Right Of Private Defense

The primary rule in criminal law is Self-help. Every country should provide its citizens with the right of private defence to protect their life, liberty, and property. This right also brings with it numerous restrictions and limitations. Though the right of private defence was granted to the citizens as a weapon for self-defence but is often misused by people for their evil purposes. The terms 'Private Defence' and 'Self Defence' are synonymous to each other. Sections 96 to 106 of the Indian Penal Code (IPC) deal with the right of private defence of persons and property. This right is based on two principles:

• It is available against the aggressor only, and
• The right is available only when the defender entertains reasonable apprehension.

There are three tests for ascertaining reasonable apprehension; they are objective, subjective and expanded objective. The right of private defence serves social purpose and the right should be liberally construed. Such a right will not only be a restraining influence on bad characters but will also encourage manly spirit in a law-abiding citizen.

Key Conditions For Exercising The Right Of Private Defense

• Imminent Danger: The right only arises when there is an immediate and reasonable threat. A person cannot claim private defence against potential or distant danger.
• No Excessive Force: The force used in defence must be proportionate to the threat. For example, if someone is trying to steal a purse, the defender cannot shoot the thief dead unless there is a simultaneous threat to life.
• Absence of Retreat: Traditionally, there has been a debate on whether one must attempt to retreat before using force. Indian law does not mandate a duty to retreat. If a person is attacked, they do not have to flee and may stand their ground.
• Good Faith: The defender must act in good faith, believing that harm is imminent. This ensures that private defence is not used as an excuse for violence or revenge.

Extent And Limitations Of The Right To Private Defense

• There is no right of private defence against an act that is not considered a criminal offence according to the Indian Penal Code unless specified under exceptional circumstances.
• The right of private defence arises when there is a reasonable fear of endangering one’s body from attempting or threatening to commit a criminal act. It can only be used against imminent, present, and actual danger.
• The right of private defence is defensive in nature and not meant for punishment or retaliation. It does not extend to causing more harm than necessary for defence, although reasonable allowances should be made for a bona fide defender.
• The right applies to killing the actual assailant if there is a reasonable and immediate danger of the specific crimes listed in the six clauses of Section 100 of the IPC.
• A person facing imminent danger to life or severe injury has no obligation to retreat if there are no safe or reasonable means of escape except by causing the assailant’s death.
• The right of private defence, being a defensive right, does not arise and cannot be exercised when it is reasonable to seek the protection of public authorities.
• These provisions outline the framework for the right of private defence in the Indian Penal Code, specifying its scope, limitations, and the conditions under which it can be exercised.

People Also Read : What is Self Defense?

Right To Private Defense Provisions Under The IPC

The IPC dedicates a substantial portion to laying down the parameters for private defence. The relevant sections are 96 to 106, and they explain the scope and limitations of this right.

• Section 96: This section establishes that "Nothing is an offence which is done in the exercise of the right of private defence." In simple terms, it asserts that actions taken in self-defence are not illegal if done under justified circumstances.
• Section 97: This section outlines the subjects of private defence, i.e., what a person can defend:
  1. Defending one's body or the body of another person.
  2. Defending property, whether movable or immovable. This could include protection against theft, robbery, mischief, or criminal trespass.
• Section 98: Even if the assailant cannot be held criminally responsible (e.g., because of unsoundness of mind, intoxication, or being a minor), a person has the right to defend themselves against the harm caused by such an individual.
• Section 99: This section places limitations on the right of private defence. The right does not extend to acts committed by public servants performing their duty unless there is a clear danger of harm or the act is illegal. Additionally, the private defence cannot be used as a pretext for retaliatory violence once the danger has passed.
• Section 100: The right to cause death in private defence is permitted in extreme cases. These include:
  • An assault causing reasonable apprehension of death.
  • An assault causing reasonable apprehension of grievous hurt.
  • Assault with the intent to commit rape, gratify unnatural lust, kidnap, or confine a person wrongfully.
  • An attack intending to throw acid.
• Section 101: If the situation does not warrant causing death, a person exercising private defence can cause other forms of harm to the aggressor, subject to certain limits.
• Section 102: This section specifies when the right to private defence begins and ends. It begins when a reasonable apprehension of danger arises and continues until the threat ceases.

