BNS Section 39 - When Such Right Extends To Causing Any Harm Other Than Death

India's revised code of criminal law, the Bharatiya Nyaya Sanhita (BNS), has retained the basic right of private defence. Section 39 of the BNS specifically concerns situations where a person bodily defends himself against an aggressor by injuring them (but not fatally). This provision is intended for scenarios involving serious threats to physical integrity but which are not serious enough to warrant liability for causing death by excessive force. Because individuals will be able to rage against their aggressors without fear of being charged with an offence for reasonable and proportional force, section 39 is an essential legal safe harbour. Section 39 is, therefore, a significant legal safe space confirming that individual safety is preserved without unlawful excess. It provides a person with the opportunity to act in self-defence and acknowledges that there is an imminent threat of physical danger, that the assault must be responded to reasonably-or adequately, whenever there is a need for self-defence. BNS Section 39 replaces IPC Section 101, the right to self-defence, within the BNS without abolishing the right in the new code of criminal law. The continuity of BNS Section 39 from IPC Section 101 serves the principle of lawful self-protection within India's contemporary justice apparatus.

In this article, you will get to read about:

• Simplified Explanation Of BNS Section 39.
• Key Details.
• Practical Examples Illustrating BNS Section 39.

Legal Provision

Section 39 of the BNS ‘When such right extends to causing any harm other than death’ states:

If the offence be not of any of the descriptions specfied in section 38, the right of private defence of the body does not extend to the voluntary causing of death to the assailant, but does extend, under the restrictions specified in section 37, to the voluntary causing to the assailant of any harm other than death.

Simplified Explanation Of BNS Section 39

BNS Section 39 essentially states that if the attack you are facing is not severe enough to cause reasonable apprehension of death or grievous hurt (the specific types of attacks listed in BNS Section 38), then your right to private defence of the body allows you to cause any harm to the assailant other than death. This means you can use force to disable, repel, or stop the attacker, but you must not intentionally kill them.

The section operates under the "restrictions specified in Section 37" of the BNS (which is the equivalent of IPC Section 99). These restrictions are crucial and emphasize that:

1. No more harm than necessary: The force used must not exceed what is necessary for self-defence.
2. No right if public authorities can be sought: There is no right of private defence if there is time to seek the protection of public authorities (e.g., police).
3. No right against acts of public servants: The right does not extend to acts done by a public servant acting in good faith under color of office, unless there is a reasonable apprehension of death or grievous hurt.
4. No right against acts done under direction of public servant: Similar to the above, if the person knows or has reason to believe that the act is being done under the direction of a public servant.

Key Details

Practical Examples Illustrating BNS Section 39

A few examples are:

Simple Assault with Fists

A person punches you repeatedly without any clear intent to cause serious injury or death. You move them by the arms to push them back and they fall and receive a minor injury (like a bruise or a sprain). The initial assault (simple assault) does not fall under section 38. Your conduct in pushing them; resulting in a minor injury, would most likely be justified under section 39, as you harmed the assailant other than death, in proportion to the threat, and to stop the attack.

Theft Attempt with Minor Force

Somebody attempts to grab your bag and, in the process, pushes you and makes you stumble. You hit their arm with your umbrella in a way to make them drop your bag and they fracture their wrist. A fractured wrist is grievous bodily injury. However, if the thief's initial act does not involve the apprehension of grievous bodily injury or death (BNS Section 38) then your action to recover your property and defend yourself causing a lesser harm than death or grievous bodily harm to the attacker may have a chance to be justified under Section 39 as long as the force was the minimum force necessary to protect yourself and reasonably proportionate.

Blocking an Escape

A person tries to run off after committing a (possibly) minor assault. You grab the person to prevent their escape, and in the tussle, he falls and suffers minor scrapes. This means probably section 39, the intention was to prevent further harm or escape, and the harm the person caused was proportionate.

Verbal Threat Escalating to Push

You are verbally assaulted and then suddenly shoved, and as a result of this shove you are made unbalanced. You respond immediately by shoving them back, and they fall over. If your push was not serious enough to cause fear of serious hurt, your defensive action causing minor injury to the attacker would be protected under Section 39.

Key Improvements And Changes: IPC Section 101 To BNS Section 39

While BNS Section 39 is largely a re-enactment of IPC Section 101, reflecting the principle of continuity in the law of private defence, the shift from the IPC to the BNS is part of a larger legislative reform aimed at modernizing and streamlining India's criminal justice system.

