Scope and Limitations of the Right of Private Defence of Body

Law Involved: Sections 35-40 BNS | Sections 97-102 IPC

According to Section 35 BNS (corresponding to Section 97 IPC), every person has the right of private defence of body — not only to protect their own body but also the body of any other person, whether related or not.

Basis of the Right of Private Defence

• This right rests on the principle that where a crime is attempted by force, it is lawful to repel that force in self-defence.

Is the Rule of Retreat Applicable in India?

No. Under Indian law, there is no obligation to retreat when faced with unlawful aggression. A person can directly exercise the right of private defence.

Exceptions under Section 37 BNS (Section 99 IPC)

• The right of private defence is not available in certain situations.
• It does not extend to inflicting more harm than necessary for defence.
• Harm must be proportionate to the threat faced.

Extent of Force Permitted

In moments of sudden aggression, individuals cannot be expected to measure their defensive action precisely. Courts recognise this human limitation.

Example: If an attacker aims a lathi blow at the head, the victim may be justified in using a spear to defend themselves.

When Private Defence Extends to Causing Death (Section 38 BNS / Section 100 IPC)

• Apprehension of death
• Apprehension of grievous hurt
• Intent to commit rape
• Intent to gratify unnatural lust
• Intent to kidnap or abduct
• Intent to wrongfully confine, preventing recourse to public authorities
• Throwing or administering acid causing apprehension of grievous hurt

In other situations, the right extends only to causing harm other than death (Section 39 BNS / Section 101 IPC).

Commencement of the Right

• Begins when there is reasonable apprehension of danger to the body.
• Applies even before the offence is committed, if danger is imminent.
• Does not require waiting until injury is sustained.

End of the Right

• Ends when the danger to the body ceases.
• Once the threat is neutralised, further force is not justified.

Cardinal Principle

The right of private defence is preventive and not punitive. It protects against unlawful aggression, but the power to punish rests solely with the State.