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RIGHT TO PRIVATE DEFENSE

ABSTRACT

The Right of Private defence can be traced to natural law. It is a natural human instinct to protect oneself from any danger or harm being unlawfully caused to him. Law does not stand in the way of the natural right of self-defence of human beings.

This right has been recognized in all free, civilized and democratic countries, along with certain limitations curtailing its misuse.  Necessity is the governing exigency behind the Right to Private defence. The saying “Necessity knows no law” aptly justifies itself when read with this right. That said, this grant has to be scrutinized, keeping in mind the right of the State to protect its citizens and their property.

INTRODUCTION

The Right of Private Defence, which is available to all citizens, is granted under Section 96 to section 106 of the Indian Penal Code, 1860. 

It states that ’nothing is an offence which is done in exercise of the right of private defence’, meaning that every citizen has the right to protect himself from any injury or harm that is being caused or that may be caused instantaneously. In the course of doing the same, if he inflicts harm or injury onto the offender, he shall not be liable for the same.

Lord Macaulay did the first mention of the right to Private Defence; he proposed this idea about 150 years ago in a draft with the intention of empowering a ‘manly spirit’ among the people[1]. An ideal citizen would not sit and watch harm being done to him or his property, or that of another, nor will he wait for recourse to public authorities if there is no time for the same, instead he would use necessary and justifiable power to protect himself and evade the harm. It is said, even God helps those, who help themselves, that is to say, even God cannot help a person if he is not willing to help himself and just waits for help to arrive at him. This is the spirit of the Right of Private Defence. 

RESEARCH METHODOLOGY

In order to understand, examine and deliver this research paper, the methodology used is highly doctrinal in nature. Reliance has been mostly on traditional legal sources such as case laws, statutes, famous legal books, and other legal sources. This paper has taken its form by understanding the case laws and the principles that evolved in law.

REVIEW OF LITERATURE

The study of basic principles for this research paper is mostly done from textbooks available and all the statements written are carefully analyzed and backed by precedents. Ideas of various jurists and philosophers have also enhanced this paper.

The following textbooks have been referred for this project:

  • Ratanlal & Dhirajlal, The Indian Penal Code, thirty-sixth edition(2020), Lexis Nexis
  • K.D. Gaur, The Indian Penal Code, Seventh Edition(2020), Universal Law Publishing
  • PSA Pillai, Criminal Law, fourteenth Edition (2020), Lexis Nexis

RIGHT TO PRIVATE DEFENSE IN LIGHT OF ARTICLE 21 OF THE CONSTITUTION OF INDIA

The grant of the “right to life and personal liberty” under Article 21 of the Constitution of India is one of the first rights of an individual. The life and personal liberty of a person are of high honour in any living system, and this right can only be curtailed by following the due process of law and that too when reasonable circumstances exist for doing the same. The exception given in the form of Right to Private Defence can be said to be an interpretation of the Right to life and personal liberty as it grants the citizens the power to protect body and property from harm and damage[2]

MISUSE OF RIGHT TO  PRIVATE DEFENCE

The right to Private Defence revolves around the idea that ever person has the right to protect himself. The idea of self-protection and preservation is intrinsic in each individual. Every person has the right to stand his ground and defend himself if there is no time to have recourse to public authorities. The Law does not expect a citizen to be a coward and leave at the mercy of the burglar[3].

The term ‘Private Defence’ has not been defined under the Indian Penal Code, thus leaving it to the courts’ interpretation. In such a scenario, it is easy for people with malafide intentions to misuse this grant as a ‘license to kill[4]’ or a ‘license to inflict harm’ onto people, which is definitely not the intention of the statute.

The Right of Private Defence granted Under the Indian Penal Code is very expansive, and it even grants strangers the right to inflict harm for the purpose of protection of an individual, in some grave circumstances; it can even extend to causing death if there is a reasonable and imminent threat of the grave crimes mentioned in section 100 of IPC. This creates a necessary irony, where a person is justified in causing the same harm that he has been granted the right to protect him from.

This right granted to every citizen should not be misused and be treated as a pretext of committing any crime or offence. It is a right granted for defence and not for retaliation and may not be used as a measure of taking revenge[5]. It should not become an excuse to satisfy a person’s vengeance by inflicting more harm than necessary in the name of defending oneself under this right. The right of Private Defence exists in opposite proportion to the extent of the State being capable of protecting the individuals and their property in the respective circumstances. This infers that there is no right to Private Defence when there is enough time to approach public authorities. This right is not an excuse to take the law into your own hands.

