Scope and Limitations of the Right of Private Defence of Body
Relevant Law
Sections 35–40 of the Bharatiya Nyaya Sanhita (BNS) and Sections 97–102 of the Indian Penal Code (IPC) form the statutory framework for the right of private defence of body in Indian law.
Understanding Section 35 BNS (Corresponding to Section 97 IPC)
Section 35 BNS grants every person the right to defend not only their own body but also the body of any other individual, regardless of relationship or prior acquaintance. This inclusive provision strengthens the personal liberty protections envisioned by the Supreme Court of India and the broader Indian Judiciary.
Basis of the Right of Private Defence
The right is rooted in the principle that when 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. Indian law does not require a person to retreat when faced with unlawful aggression. The Indian Penal Code makes no provision compelling a person to run away instead of defending themselves lawfully.
Limitations on the Right: Sections 37(1) & 37(2) BNS
Section 37 (similar to Section 99 IPC) outlines exceptions where the right of private defence is not available:
- The harm inflicted must not be more than necessary for self-defence.
- The right does not justify excessive force.
How Much Force Can Be Used?
The Indian courts recognize that in high-stress situations, individuals cannot precisely calculate the extent of force required. The law does not expect perfect judgment in the heat of the moment.
Example: A person may be justified in using a spear to defend themselves if a lathi blow is aimed at a vital part like the head.
When Can the Right Be Exercised to Cause Death?
Under Section 38 BNS (corresponding to Section 100 IPC), the right to private defence extends to causing death in these seven scenarios:
- Apprehension of death
- Apprehension of grievous hurt
- Assault with intent to commit rape
- Assault with intent to gratify unnatural lust
- Assault with intent to kidnap or abduct
- Assault with intent to wrongfully confine where legal recourse is unavailable
- Acid attacks causing apprehension of grievous hurt
In all other cases, as per Section 39 BNS (corresponding to Section 101 IPC), the right only extends to causing harm, not death.
Degrees of Private Defence
Indian law recognizes two levels of private defence:
- First degree: Does not extend to causing death.
- Full measure: May extend to causing death in specific situations.
Both are subject to restrictions under Section 38 BNS.
Commencement of the Right of Private Defence
This right begins the moment there is a reasonable apprehension of danger, even before an actual offence is committed. The danger must be immediate and not remote.
Example: If a person reasonably fears being assaulted to stop them from farming a disputed plot, they may act in defence without waiting to be injured.
End of the Right of Private Defence
Once the danger ceases — for instance, after the aggressor is subdued and there’s no further threat — the right to private defence also ends.
The Cardinal Principle
The right of private defence is preventive, not punitive.
It is meant to stop unlawful aggression — not to punish the wrongdoer. Punishment is the prerogative of the State and the Indian Judiciary, not private individuals.
Conclusion
The right of private defence is a vital safeguard in Indian criminal law. For aspirants preparing for judicial services exams like the RJS and DJS, understanding its scope and limitations is essential.
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