing the waterflow. The court further added that the appellant had the right to self-defence to safeguard his property, but not by transgressing his domain of private defence.
Section 38 of the Bharatiya Nyaya Sanhita of 2023 contemplates voluntary causing of death to the aggressor, if the offence committed by him is of such a nature as enumerated below:-
- An assault which may create a reasonable apprehension in the mind that death or grievous hurt will be the consequence of it
- An assault intending to commit rape
- An assault intending to please illicit sexual appetite
- An assault intending to abduct or kidnap a person
- An assault having the mens rea of wrongful confinement of a person under such circumstances which may create a reasonable apprehension in his/her mind that he/she will not be able to obtain assistance from the public authorities for his/her liberation.
- An assault involving the throw or administration of acid or an attempt thereof which may cause reasonable fear in the mind that grievous hurt will otherwise be the result of it.
However, as per section 39, if the offence committed is not of any of the descriptions as specified above under section 38, then the extent of right of private defence of the body is only limited to the causing of any harm other than death to the assailant. In the landmark case of Amjad Khan
- The State4 , a communal riot broke out between the local Muslims and the Sindhi refugees. An angry mob gathered there, vandalised and plundered the shop of the appellant’s brother, and subsequently started knocking at the doors of the appellant’s shop with sticks. As a result, the appellant fired two gunshots which eventually led to the death of one Sindhi. Here, the Apex Court held that given the circumstances of the present case, there existed reasonable grounds for the accused to apprehend that death or grievous hurt would be caused either to himself or to his family members, and hence, was totally absolved from any liability of causing the death of one of the aggressors while exercising his right to self-defence.
Section 41 of the Bharatiya Nyaya Sanhita,2023, deals with a situation in which the right of private defence of a property extends to the act of slaying the wrong-doer, i.e., it envisages the voluntary causing of death to the civil offender, if the offence committed by him or attempted to be committed by him is of such a nature as cited below:-
- House-breaking at night
- Robbery
- Mischief by fire or by explosion committed on any building/tent/vessel which is used for the purpose of human dwelling or for the purpose of custody of property
- Mischief/theft/house-trespass under such conditions as may instil a sense of reasonable fear of death or grievous hurt in the mind of the victim.
However, as per section 42, if the offence committed(which may be theft/mischief/criminal trespass) does not belong to any of the descriptions as prescribed under section 41, then the extent of exercising the right to private defence of the property is only confined to causing of any harm other than death to the wrong-doer. In the Jai Bhagwan and Ors. v. State of Haryana5 prominent case, the deceased went to the disputed land in possession of the accused party in order to irrigate the field. This merely amounted to criminal trespass which enabled the
appellants to exercise their right of private defence of their property by causing any harm other than death, but the appellants exceeded the sphere of private defence of their property by intentionally killing the deceased by inflicting fatal wounds to him. Therefore, the Apex Court upheld the conviction order of the appellants as they were not entitled to any protection under IPC section 104 which corresponds to section 42 of the Bharatiya Nyaya Sanhita,2023.
The gist of section 44 of the Bharatiya Nyaya Sanhita,2023, is that if a person finds himself entangled in such a situation in which he cannot effectively exercise his right to self-defence against an assault which implants a reasonable apprehension of death in his mind without running the risk of causing harm to an innocent civilian, then he is permitted by law to run that risk for the sake of his private defence. In the Wassan Singh v. State of Punjab6 case, the accused had received nine severe injuries out of which two were life-threatening, i.e., one on the head and the other one was caused by a sharp-edged dagger. Under such circumstances, the accused opened fire at the assailants but unfortunately, one of the bullets missed its target and accidently hits an innocent female passer-by, thereby killing her. Here, the Supreme Court held that the accused, having a reasonable apprehension of death or atleast of grievous hurt, had rightfully exercised his right to self-defence of his body which was legitimized even to the extent of causing the death of any third party.
Conclusion
In a nutshell, it can be inferred from the above discussion that the right to self-defence is not merely a creature of any statute but is inherent in the very essence of our Indian Constitution. The jurisprudential dimension underlying the right to self-defence conferred upon by the Bharatiya Nyaya Sanhita(2023) is that the law does not expect a person to act as a coward or to be at the mercy of the State all the time and to retreat when attacked or confronted with an impending danger to life but to use a proportionate force to deter the aggressor. This was also one of the observations made by the Apex Court in the Darshan Singh v. State of Punjab7 landmark case.
However, it does not mean that the right of private defence is to be exercised with a vindictive agenda in a malafide manner just to pay off old scores. Therefore, it should be the primary responsibility of the judiciary to strike a perfect balance between the right to self-defence of one person and the right to life of another person.
References
[1] (1971) 3 SCC 275
[2]https://www.legalserviceindia.com/article/l470–Private–Defence.html
[3] (1996) 5 SCC 107
[4] AIR 1952 SC 165
[5] (1999) 3 SCC 102
[6] (1996) 1 SCC 458
[7] (2010) 2 SCC 333