REQUIREMENT OF IMMINENT DANGER

The grant of exception of Private Defence depends on certain factors; one of those is imminent danger to the person or property. Whoever exercises right to Private Defence must reasonably believe the presence of imminent danger and the retreat to use force is his only option in the present circumstances. He must show that the use of force was the only recourse available to the person in order to avoid an unlawful attack. The requirement of imminent danger is essential in ascertaining the legality of the claim of the right of Private Defence, and it reveals the intentions of the defender. A time lag between the threat or act of violence and the defensive force used to subvert the justifiability of the right claimed[6]

Another factor to be considered is the use of reasonable force, i.e. not more than necessary. Law balances the interests of both the offender and the defender. The extent of force used to stop the offender should not be beyond requirement excessive or disproportionate to the harm threatened by the illegal attack[7]

Imminence and proportionality help the court determine if the act of defence is an act of self-preservation or an act of retaliation. These essentials help ensure that Law is not misused. This provision does not become a means to escape punishment and hide behind the shield of self-defence[8].

BURDEN OF PROOF

Though the Indian Penal Code is silent on the aspect of ‘Burden of Proof’, it is an important aspect in the practical understanding of this provision.

SECTION 105 OF THE INDIAN EVIDENCE ACT, 1872 PROVIDES:

When a person is accused of any offence, the burden of proving the existence of circumstances bringing the case within any of the General Exceptions in the Indian Penal Code, (45 of 1860), or within any special exception or proviso contained in any other part of the same Code, or any law defining the offence, is upon him, and the Court shall presume the absence of such circumstances.”

This clarifies that the burden of proving the defence or any of its exceptions rests on the accused. The court prima facie does not assume the existence of such circumstances, and it is upon the accused to bring any circumstance within the ambit of the exceptions given in the Indian Penal Code[9].

RELEVANT SECTIONS

The Right to Private Defence has been granted under Chapter IV, General Exceptions of the Indian Penal Code 1860 from Section 96 to Section 106.

SECTION 96: NOTHING IS AN OFFENCE, WHICH IS DONE IN THE EXERCISE OF THE RIGHT OF PRIVATE DEFENCE[10]

The exception granted herein makes an offence a non-offence due to the occurrence of certain circumstances. In a civilized society, each citizen has the right to protect their person and property.    The basic principle behind the doctrine of private defence is that every member, when faced with imminent danger harm to its person or property, and recourse to authorities is not possible, may exercise reasonable force to protect its person and property. In exercise of such force, if he inflicts harm onto the offender or to any other person, he shall not be held liable for such harm.  The Law does not impose a rule on a man to run away or stay at the mercy of the offender. Instead, it expects and permits a man to stand his ground and defend himself and his property[11].

In circumstances where the plea of private defence is not taken, the court can itself consider such a plea if circumstances suggest that the right was exercised. If the court concludes that this right was exercised based on materials placed and evidence brought forward, it may act on it. An accused does not lose the right to Private defence just because they chose a different line of defence[12].

This section only recognizes the right of Private defence, but it is a little vague in expressing the applicability properly. Thus it must read with section 97.

SECTION 97: RIGHT OF PRIVATE DEFENCE OF THE BODY AND OF PROPERTY[13]

This section broadly specifies the offences against which the right of private defence can be exercised subject to limitations laid down in Section 99. These two sections combined together lay down the principles of the right of private defence.

The first part of this section confers the right to protect one’s body and any other person’s body against any offence affecting the human body, which is given in Chapter XVI of the Penal Code.

The second Part confers the right to protect property, one’s own or of another, movable or immovable against the offence or threat of the following: Theft, Robbery, Mischief or Criminal Trespass.

A bare perusal of this section gives the understanding that even a stranger can defend the person or property of another person and vice versa[14].

SECTION 98:  RIGHT OF PRIVATE DEFENCE AGAINST THE ACT OF A PERSON OF UNSOUND MIND[15]

This section grants the exercise of Private defence against a person who, for a reason being a minor, unsoundness of mind or the intoxication or because of any misconception on the part of that attacker gains an exemption from the offence committed. The right of Private defence in such a case is the same as it would have been had the act committed by the attacker been an offence.

SECTION 99: ACT AGAINST WHICH THERE IS NO RIGHT OF PRIVATE DEFENCE[16]

Section 99 imposes certain necessary restrictions on the Right of private defence. It lays down the conditions and the limits within which the right of private defence must be exercised[17]. The section ensures that no one misuses this section to cause harm in the name of Private Defence. This is an important section and is considered in almost every case of Private Defence. It serves as a precondition to this defence, and it is specifically mentioned in Sections 97, 100, 101, 103 and 104[18].

