Fighting the Wrong, Rightly

The Bharatiya Nyaya Sanhita (BNS), 2023, a landmark legislation replacing the Indian Penal Code, 1860, seeks to modernize and indigenize the criminal law framework in India. Among its key provisions is the codification and reaffirmation of the right of private defence, a principle deeply rooted in the natural instinct of self-preservation. This right serves as a legal safeguard for individuals who are compelled to protect their person or property from unlawful aggression, especially in situations where immediate recourse to public authorities is not feasible. Recognizing the need for balance between individual protection and societal order, the BNS lays down detailed provisions to regulate the scope, commencement, extent, and limitations of this right.

Is an act done in the exercise of the right of private defence considered an offence?

No, nothing is an offence which is done in the exercise of the right of private defence.

How is the right to private defence viewed in democratic and civilized societies?

Self-preservation is a basic human instinct and is recognised by the criminal jurisprudence of all civilised countries. All free, democratic, and civilised countries recognise the right of private defence within certain limits.

What can a person defend under the right of private defence?

Every person has the right, subject to certain restrictions, to defend:

• his own body and the body of any other person against any offence affecting the human body;
• the property, movable or immovable, of himself or any other person against offences such as theft, robbery, mischief, or criminal trespass, or attempts to commit such offences.

Does the right of private defence apply against an act done by a person of unsound mind or similar incapacity?

Yes, even if an act is not legally an offence due to the person’s youth, lack of understanding, unsoundness of mind, intoxication, or misconception, the right of private defence applies as if it were an offence.

Are there any illustrations of this principle?

• If Z, a person of unsound mind, attempts to kill A, Z is guilty of no offence. But A has the same right of private defence as he would if Z were sane.
• If A lawfully enters a house at night and Z mistakenly believes A to be a house-breaker and attacks him, Z commits no offence. However, A retains the right of private defence as if Z were not acting under a misconception.

Against which acts is there no right of private defence?

There is no right of private defence:

• against an act that does not reasonably cause the apprehension of death or grievous hurt if done by a public servant acting in good faith;
• against such acts done under the direction of a public servant acting in good faith;
• when there is time to seek protection from public authorities.

Can the right of private defence be used to inflict excessive harm?

No, the right of private defence never extends to inflicting more harm than is necessary for defence.

Are there any explanations regarding acts of public servants?

A person is not deprived of the right of private defence against a public servant’s act unless he knows or has reason to believe the person is a public servant. Similarly, if the act is done under the direction of a public servant, the right of defence exists unless the person knows or has reason to believe that the act is so directed, or the authority is not produced upon demand.

When does the right of private defence of the body extend to causing death?

The right extends to causing death if the assault reasonably causes apprehension of:

• death;
• grievous hurt;
• rape;
• gratification of unnatural lust;
• kidnapping or abduction;
• wrongful confinement under circumstances preventing access to public authorities;
• throwing or administering acid likely to cause grievous hurt.

What condition must be met to claim this right?

The accused must show a reasonable ground to apprehend grievous hurt or death, making it necessary to avert impending danger.

When does the right of private defence of the body not extend to causing death?

If the offence is not one of the types mentioned above, the right does not extend to voluntarily causing death but does extend to causing any harm other than death, under the same restrictions.

When does the right of private defence of the body begin and end?

It begins as soon as there is a reasonable apprehension of danger from an attempt or threat to commit an offence, even if the offence is not yet committed. It continues as long as the danger persists.

Is it necessary for a person to wait until seriously injured before acting in private defence?

No, claiming the right only after sustaining serious injury is a misunderstanding. The right exists upon reasonable apprehension of danger.

When does the right of private defence of property extend to causing death?

It extends to causing death if the offence is:

• robbery;
• house-breaking after sunset and before sunrise;
• mischief by fire or explosives on dwellings or property custody places;
• theft, mischief, or trespass under circumstances likely to result in death or grievous hurt if the right is not exercised.

When does the right of private defence of property not extend to causing death?

If the offence is theft, mischief, or criminal trespass not listed above, the right does not extend to causing death but extends to causing any harm other than death.

Is it required to carefully weigh the force or weapon used in the heat of the moment?

No, if the threat is real and immediate, the defender need not precisely judge the kind of instrument or force used.

When does the right of private defence of property commence and continue?

• It commences when reasonable apprehension of danger arises;
• against theft, it continues until the offender retreats with the property, or public authority intervenes, or the property is recovered;
• against robbery, it continues as long as the offender causes or attempts death, hurt, or restraint, or as long as such fear persists;
• against criminal trespass or mischief, it continues while the act continues;
• against house-breaking after sunset and before sunrise, it continues as long as the house-trespass continues.

What if exercising the right of private defence against a deadly assault risks harming an innocent person?

If the defender cannot effectively exercise the right without risking harm to an innocent person, the right extends to running that risk.

Is there any illustration of this principle?

If A is attacked by a mob attempting to murder him, and he cannot defend himself without firing into the crowd, even at the risk of harming children among them, he does not commit an offence if harm occurs.

Therefore, the right of private defence, as enshrined in the Bharatiya Nyaya Sanhita, 2023, reflects a judicious blend of individual liberty and public responsibility. While it empowers citizens to act in self-protection against imminent threats, it also imposes clear boundaries to prevent misuse. The BNS, by laying down specific conditions under which this right may be exercised, including against whom, to what extent, and for how long, aims to strike a careful balance between lawful defence and unlawful retaliation. Judicial pronouncements have further enriched the understanding of these provisions, emphasizing that the exercise of this right must always be reasonable, proportionate and necessary. In essence, the updated statutory framework reinforces the idea that while the law does not encourage vigilantism, it does not expect passive suffering in the face of wrongful aggression either.

Muneeb Rashid Malik is an Advocate practicing before the Hon’ble Supreme Court of India, Hon’ble High Court of Delhi and Hon’ble High Court of Jammu & Kashmir and Ladakh. He tweets @muneebmalikrash.