RIGHT TO PRIVATE DEFENSE IN INDIA

Written by: Jemy Mathew

INTRODUCTION

The right to live a dignified life, freedom and personal liberty is the basic foundation of human existence and their rights. No person shall be denied to live their choices, to possess property, and to protect themselves. In India, the protection of life and personal liberty is acknowledged as a fundamental right under Article 21 of part III of the Indian Constitution.[1] The state must protect all its citizens and the property they possess. But the state can’t protect each and everyone from dangerous circumstances. Here comes the importance of the phrase “private defense”. Private defense is the right to protect their own or other's life or property from immediate threat or danger where legal aid is not available in a particular situation. With this right, a citizen can take the law into his hands to protect under reasonable restrictions of the law. Self-preservation is considered a basic human instinct. This right is preventative, not retributive.

LEGAL PROVISIONS UNDER THE INDIAN PENAL CODE

Sections96 to 106 of the Indian Penal Code defines the laws related to the right to private defense of person and property. The provisions included in this section give the authority to any person to use necessary force subject to certain reasonable restrictions against the wrongdoer under sudden threat or violence. This can be considered as an excuse to escape from the legal liability in such acts.

Section 96 implies that acts or things, done in the exercise of private defense are not an offense. Even though it is not absolute but qualified under the restrictions provided by section 99 can be considered as private defense and hence will not be liable.[2]

Section 97 illustrates which are assured the protection of body and the property under right of private defense. Every person has the right to defend his own body, other's bodies, or against any offenses affecting the human body. It also gives the right to defend the movable or immovable property of his own, others, or against any offense that comes under the criteria of criminal trespass, robbery, theft, mischief or attempt to commit the said offenses.[3]

Section 98 deals with the acts of a person with an unsound mind and other criteria. An act that should be an offense is not an offense, because of youth, unsoundness of mind, the intoxication of the person during that act, or any kind of misconception on the part of that person, everyone has the right to private defense against the act which he would have if the act where that offense.[4]

Section 99 limits the right to private defense. There is no right of private defense against the act having no apprehension of death or grievous hurt done or attempted, by a public servant acting in good faith, by that act, may not be strictly defensible by law. We cannot seek the right of private defense in cases in with time to seek the protection of the public authorities.[5]

The right of private defense does not extend to the inflicting of more harm than it is crucial to inflict for the objective of self-defense.

The right of private defense of the body extends, to the voluntary causing of death or any other harm to the assailant, if the offense which occasions the exercise of the right is of any of the descriptions hereinafter enumerated such as:

1. An assault may cause the apprehension that death will be the result of such assault.

2. An assault that may cause the apprehension that grievous hurt will contrarily be the consequence.

3. Assault with the intent to commit rape.

4. An assault to gratifying unnatural lust.

5. An assault with the intent to kidnap or abduct.

6. An assault to wrongfully confine a person, under circumstances in which they are unable to have a resource to any legal aid provided by the public authorities for his release.

7. An act threatening with acid to be used, which will eventually cause the apprehension that grievous hurt will be the consequence of such act.[6]

Section 101 explains circumstances under which such rights extend to cause any other kind of harm rather than death.[7]

Section 102 tells that the right of private defense of the body commences as soon as a reasonable apprehension of danger to the body arises from an attempt or threat to commit the offense even though the offense has not occurred, and it continues as long as such apprehension of danger to the body continues.[8]

Section 103 explains that the right of private defense of property extends to the voluntary causing of death or any other harm to the wrongdoer, if the offense, the committing of which, or the attempting to commit which, occasions the exercise of the right, be an offense such as

1. Robbery

2. Housebreaking by night

3. Mischief by fire on the property is used as a place for the possession of property or as a residence.

4. House-trespass, theft, or mischief under circumstances, which may cause apprehension that death or grievous hurt will be the consequence if the right of private defense is not exercised.[9]

Section 106 prescribes if, in the exercise of the right of private defense against an assault which reasonably causes the apprehension of death, the defender be so situated that he cannot exercise that right without the danger to a person, his right of private defense extends to the running of that risk.[10]

CASE LAWS REGARDING PRIVATE DEFENSE

In Bhaja Pradhan v. the State of Orissa,[11] the accused had charged the deceased who had stolen a goat of the accused to recover his property. During the clash, the accused had struck the vital body parts of the deceased during the assault. Here, it was held that the accused had exceeded the right of private defense and was held liable.

In Jassa Singh V. State Of Haryana,[12] The Supreme Court held that the right of private defense of property will not extend to the causing of the death of the person who commits an act of trespass in respect of open land. Only a house-trespass committed under the circumstances as may cause death or grievous hurt is recognized as one of the offenses under Section 103.

CONCLUSION

"No ideological or political conviction would justify the sacrifice of human life. The value of life is absolute, with no concessions. It's not negotiable."

— Edgar Ramirez

No person can deny or neglect the importance of life and hence self-defense or private defense is universally accepted as a part of democracy." necessity knows no law" is associated with private defense. Necessity cannot be altered with rule of law. There are many restrictions provided by law mainly due to the misuse of this right. Sometimes people kill each other due to sudden rage, and to escape from the punishment they use this defense. For a better and peaceful society, we should coexist with harmony among the people. No one has the right to harm any person or their property with illegal intent. Now, it is difficult to differentiate between the act done in good faith or with criminal intent. We have the responsibility to protect ourselves and other's lives as we all are social beings.

[1]The Constitution of India [2]The Indian Penal Code, 1860(Act 45 of 1860) S. 96 [3] The Indian Penal Code, 1860 (Act 45 of 1860) S. 97 [4] The Indian Penal Code, 1860 (Act 45 of 1860) S. 98 [5] The Indian Penal Code, 1860 (Act 45 of 1860) S. 99 [6] The Indian Penal Code, 1860 (Act 45 of 1860) S. 100 [7] The Indian Penal Code, 1860 (Act 45 of 1860) S. 101 [8]The Indian Penal Code, 1860 (Act 45 of 1860) S. 102 [9] The Indian Penal Code, 1860 (Act 45 of 1860) S. 103 [10] The Indian Penal Code, 1860 (Act 45 of 1860) S. 106 [11]1976 Cri LJ 1347 [12]2002 Cri LJ 563(SC)