SECTION 99 ENSURES THAT THE RIGHT TO PRIVATE DEFENSE IS EXERCISED ONLY FOR THE PURPOSE OF PROTECTION, NOT FOR RETALIATION AND ONLY IN ABSOLUTE NECESSITY. THE RIGHT OF PRIVATE DEFENCE IS SUBJECT TO LIMITATIONS GIVEN IN THIS SECTION.

  1. The first limitation imposes is that the right to Private Defence cannot be exercised against a public servant, acting within his legal duty in good faith. This exception even extends to acts done by public servants, which may not be strictly justifiable if done under the colour of his office.  

It is to be noted that the act done by the public servant should be legal, and within the colour of his office is to say not in his personal capacity. The act done by a public servant should also be a bona fide act, free of malice. This brings us to note that even the limitation imposed on Private Defense is not absolute; its scope has been strictly defined and curtailed by itself.

  1. The limitation also extends to acts done by a person under directions received from a public servant, though the directions may not be strictly justifiable.
  2. The third limitation is that, when there is time to recourse to a public authority, Private Defense is not exercisable.

It is to be noted that a citizen cannot be deprived of his right to Private Defence unless he knows or has reason to believe that the person committing the act, or threatening to commit, or the person giving directions is a public servant.

SECTION100: WHEN THE RIGHT OF PRIVATE DEFENCE OF THE BODY EXTENDS TO CAUSING DEATH[19]

As mentioned before, the Right to Private Defence is so vast that it even covers the killing or causing any other harm in protecting the body, subject to the restrictions mentioned in Section 99.

The brutal acts against which this right of private defence extends to causing death are:

(1) Assault causing reasonable apprehension of death,

(2) Apprehension of Grievous Hurt,

(3)  Rape,

(4) Gratifying Unnatural Lust,

(5) Kidnapping or Abduction,

(6) Wrongful Confinement with reasonable apprehension that public authorities not possible,

 (7) Act or attempt of Administering.

If the offence is not of any of the abovementioned descriptions, the right of Private Defence of the body does not extend to causing death. As mentioned in Section101: When such right extends to causing any harm other than death[20].

SECTION102 AND SECTION 105: COMMENCEMENT AND CONTINUANCE OF THE RIGHT OF PRIVATE DEFENCE OF THE BODY AND PROPERTY.

The right commences as soon as a reasonable apprehension of harm arises, continuing until such danger exists[21]. Section 102 and 105 lay down the time from which a person is entitled to the right of private defence to the time it lapses. Law cannot allow a person to continue causing harm even when the situation has been averted. No right of private defence is provided where the apprehension is dead and moribund in nature[22]

SECTION103: WHEN THE RIGHT OF PRIVATE DEFENCE OF PROPERTY EXTENDS TO CAUSING DEATH[23]

The right to Private Defence of property extends to causing death in some offences by the offender as mentioned hereunder:

i)Robbery;

ii) House-breaking by nigh

iii)Mischief by fire on any building, tent or vessel where people reside, where there is custody of property[24].

iv) Theft, mischief, or house-trespass, in situations where the apprehension of death or grievous hurt arises[25].

In any other circumstances, the right of Private Defence of Property does not extend to causing death as mentioned in Section 104[26].

SECTION106: RIGHT OF PRIVATE DEFENCE AGAINST DEADLY ASSAULT WHEN THERE IS RISK OF HARM TO INNOCENT PERSON[27]

This section deals with the possibility of harm being caused to an incidental person, not directly but incidentally due to his presence. Such harm to an innocent person can only be caused when the assault is of a deadly nature, and the right to Private Defence cannot be exercised without causing harm to an innocent person[28]

CONCLUSION AND SUGGESTIONS

Right to Private Defence is basically the right of Self defence of a person. The State is vested with the fundamental duty of protecting the body and property of its citizens under Article 51(a)(i) of the Directive Principle of State Policy. However, it is obvious that the State cannot protect each individual and their property at all times. The State cannot deploy a police officer to watch over each and every individual and protect them from malefactors at all times. In situations where there is no time to get help from the State, The right of Private Defence has been granted to citizens not to be completely helpless.

The grant of Private Defense comes with certain restrictions, as imposed in Section 99, which ensures that this right is not misused to cause more harm than necessary or become a loophole to take Law into one’s own hands.

Since there is no formulaic definition of a situation where private defence arises, and it is impossible to state so either, the interpretation of whether Private Defense is exercisable depends on the judiciary. The term ‘deadly assault’ given in Section 106, which allows harm to be caused to an innocent person, is left to the interpretation and discretion of the courts as it has not been defined anywhere. Cases of private defence are highly circumstantial, and This puts the responsibility of ensuring justice onto the Courts as they need to examine the circumstances correctly and interpret the case meticulously to ensure that the intention of the statute is done justice to and the Provision of Right to Private Defence does not become a pawn in the hands of people to fulfil get to their malafide motives and aid in deliberately causing harm and menace in the society.  The purpose of this provision should be kept in mind, which is preventative and not punitive.

