BNS Section 38 - When The Right Of Private Defence Of The Body Extends To Causing Death

BNS Section 38 from the Bharatiya Nyaya Sanhita, 2023 (BNS), is possibly one of the most important provisions relating to a right of private defence. While BNS Sections 34, 35, and 36 explain and articulate the existence and scope of the right, and BNS Section 37 indicates the limitations of the right of private defence, BNS Section 38 specifically concerns the most exceptional situation where the right of private defence of the body may extend to voluntarily causing the death of the assailant. This section is very important, as it addresses and provides a legal justification for the loss of life when there is an imminent and grievous threat to one's own or to another's life. BNS Section 38 indicates that an individual should not be expected to unreasonably tolerate extreme peril in very abusive circumstances. Therefore, BNS Section 38 represents the direct counterpart and a restatement of the previous Indian Penal Code (IPC), Section 100, maintaining an important continuity in this very basic essential point of self-preservation.

In this article, you will get to read about:

• Simplified Explanation Of BNS Section 38.
• Key Details.
• Practical Examples Illustrating BNS Section 38.

Legal Provision

Section 38 of the BNS ‘When the right of private defence of the body extends to causing death’ states:

The right of private defence of the body extends, under the restrictions specified in section 37, to the voluntary causing of death or of any other harm to the assailant, if the offence which occasions the exercise of the right be of any of the descriptions hereinafter enumerated, namely:

1. such an assault as may reasonably cause the apprehension that death will otherwise be the consequence of such assault;
2. such an assault as may reasonably cause the apprehension that grievous hurt will otherwise be the consequence of such assault;
3. an assault with the intention of committing rape;
4. an assault with the intention of gratifying unnatural lust;
5. an assault with the intention of kidnapping or abducting;
6. an assault with the intention of wrongfully confining a person, under circumstances which may reasonably cause him to apprehend that he will be unable to have recourse to the public authorities for his release;
7. an act of throwing or administering acid or an attempt to throw or administer acid which may reasonably cause the apprehension that grievous hurt will otherwise be the consequence of such act.

Simplified Explanation Of BNS Section 38

BNS Section 38 outlines specific, grave situations where an individual, facing an attack, is legally permitted to use force that results in the death of the aggressor. This right is always exercised "under the restrictions specified in section 37," meaning the force used must still be proportionate and necessary, and the right does not exist if there's time to seek public authorities' help.

The section enumerates the following types of assaults where causing the death of the assailant is justified:

1. Reasonable Apprehension of Death: If the assault is such that it reasonably causes the person to fear that their death will be the consequence unless they defend themselves. This is the most direct and severe threat.
2. Reasonable Apprehension of Grievous Hurt: If the assault reasonably causes the person to fear that grievous hurt (severe injury, as defined in BNS Section 121, equivalent to IPC Section 320) will otherwise be the consequence. This includes injuries like permanent privation of the sight of either eye, permanent privation of the hearing of either ear, privation of any member or joint, destruction or permanent impairing of the powers of any member or joint, permanent disfiguration of the head or face, fracture or dislocation of a bone or tooth, or any hurt which endangers life or causes severe bodily pain for 20 days or more.
3. Assault with Intention of Committing Rape: An assault committed with the clear intent to commit sexual assault (rape).
4. Assault with Intention of Gratifying Unnatural Lust: An assault with the intent to commit sexual acts against the order of nature.
5. Assault with Intention of Kidnapping or Abducting: An assault committed with the intent to unlawfully take away or carry off a person.
6. Assault with Intention of Wrongfully Confining a Person (without Recourse to Public Authorities): An assault with the intent to wrongfully confine someone under circumstances where they reasonably apprehend that they will be unable to get help from public authorities for their release. This implies a confinement that could lead to prolonged isolation or harm.
7. Act of Throwing or Administering Acid (or Attempt): Any act of throwing or administering acid, or attempting to do so, which may reasonably cause the apprehension that grievous hurt will otherwise be the consequence. This specific inclusion highlights the severe nature and common threat posed by acid attacks.

Key Details

Practical Examples Illustrating BNS Section 38

A few examples are:

Reasonable Apprehension of Death

A notorious criminal, armed with a loaded pistol, ambushes you in an isolated alley, points the gun directly at your head, and threatens to shoot if you don't comply. You, a trained martial artist, manage to disarm the assailant, and in the struggle, your hand is still on the gun. The assailant lunges back, trying to regain control of the weapon, making you reasonably believe he will use it to kill you. In that instant, you pull the trigger, fatally wounding him.

Your act would likely be justified under BNS Section 38 (first clause). The assailant's actions (armed ambush, direct threat to life, attempt to regain weapon) created a reasonable apprehension that death would be the consequence if you did not act to defend yourself.

Assault with Intention of Committing Rape

A person is walking home late at night and is suddenly pulled into an unlit secluded area by an unknown assailant. The assailant begins to forcibly remove their clothing and makes explicit threats, leaving no doubt about their intention to commit rape. Fearing for their life and dignity, the victim manages to find a sharp object nearby and, in a struggle, fatally injures the assailant.

BNS Section 38 (third clause) would apply. The assailant's actions clearly indicate the intention to commit rape, which is a grave offense justifying the use of lethal force in self-defence.

Key Improvements And Changes: IPC Section 100 To BNS Section 38

The transition from IPC Section 100 to BNS Section 38 is largely one of re-enactment and modernization, with one significant, explicit addition. While the core essence and enumerated categories remain identical, the BNS aims for clarity and addresses contemporary concerns.