Private Defense Of Property

Section 103 and Section 104 of the IPC deal with the defence of property. They extend the right to cause death in private defence in situations like:

• Robbery.
• House-breaking by night.
• Mischief by fire to any building, tent, or vessel used as a place of human dwelling.
• Theft, mischief, or trespass, provided the defence is proportional to the offence.

If the attack on property does not reach the threshold for causing death, Section 104 allows for non-lethal force to be used.

Exceptions To The Right Of Private Defence 

1. When the person protecting themselves or others is the perpetrator or initiator of the attack. The right to private defence cannot be used to excuse the use of force in such instances.
2. When a person exercising their right to private defence goes beyond the scope of their defence and causes more damage or injury than is required to resist the attack. In such instances, the individual may be made liable for the damage done.
3. When a person exercising his or her right to private defence causes harm or injury to a third party who was not engaged in the assault, the person may be held liable for the harm caused to the third party.
4. When a person exercising their right to self-defence employs lethal force in a circumstance where it was not required to repel the assault, the person may be held liable for the use of excessive force.

Landmark cases related to right of private defense 

Sukumaran v. State Rep. by the Inspector of Police AIR 2019

The Supreme Court acquitted a Tamil Nadu forest ranger accused of killing a sandalwood smuggler. Initially sentenced to life for murder, the Madras High Court reduced it to five years. The ranger appealed, citing a threat to his life and that of his driver. The Court ruled that a reasonable apprehension of danger is sufficient to invoke self-defence, even without the actual commission of an offence. The ranger, suspecting the smuggler's illegal activity, was justified in pursuing him as part of his duty, with no personal motive involved.

Yogendra Morarji v. State AIR 1980 SC 660

The Supreme Court discussed in detail the extent and the limitations of the right of private defence of body. One of the aspects emphasised by the Court was that there must be no safe or reasonable mode of escape by retreat for the person confronted with an impending peril to life or of grave bodily harm except by inflicting death on the assailant. This view seems in contradiction to the principle that the law does not encourage cowardice on the part of one who is attacked. But another viewpoint is that this retreat theory in fact is an acceptance of the English common law principle of defence of body or property under which the common law courts always insisted on looking first as to whether the accused could prevent the commission of crime against him by retreating.

Nand Kishore Lal v. Emperor AIR 1924 Patna 789

Accused who were Sikhs, abducted a Muslim married woman and converted her to Sikhism. Nearly a year after the abduction, the relatives of the woman’s husband came and demanded that she return. The accused refused to comply and the woman herself expressly stated her unwillingness to rejoin her Muslim husband. Thereupon the husband’s relatives attempted to take her away by force. The accused resisted the attempt and in so doing one of them inflicted a blow on the head of the woman’s assailants, which resulted in the latter’s death. It was held that the right of the accused to defend the woman against her assailants extended under this section to the causing of death and they had, therefore, committed no offence.

Conclusion

The right to private defence remains a cornerstone of personal liberty and security in India. It reflects the balance between individual rights and the need for public order. While the law grants significant leeway to protect life, body, and property, it is not without its limitations. Individuals must exercise this right responsibly, ensuring that their actions are proportional and justified under the given circumstances. In conclusion, the right of private defence is essential, but it must be applied within the strict parameters of the law to prevent its abuse. Proper legal scrutiny ensures that this right serves as a tool for protection, not a shield for criminal behaviour.

About The Author

Adv. Kanchan Singh is a practicing lawyer at the Lucknow High Court with 12 years of experience. She specializes in a wide range of legal areas, including Civil Laws, Property Matters, Constitutional Law, Contractual Law, Company Law, Insurance Law, Banking Law, Criminal Law, Service Matters, and various others. In addition to her legal practice, she is also involved in drafting litigation briefs for diverse types of cases and is currently a research scholar.