In cases of Private Defence, it should be scrutinized cautiously if the danger was so imminent that it required private defence exercise. The circumstances should be evaluated keeping in mind the interest of both the accused and the defender. The onus of preventing this right from becoming a pawn in the hands of people is vested only on the judiciary.

Private Defence makes people competent to try to avert danger, even then, so this should not be seen as a relief for public authorities. The responsibility of public authorities cannot be shifted to the people. Public authorities are supposed to protect the citizens and be available to avert any danger as much as possible[29].

Editors note The article is well written and it is less plagirised so it is good for the publication purpose


[1] Tushar sharma, Private defense under IPC, blog.ipleaders.in ( Aug, 5, 2021, 3:00 PM), https://blog.ipleaders.in/privathe-defence-under-ipc.

[2] LEXFORTI, http://lexforti.com/legal-news/wp-content/uploads/2020/05/MANAN-MONDAL-IPC-submission-2.pdf, (last visited Aug 7, 2021).

[3] Jai Dev v.  The State of Punjab, 1963 AIR 612.

[4] Tushar sharma, Private defense under IPC, blog.ipleaders.in ( Aug, 6, 2021, 9:00 PM), https://blog.ipleaders.in/privathe-defence-under-ipc.

[5] Agrawal, Yash, The Right of Private Defense in Indian Criminal Justice System, 3 SSRN 1, 11 ( 2020).

[6] Belinda Morrissey, WHEN WOMEN KILL: QUESTIONS OF AGENCY AND SUBJECTIVITY 73 (2003).

[7] George P. Fletcher, Basic Concepts of Criminal Law 135 (1998).

[8]  James Q. Whitman, Between Self-Defense and Vengeance/between Social Contract and Monopoly of Violence, 39 TULSA L. REV. 901, 902 (2004).

[9] Agrawal, Yash, The Right of Private Defense in Indian Criminal Justice System, 3 SSRN 1, 14 ( 2020).

[10] https://indiacode.nic.in/handle/123456789/2263?locale=en,(last visited on Aug 7, 2021).

[11]Jai Dev v.  The State of Punjab, 1963 AIR 612.

[12] Ratanlal & Dhirajlal, Indian Penal Code, 336 (Lexis Nexis 2020).

[13] https://indiacode.nic.in/handle/123456789/2263?locale=en,( last visited on Aug 7, 2021).

[14] Mohi Kumar, Private Defence: A Right Available To All People In India, legalserviceindia.com ( Aug 6, 2021, 9:00 PM), https://www.legalserviceindia.com/article/l470-Private-Defence.html

[15] https://indiacode.nic.in/handle/123456789/2263?locale=en,( last visited on Aug 7, 2021).

[16] Ibid

[17] Agrawal, Yash, The Right of Private Defense in Indian Criminal Justice System, 3 SSRN 1, 9 ( 2020).

[18] Law.uok, http://law.uok.edu.in/Files/5ce6c765-c013-446c-b6ac-b9de496f8751/Custom/THE%20RIGHT%20OF%20PRIVATE%20DEFENCE-1.pdf,(last visited Aug 7, 2021).

[19] https://indiacode.nic.in/handle/123456789/2263?locale=en,( last visited on Aug 7, 2021).

[20] https://indiacode.nic.in/handle/123456789/2263?locale=en,( last visited on Aug 7, 2021).

[21] Tushar sharma, Private defense under IPC, blog.ipleaders.in ( Aug, 5, 2021, 3:00 PM), https://blog.ipleaders.in/privathe-defence-under-ipc.

[22] Naveen Chandra v. State Of Uttranchal, 2007 CrLj 874 (SC)

[23] https://indiacode.nic.in/handle/123456789/2263?locale=en,( last visited on Aug 7, 2021).

[24] Mohi Kumar, Private Defence: A Right Available To All People In India, legalserviceindia.com ( Aug 6, 2021, 9:00 PM), https://www.legalserviceindia.com/article/l470-Private-Defence.html

[25] Ibid

[26] https://indiacode.nic.in/handle/123456789/2263?locale=en,( last visited on Aug 7, 2021).

[27] Ibit

[28] Simran, Right of Private Defence, Lawctopus (Aug 7, 9:00 PM).

[29] Alka Dahiya, Right to Private Defence: A Preventive Right or A Punitive Right, 4 GJRA 3, 3 (2015).

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