Here's a breakdown of the key aspects:

Retention of Core Principles

The most significant "change" is the retention of the entire substance of IPC Section 100. All six original categories where the right of private defence extends to causing death have been meticulously carried forward into BNS Section 38. This indicates that the fundamental principles governing the use of lethal force in self-defence have been deemed sound and continue to be relevant in the modern Indian legal framework.

IPC Section 100 (Clauses 1-6) are identical to BNS Section 38 (Clauses 1-6).

Explicit Inclusion of Acid Attack (Seventh Clause)

This is the most prominent and crucial improvement. IPC Section 100 had only six clauses. The Bharatiya Nyaya Sanhita has explicitly added a seventh clause to BNS Section 38:

"an act of throwing or administering acid or an attempt to throw or administer acid which may reasonably cause the apprehension that grievous hurt will otherwise be the consequence of such act."

Significance

While courts might have interpreted acid attacks under "grievous hurt" (clause 2) in the past, this explicit inclusion removes any ambiguity and highlights the legislative intent to specifically address the heinous nature and devastating impact of acid attacks. It unequivocally grants the victim of an acid attack (or attempted attack causing apprehension of grievous hurt) the right to use lethal force in self-defence. This addition reflects a progressive and empathetic approach to recent societal concerns and a clear legislative response to a specific form of brutal violence.

Modernization of Language (Subtle)

While the text is largely preserved, the overall framing within the BNS aims for clearer, more contemporary legal language, although in this specific section, the changes are minimal. The restructuring of the entire criminal code intends to make laws more accessible and understandable.

Sequential Re-numbering

IPC Section 100 becomes BNS Section 38. This is part of the systematic re-numbering of all sections across the new criminal laws (BNS, BNSS, BSA). This change primarily affects referencing rather than substance for this particular section.

Contextual Shift

The BNS is a comprehensive overhaul designed to replace colonial-era laws with a more "citizen-centric" and modern legal framework. Therefore, BNS Section 38 operates within this new, broader context of the BNS, which introduces other changes in procedure, evidence, and sentencing, potentially influencing how this defence is applied and interpreted in practice.

Conclusion

BNS Section 38, the successor to IPC Section 100, unequivocally clarifies and strengthens the legal framework for the right of private defence of the body in India. It serves as a crucial safeguard, empowering individuals to use lethal force when confronted with threats that reasonably cause apprehension of death, grievous hurt, rape, unnatural lust, kidnapping/abduction, wrongful confinement without recourse to public authorities, or devastating acid attacks. This section is not a carte blanche for violence but a carefully delineated right, always subject to the principle of proportionality and the availability of state intervention. Its significance lies in its recognition of the inherent human right to self-preservation, particularly in situations where immediate and severe harm is imminent. The explicit inclusion of acid attacks within its ambit is a commendable and forward-looking amendment, reflecting society's growing awareness and intolerance for such heinous crimes.

FAQs

A few FAQs are:

Q1 - Why was IPC Section 100 revised and replaced with BNS Section 38?

IPC Section 100 was revised and replaced with BNS Section 38 as part of a larger legislative exercise to replace the colonial-era Indian Penal Code, 1860, with new, modernized criminal laws. The Bharatiya Nyaya Sanhita, 2023 (BNS), aims to update the legal framework, streamline provisions, incorporate new offenses, and address contemporary societal concerns. While the core principle of self-defence remained valid, the revision allowed for clarity, re-numbering, and specific additions like the acid attack clause to reflect current realities.

Q2 - What are the main differences between IPC Section 100 and BNS Section 38?

The main difference is the addition of a seventh clause in BNS Section 38 which explicitly includes "an act of throwing or administering acid or an attempt to throw or administer acid which may reasonably cause the apprehension that grievous hurt will otherwise be the consequence of such act." All other six clauses of IPC Section 100 are identically reproduced in BNS Section 38. The change is primarily an explicit expansion, not a fundamental alteration of the existing principles.

Q3 - Is BNS Section 38 a bailable or non-bailable offense?

BNS Section 38 is not an offense itself, but a defence. Therefore, the terms "bailable" or "non-bailable" do not apply to it. These terms apply to the offences committed by the assailant (e.g., assault, attempt to murder, rape) against which the right of private defence is exercised. If a person exercises their right under BNS Section 38, they are asserting a defence against a charge of an offense (like causing death or hurt). If the defence is proven, they are not held liable for that offense.

Q4 - What is the punishment for offense under BNS Section 38?

There is no punishment for actions justified under BNS Section 38, because exercising this right means the act of causing death or harm is not considered an offense. If the court finds that the act was legitimately committed in the exercise of the right of private defence under the conditions of BNS Section 38, the accused person is acquitted and faces no punishment.

Q5 - What is the fine imposed under BNS Section 38?

Similar to punishment, no fine is imposed under BNS Section 38 as it is a defence, not an offense. The concept of fines applies to convicted offenders of specific crimes.

Q6 - Is the offense under BNS Section 38 cognizable or non-cognizable?

Again, BNS Section 38 defines a defence, not an offense. Therefore, the terms "cognizable" or "non-cognizable" do not apply to it. These terms relate to the power of the police to arrest without a warrant (cognizable) or with a warrant (non-cognizable) for actual crimes. However, the offences committed by the assailant, against which the right of private defence is used, are often cognizable offenses (e.g., murder, grievous hurt, rape).

Q7 - What is the BNS Section 38 equivalent of IPC Section 100?

BNS Section 38 is the direct equivalent of IPC Section 100. It retains the same conditions for the exercise of the right of private defence of the body extending to causing death, with the specific addition of the acid attack clause.