The Right to Private Defence in India

No act is an offense if it is done in the exercise of the right of . Making for the purpose of protecting one’s person or is what we call acting in private defense. This right to protect oneself from physical harm is one of the basic rights recognized by every system of law and must be fostered in the citizens of every free country.

The primary duty of every state is undoubtedly the protection of the life and property of its people. But it is not possible for any state, no matter how large its resources are, to assign a policeman to guard and protect each and every individual at all times. The state, therefore, has given this right to every citizen of the country to take the law in his own hands but only to the extent necessary for ensuring his safety or private defense. A self-defender is thus not answerable to law for acting in self-defense.

The cardinal principle of self-preservation gives rise to the right of private defense. This is because there is nothing more important than physical well being, to a man or an animal or any living thing, for that matter.

Man has a natural tendency to protect himself if he predicts physical harm. This right of private defense, which is purely preventive and not punitive or retributive in nature, is extremely important for the protection of one’s life, liberty, and property. It is a right inherent in a man. However, the right of private defense will not be available to an individual if he has the time to have recourse to the protection of police authorities. The right will also not be available if there is no reasonable or grievous harm.

The Right to Private Defence in India

In the case of Jai Dev v. the State of Punjab, it was held that the court, must keep in mind certain factors such as the injuries received and caused by the accused, the nature of the threat to him,  whether he had the time and opportunity to call the public authorities, etc while allowing a plea for private defense.

In Puran Singh v. the State of Punjab, the in its guidelines held that the right of private defense can be exercised in the following three circumstances:

  1. When there is a paucity of time to call the public authorities.
  2. If there is fear and apprehension that death or grievous harm can be caused to a person or property.
  3. When the force used is not more than what was required in the situation.

The allows the citizens to protect themselves and their property in a certain set of circumstances where the state cannot carry out its obligation of protecting the people. This power is given to the people to act on behalf of the state to defend themselves and their property is called the right to private defense. This right has been incorporated in the IPC between sections 96 to 106.

Section 96 to Section 106 of the Indian penal code protects an individual for his acts done in private defense. The provisions contained in these sections of IPC grants a man with the authority to use the necessarily required force against any assailant or wrong-doer for protecting one’s own self and property as well as another’s or property when no immediate aid from the state machinery is readily available. In doing so, he will not be answerable before any law. Section 96 clearly puts forward that nothing is an offense which is done in the exercise of the right to private defense.

The Right to Private Defence in India

Acts committed in the exercise of the right of private defense are not an offense and therefore doesn’t give rise to any right of private defense in return. In case of a free fight, the right of private defense will not be available to either of the parties. Each individual would be responsible for his own acts.

The burden of proving that the act was committed in the exercise of the right of private defense will be upon the person pleading the right of private defense. However, an accused may be acquitted on the grounds of the right of private defense even if he has not specifically pleaded for it.

The IPC clearly spells out the boundaries of the right. At times, the authorities of the state in the process of carrying out their duties have to use force. The Indian penal code under section 99 clarifies that an act will not qualify as an act of private defense if it is done against a public authority using force lawfully and in good faith.

The right of private defense is not a shield to justify an act committed out of aggression. The facts and circumstances of each case have to be judged and weighed to decide whether the accused had in fact acted under this right.  Assumptions by the accused, regarding the possibility of an attack without any reasonable basis, do not entitle him to exercise his right of private defense. There must be an offense committed or attempted either against the person exercising the right or against another to invoke the plea of right of private defense. The right of private defense may completely absolve a person from all the guilt even when he has caused the death of another person, provided that the deceased was the actual assailant, and the offense committed by the deceased falls within any one of the categories enumerated under Sections 100 and 103 of the IPC.

In Vishwanath v. the State of U.P., it was held that a brother in the exercise of his right of private defense may kill his sister’s abductor. Such killing will be within the meaning of the right.

The Right to Private Defence in India

As per Section 97 of IPC, the right of private defense includes two rights; the Right of private defense of the body and the Right of private defense of property. Here Body may be one’s own or of another person. Likewise, the property may be of oneself or of any other person; it may be movable or immovable. Under English law, the right of private defense is limited only to the defense of one’s own body and property. The right covers the acts done for defending the body or property of another only in cases where some kind of relationship exists between the parties, such as father and son or husband and wife, etc. But in India, this right extends to the defense of the body and property of another as well. Section 97 of IPC allows even a stranger to defending the person or property of another.

There are no scales to measure as to how much force is enough in a particular circumstance to defend oneself or one’s property. It can also not be expected from an individual defending himself or his property to weigh and measure the danger and use only so much force which would be absolutely necessary at that point.

In Butta Singh v. The State of Punjab, the Supreme Court held that a person who is apprehending any harm or injury cannot measure in golden scales the number of injuries required to disarm the assailants in that particular moment.

The Right to Private Defence in India

In James Martin v. the State of Kerala, the Apex Court held: “In moments of excitement and disturbed mental equilibrium it is often difficult to expect the parties to preserve composure and use exactly only so much force in retaliation commensurate with the danger apprehended to him.”

The law doesn’t expect the person acting in private defense when his life is in danger to measure the extent and degree of the force employed by him in his defense, but this doesn’t give him the freedom and authority to resort to force which is in excess of the requirement of the case.

The right of private defense is available against any attacker, be it a , an , whether with or without mens rea. The physical or mental capacity of the person is no bar to exercise the right. According to section 98 of IPC, the right of self-defense is available against a person of unsound mind as well. But force must be applied only to the extent necessary for the defense.  The law does not allow an individual to begin as a defender and then turn into an attacker while he exercises his right of private defense.

Section 106 of IPC deals with the exercise of the Right of private defense when there is a risk of harming an person. If the defender is in a situation when there is a reasonable apprehension of death and he cannot exercise his right of self-defense without the risk of harming an innocent person, then his right of private defense extends to the running of that risk.

In the State of U.P. v. Ram Swaroop, the SC held that the right of self-defense comes to an end the moment the necessity for the very right ends.

The right of private defense is not a tool to take the law in hand. It is a power vested in a private person to protect him or another when there is an apprehension of any harm or fear of any unsocial element. There is a very thin line between when the right begins and when it can no longer be exercised. When the apprehension of harm ceases, that very moment the right also ceases. The right to defend oneself and one’s property is an important weapon of every citizen. But people can also misuse this right of self-defense by considering it as a license given by law. It is important to understand that this is not a right granted to take revenge but a right towards the threat and imminent danger of an attack.

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