Clarity in Language

The BNS aims to use more contemporary and simpler language where possible, though in sections like 39 (and its predecessor 101), the legal phrasing remains largely similar due to the precise nature of legal definitions. The subtle changes are often about ensuring consistency with the overall structure and terminology of the new code.

Re-numbering and Structural Reorganization

The most apparent change is the re-numbering of the section. What was Section 101 in the IPC is now Section 39 in the BNS. This is part of the broader re-arrangement of provisions within the new Sanhita, which aims to provide a more logical flow and grouping of related offences and general exceptions. For instance, the general exceptions now appear earlier in the code.

Modernization and Digitization Focus (Indirect Impact)

While Section 39 itself doesn't introduce substantive changes to the concept of private defence, the BNS as a whole incorporates provisions for digital evidence, online FIRs, and time-bound investigations. These procedural changes (under the Bharatiya Nagarik Suraksha Sanhita - BNSS and Bharatiya Sakshya Adhiniyam - BSA) indirectly impact how cases involving private defence claims might be investigated and proven, by allowing for more efficient evidence collection and faster trials.

Consistency with New Offences/Definitions (Minor Contextual Changes)

The BNS introduces new offenses and redefines some existing ones. While Section 39 deals with general principles of private defence, its application might implicitly be influenced by the expanded or re-categorized offences under the new code, although the core test of "reasonable apprehension" remains.

Emphasis on Proportionality (Reinforcement)

The spirit of proportionality in self-defence, already a cornerstone of IPC, is carried forward with renewed emphasis in BNS. The wording ensures that the force used is strictly limited to preventing the harm, without overstepping into retaliatory or excessive violence.

Conclusion

BNS Section 39 is critically important as it offers a firm and clear delineation of the boundaries of the right of private defence of the body in India. In relation to BNS Section 38, it represents a opposite position by by making it clear that situations in which the death of the attacker occurs is not justifiable. Although it allows for the infliction of "any harm other than death", merely, and subject to the restriction of necessity and proportionality set out in BNS Section 37, the actual law in fact finds itself finely balanced.

The current law legitimizes persons doing harm from an attacker, but does so with an expectation that the person harmed does not cause excessive harm, or harm that is disproportionate to the threat that they actually faced.

FAQs

A few FAQs are:

Q1. Why was IPC Section 101 revised and replaced with BNS Section 39?

IPC Section 101 was not substantively revised. The enactment of the Bharatiya Nyaya Sanhita (BNS) is a comprehensive overhaul of India's criminal laws, replacing the IPC. As part of this process, existing provisions have been re-codified and renumbered. BNS Section 39 is simply the new designation for the same legal principle previously articulated in IPC Section 101, with updated references to the corresponding sections within the BNS.

Q2. What are the main differences between IPC Section 101 and BNS Section 39?

There are no substantive differences in the wording or the core legal principle between IPC Section 101 and BNS Section 39. Both sections contain the exact same text, with the only change being the renumbering of the sections and their cross-references within the new BNS framework (e.g., IPC Section 100 becomes BNS Section 38, IPC Section 99 becomes BNS Section 37).

Q3. Is BNS Section 39 a bailable or non-bailable offense?

BNS Section 39 does not define an offense. Instead, it defines an exception to criminal liability for certain acts done in self-defence. Therefore, the question of bailability or non-bailability does not apply directly to this section. The bailability of any act would depend on its classification as an offense under other sections of the BNS, and whether that act would be excused by Section 39 would be a matter of defence.

Q4. What is the punishment for offense under BNS Section 39?

BNS Section 39 does not prescribe a punishment because it is a defence provision, not an offense-defining one. If a person's actions fall within the scope of this section (i.e., they were exercising their right of private defence as defined), they are deemed to have committed "no offense" and would not be liable for punishment for the harm caused to the assailant.

Q5. What is the fine imposed under BNS Section 39?

No fine is imposed under BNS Section 39 as it is a defence provision, not an offense.

Q6. Is the offense under BNS Section 39 cognizable or non-cognizable?

BNS Section 39 does not describe an offense, so the question of its cognizability or non-cognizability does not arise. These terms apply to specific offenses defined elsewhere in the BNS and the Bharatiya Nagarik Suraksha Sanhita (BNSS), the new procedural code.

Q7. What is the BNS Section 39 equivalent of IPC Section 101?

BNS Section 39 is the direct and exact equivalent of IPC Section 101. They articulate the same principle regarding the right of private defence of the body not extending to causing death, but allowing for other harm, subject to general restrictions.