The privilege of Right to Private Defence is available to every citizen of India. It is based on the principle that “necessity knows no law” and “it is the primary duty of a man to first help himself”. It is an inherent right of an individual that can be used for the protection against any bodily harm or harm against property, to the extends defined and regulated by the laws of the country.
The right of private defence is a right to protect one’s own or another’s person or property against the aggression of others. Sections 96-106 of the Indian Penal Code contains the provisions of the exception of Right to Private Defence. Section 96 says that nothing is an offence if it is done in the exercise of the right of private defence. While Section 97 is bestowed with the subject matter of private defence. It contains the right to secure the body and property of oneself and that of others who are under some imminent threat and danger and where the state cannot be readily available.
Right to Private Defence is Preventive and not Punitive
The right to self-preservation is perceived as it is a fundamental right of an individual to protect his body or property from the aggressor. The right to private defence being a protective right is preventive in nature and not punitive. It is not a privilege to express animosity or rebuff the actions of the aggressor. The Hon’ble Supreme Court laid that the right of private defence is a defensive right surrounded by the law and is available only when a person can justify his circumstances. It is available only under the necessity to defend the danger and not for self-creation.
The burden of proof lies upon the person pleading right to private defence, to prove that he had no sufficient means to reach the authorities before he practices his right to defend himself, another, or property against the aggressor. This right is available to all Indians irrespective of age, sex, health, status, etc subject to certain limitations contained in Section 99 of IPC to prevent the abuse of the right. The law states that the privilege of private defence is not available when there is an ideal opportunity to involve the authorities or if the act surpasses the end result to safeguard.
Scope of Right to Private Defence
Chapter IV (Sections 96-106) of IPC deals with the general exceptions available to the offenders. If an act done by a person can be justified under any of these sections, the accused is acquitted as he cannot be held liable unless a subjective fault can be attributed to him. Right to Private Defence is one of the most important general exceptions available to any and every individual. The privilege of right to private defence is practiced against the attacker.
The Supreme Court in the case of Darshan Singh v. State of Punjab held that only reasonable apprehension is enough and it is not necessary for the actual commission of the offence to give rise to the right of Private Defence. The right commences as soon as the apprehension arises and continues only till the time the apprehension exists. It also held that a right to defence does not include the right to launch an offence especially when there is no more a need to defend. The right has to be exercised in direct proportion to the extent of the aggression.
There must be a real and imminent necessity to act in a certain way and the right of private defence ceases the moment the aggressor becomes disabled or helpless.
Aggressor cannot avail the plea of Private Defence
In the case of Kishan V. Province of MP the court held that the aggressor is not qualified to plead the exception of Private Defence. It is well established that the right of private defence is a safeguard against any animosity towards a person or property when the authorities are not accessible.
The right of private defence is also not available in case of free fight when both the parties are willingly fighting each other. The exception of private defence cannot be availed by either of the parties.
Against whom can the defence be exercised
As per Section 97, the right to private defence is available against person and property only.
- Right against the body- as per the section, every person has the right to protect his own body and body of any other person against any imminent threat of danger, using reasonable force. There must be a real and apparent necessity to act in a certain manner and the right must not be used to justify an act of mere aggression.
- Right against property- along with the body, every person has a right to protect his property and that of others against any threat or danger. The right however can only be exercised against offences like theft, robbery, mischief, criminal trespass, and the person is under the threat of probable death or grievous hurt.
Every person has the right to defend his property against trespassers who enter one’s property without permission. However, if the trespasser has the possession of the property and the owner has the knowledge of the same, the right cannot be exercised.
To be able to exercise the right against the property, the trespasser must physically be on the property of the inflictor. The moment the trespasser is dispossessed or leaves the property, the right to defend such property also ceases.
Limitations of Right to Private Defence
Section 99 points out the various confinements for the privilege of Right to Private Defence. The three major confinements are-
- The defence is not available against any action of the public servant, a local official, or anyone acting in the discharge of his duty or good faith.
- The defence is not available when the person has enough time and favourable circumstances to reach out to authorities. The harm inflicted on any person must be in close proximity with the threat and danger imposed by such person.
- The accused must not utilize more power or force than necessary and must stop as soon as the threat is over.
When Right to Private Defence against the body extends to causing death
It is practically impossible to keep an eye or engage the protection of every individual at all times. This is when the Right to defend oneself and others come into play. It is perceived by the law that it is the duty of every individual to protect himself and his neighbors and his property and his neighbor’s when the state’s help is not accessible. The right must only be exercised when the circumstances legitimize and not otherwise. This right also extends to causing the death of the attacker, however only under the following seven cases-
- Such an assault as may sensibly cause the apprehension that demise will generally be the result of such attack;
- Such an assault as may sensibly cause the dread that intolerable hurt will generally be the outcome of such assault;
- An assault with the expectation of committing rape;
- An assault with the goal of satisfying an unnatural lust;
- An assault with the goal of kidnapping or abducting;
- An assault with the goal of improperly binding an individual, under conditions which may sensibly make him capture that he will not be able to have recourse to the public authorities for his discharge;
- An act of tossing acid or an attempt to toss or regulate acid attack which may sensibly cause the anxiety that grievous hurt will generally be the outcome of such an act.
The burden of proof is upon the denounced to demonstrate the presence of such circumstances as to justify his exercise of private defence.
The Right of Private Defence is the state’s way to ensure the safety of every individual of the country. The right is however surrounded by a number of restrictions imposed under Section 99 in order to prevent the abuse of the right. The state has given us a few rights to shield ourselves and our property from the looming risk when the state’s help isn’t available. The right extends to causing the death of the attacker in certain justifiable circumstances. Understanding the need and psychology of people, the right of private defence is recognized by almost all nations today.
(Author: Shivani Agrawal, pursuing LLB from Faculty of Law, University of Delhi.)