BNS Section 36 - Right Of Private Defence Against The Act Of A Person With Unsound Mind, etc.

BNS Section 36 of the Bharatiya Nyaya Sanhita, 2023 (BNS), is essential in specifying the ambit of the right to private defence. While BNS Section 34 delineates the overall right, and Section 35 separately lays out its ambit, BNS Section 36 aims to address a peculiar but important situation that arises when the aggressor is not legally culpable for his actions as a result of particular circumstances. This section provides clarity that a person's right to self-defence remains intact regardless of whether the person attacking them is a minor, of unsound mind, intoxicated, or proceeding on a genuine misapprehension of fact. Simply put, an individual can put forth his right to protect himself from wrongdoing conduct regardless of whether the person doing it can be made liable under law. BNS Section 36 is the direct equivalent and a restatement of the erstwhile Indian Penal Code (IPC) Section 98, thus upholding this fundamental legal entitlement.

In this article, you will get to read about:

• Simplified Explanation of BNS Section 36.
• Key Details.
• Practical Examples Illustrating BNS Section 36.

Simplified Explanation Of BNS Section 36

BNS Section 36 addresses situations where a person commits an act that would ordinarily be a criminal offense, but due to specific reasons, they themselves are not legally guilty of that offense. Despite the aggressor's lack of criminal liability, BNS Section 36 unequivocally states that the person being attacked still retains their full right to private defence.

The reasons for the aggressor's lack of criminal liability, as specified in the section, include:

• Youth (Age): If the aggressor is a child below the age of criminal responsibility (e.g., a child below 7 years as per BNS Section 20, or a child between 7 and 12 lacking sufficient maturity of understanding as per BNS Section 21).
• Want of Maturity of Understanding: This applies to children between 7 and 12 years who haven't attained sufficient maturity to judge the nature and consequences of their conduct.
• Mental Illness (previously "Unsoundness of Mind"): If the aggressor is suffering from a mental illness that prevents them from knowing the nature of their act, or that it is wrong or contrary to law (BNS Section 22).
• Intoxication: If the aggressor is in a state of involuntary intoxication, where they didn't know that what they were doing was wrong or unlawful (BNS Section 23).
• Misconception: If the aggressor is acting under a genuine and reasonable misconception of fact, believing their action to be lawful or harmless when it is not (BNS Section 24).

Key Details

Practical Examples Illustrating BNS Section 36

A few examples are:

Child Causing Grievous Hurt

A child of 6 years, who is below the age of criminal responsibility, picks up a stone and throws it at an adult, causing grievous hurt. While the child commits no offense due to their age (BNS Section 20), the adult has the right to use necessary force (e.g., blocking the stone, gently restraining the child without causing undue harm) to prevent themselves from being injured.

Misconception of Self-Defense

'R' genuinely believes, but mistakenly, that 'S' is about to launch a deadly attack on him. In this misconception, 'R' attacks 'S' in what he perceives as self-defense, causing harm. If 'R's' misconception is proven to be in good faith and reasonable, 'R' might not be guilty of an offense (BNS Section 24). However, 'S' has the right to defend themselves against 'R's' attack, as if 'R' were indeed a real threat.

Key Improvements And Changes: IPC Section 98 To BNS Section 36

BNS Section 36 is largely a verbatim reproduction of IPC Section 98, with one minor yet significant terminological update:

• "Unsoundness of mind" changed to "mental illness": The IPC used the term "unsoundness of mind." The BNS updates this to "mental illness," which is a more contemporary and medically appropriate term, reflecting modern understanding of mental health conditions. This is a positive change towards more sensitive and accurate legal terminology.

Other than this, the core principle, the list of reasons for an aggressor's non-liability (youth, want of maturity of understanding, intoxication, misconception), and the illustrations provided, remain identical. The cross-reference to the restrictions on private defence has also been updated from IPC Section 99 to BNS Section 37.

This continuity signifies the enduring validity and importance of this principle in Indian criminal jurisprudence. The legislature has affirmed that the right to private defence is inherent and applicable regardless of the aggressor's criminal culpability.

Conclusion

BNS Section 36, replacing IPC Section 98, is an important section that supports the right to private defence by expanding it to cover wrongful acts perpetrated by persons who may not have legal responsibility for their actions due to age, mental condition, intoxication, or a mistaken belief. It expresses the essential notion that the victim's right to seek safety and self-preservation outweighs the aggressor's innocence. Despite the minor change in terminology from "unsoundness of mind" to "mental illness," it represents a modern and compassionate approach to legal terminology.

This section provides that if the individual is subject to harm from a child, a person with a mental illness, or a person acting reasonably upon mistake, they have the same lawful right of defence as any other person, while being restricted by the requirements of BNS Section 37, provided the individual remains proportionate and necessary. The section symbolizes the commitment of the law to protect persons from real, imminent threats, regardless of the aggressor's culpability.

FAQs

A few FAQs are:

Q1 - Why was IPC Section 98 revised and replaced with BNS Section 36?

IPC Section 98 was replaced by BNS Section 36 as part of the broader overhaul of India's criminal laws with the introduction of the Bharatiya Nyaya Sanhita, 2023. The primary reason for the revision was to update and modernize the language (e.g., "mental illness" instead of "unsoundness of mind") and integrate it into the new code, while retaining the essential legal principle.

Q2 - What are the main differences between IPC Section 98 and BNS Section 36?

The main difference is the change in terminology from "unsoundness of mind" in IPC Section 98 to "mental illness" in BNS Section 36. Otherwise, the legal principle, the list of conditions (youth, want of maturity of understanding, intoxication, misconception), and the illustrations provided are identical. The section number has also changed from 98 to 36, and the cross-reference to the limitations section from 99 to 37.

Q3 - Is BNS Section 36 a bailable or non-bailable offence?

BNS Section 36 does not define an offense. Instead, it provides a general exception, clarifying that an act done in private defence against certain categories of persons (who are themselves not criminally liable) is not an offense. Therefore, the concepts of bailable or non-bailable do not apply directly to BNS Section 36.

Q4 - What is the punishment for an offence under BNS Section 36?

BNS Section 36 does not prescribe a punishment because it is an exception that states when an act is not an offense. If an act committed in purported private defence is found to exceed the limits allowed by law (e.g., disproportionate force), it would then constitute a separate offense under other sections of the BNS, and punishment would be prescribed accordingly.

Q5 - What is the fine imposed under BNS Section 36?

Similar to punishment, BNS Section 36 itself does not impose a fine. Fines would only be applicable if the act in question is found to be outside the scope of private defence and constitutes a punishable offense under other provisions of the BNS.

Q6 - Is the offense under BNS Section 36 cognizable or non-cognizable?

Again, BNS Section 36 does not define an offense. The cognizable or non-cognizable nature depends on the specific act committed if it is determined not to fall under the protection of private defence.

Q7 - What is the BNS Section 36 equivalent of IPC Section 98?

The BNS Section 36 equivalent of IPC Section 98 is BNS Section 36 itself. It directly replaces and re-enacts the same legal principle concerning the right of private defence against the acts of persons who are not criminally liable.