Indian criminal law grants a right of private defence of body to every person. The exact provisions of substantive law, that is, the Bharatiya Nyaya Sanhita (BNS), granting this right are reproduced below:

Section 34 BNS

• Nothing is an offence
  • which is done in exercise of right of private defence

Section 35 BNS

• Subject to certain restrictions
• Every person has a right to defend
  • his ownbody
  • body of any other person
• against any offence affecting human body

Basis of the right of private defence

• This right rests on the general principle that where a crime is endeavoured to be committed by force, it is lawful to repel that force in self-defence

Scope of the right of private defence

• Section 35 BNS recognises the right of a person not only to defend his own or another’s body but to defend his own or another’s property even against an attempt to inflict any offensive act as against the property.

Rule of retreat

• It is now well settled that the rule of retreat which common law courts espoused is not relevant under the BNS. In India there is no rule which expects a man to run away when confronted with a situation where he can exercise his right of private defence.

Legal provision: Section 37(1) BNS

(a)

• There is no right of private defence against an act
  • which does not reasonably cause apprehension of death or grievous hurt
• if done by a public servant
  • acting in good faith under colour of his office
  • though that act may not be strictly justifiable by law

(b)

• There is no right of private defence against an act
  • which does not reasonably cause apprehension of death or grievous hurt
• if done by directionof a public servant
  • acting in good faith under colour of his office
  • though that direction may not be strictly justifiable by law

(c)

• There is no right of private defence
  • where there is time to have recourse
  • to protection of public authorities

Extent of right of private defence

Legal provision:  Section 37(2) BNS

• Right of private defence does not extend
  • to inflicting more harm than necessary
  • for purpose of defence

ANALYSIS

How much force can be used to repel an assault or aggression? How to decide   whether the force used was excessive?

• In moments of excitement or disturbed mental equilibrium it is somewhat difficult to expect parties facing grave aggression to coolly weigh, as if in golden scales, and calmly determine with a composed mind as to what precise kind and severity of blow would be legally sufficient for effectively meeting the unlawful aggression.
• At such moments an average human being cannot be expected to think calmly and control his action by weighing as to how much injury would sufficiently meet the aggressive designs of his opponent.
• In such cases the matter cannot be weighed in scales of gold.
• Example: When a blow of a lathi is aimed at a vulnerable part like the head, it cannot be laid down as a sound proposition of law that in such cases the victim is not justified in using his spear in defending himself.

Legal provision: Section 38 BNS:

Right of private defence of body extends to voluntary causing of death in the following situations:

• assault that causes apprehension of death
• assault that causes apprehension of grievous hurt
• assault with intention of committing rape
• assault with intention of gratifying unnatural lust
• assault with intention of kidnapping or abducting
• assault with intention of wrongfully confining a person, where he has reasonable apprehension that he will be unable to have recourse to public authorities for his release
• throwing or administering acid that causes apprehension of grievous hurt

In all other cases the right of private defence of body does not extend to causing death. However it does extend to voluntary causing to the assailant any harm other than death.

ANALYSIS:

The Sanhita envisages two measures of right of private defence.

• One is the first degree which shall not reach up to causing of death of the wrongdoer. The other is the full measure which may go up to causing death.
• Both measures are, however, subjected to the restrictions enumerated in Section 37.

Commencement and continuance of the right private defence of body:

Legal provision: Section 40

• Right of private defence of body commences
  • as soon as reasonable apprehension of danger to body arises
• from an attempt or threat to commit the offence
  • though the offence may not have been committed
• It continues
  • as long as apprehension of danger to body continues

ANALYSIS:

When does the right of private defence of the body commence?

• The right of private defence of the body commences as soon as a reasonable apprehension of danger to the body arises from an attempt or threat to commit the offence, though the offence may not have been committed, and such right continues so long as such apprehension of danger to the body continues.
• The threat, however, must reasonably give rise topresent and imminent danger, and not remote or distant danger.
• To say that a person could claim the right to use force only after he had sustained a serious injury by an aggressive wrongful assault is a complete misunderstanding of the law embodied in the above section.
• Example: As soon as the appellant reasonably apprehended danger to his body even from a real threat on the part of the party of the complainant to assault him for the purpose of forcibly taking possession of the plots in dispute or of obstructing their cultivation, he got the right of private defence and to use adequate force against the wrongful aggressor in exercise of that right.

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

• If after sustaining a serious injury there is no apprehension of further danger to the body, then, the right of private defence would not be available.

One needs to be careful in exercising the right of private defence of body. It should always be kept in mind that the right of private defence is preventive and not punitive.

• The right of private defence is available for protection against apprehended unlawful aggression and not for punishing the aggressor for the offence committed by him. It is a preventive and not a punitive right.
• The right to punish for commission of offences vests in the State (which has a duty to maintain law and order) and not in private individuals.