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Right of Private Defence

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The Right of Private Defence is not defined in the Bharatiya Nyaya Sanhita, 2023 (hereinafter referred to as “the BNS”); however, the relevant provisions of law dealing with the Right of Private Defence indicate that it is available against some offences that pose a threat to the human body or property. The duty to protect the life and property of the inhabitants primarily lies on the State, however, due to limited resources, no State can protect all the inhabitants in all situations, and therefore, the Right of Private Defence emerges from the limitation of resources paving the way thereby for a right of private individuals to take the law in their hands for their safety and protection. The right of private defence has been recognised in the BNS under Chapter III titled General Exceptions ranging from Sections 34 to 44.

Section 34 of the BNS provides immunity from punishment against an act which is done in the exercise of the right of private defence in general by declaring the said act not an offence.


Scope of Right of Private Defence (Section 35)

Every person has a right to defend:

BODY - His own body and the other person’s body against any offence affecting the human body.

PROPERTY - His own property or the other person’s property, movable/immovable, against an offence falling under the definition of theft, robbery, mischief or criminal trespass or an attempt to commit such offence. 

However, unnecessary harm can not be inflicted for the purpose of defence. Further, this right can only be exercised to defend the human body and cannot be extended to defend the body of an animal.

This right does not extend to the act which is not an offence within the definition of the abovementioned offences. Section 35 clearly envisages the right of private defence to be exercised only against certain offences and not otherwise, however, there may be some acts which are not considered to be offences within the scope of BNS or any other law time being in force but pose a threat to the safety of the human body and property. This anomaly has been dealt with under Section 36 of the BNS which says:

Every person shall have the right of private defence against an act which is not an offence by reason of the youth(S20), the want of maturity of understanding(S21), the unsoundness of mind(S22), the intoxication(Ss23&24) or misconception(Ss14&17). This provision recognizes the fact that the right of private defence is available against the act and not the person who’s committing it and merely because a person is legally incompetent to commit an offence, the right of private defence can not be taken away as long as the act of the said person is still posing a threat to the safety of human body and property.


However, the scope of the right of private defence as mentioned above is subject to certain restrictions which are enumerated in Section 37.


Exceptions and Limitations (Section 37)

No right of private defence is available against an act or attempt by a public servant or his direction if;

a.) He(public servant) is acting in good faith; and

b.) Under the colour of his office; and

c.) No reasonable apprehension of death/grievous hurt; and

d.) The said act is not required to be strictly justifiable by law


This exception shall only be applicable when:

There is knowledge/reason to believe that the person doing the act/attempt is indeed a public servant

There is knowledge/reason to believe that the person doing the act/attempt is acting by the direction of a public servant or he states his authority or if he has the authority in writing he produces the same, if demanded.


This section further provides that if there is time to have recourse to the protection of the public authorities, no right of private defence shall be available as already mentioned the right of private defence emerges from the limitation of the State’s resources, and therefore, when the public authorities may be approached for protection, no right of private defence survives.


Right of Private Defence to Cause Death (Ss 38,39, 41 & 42)

The right of private defence extends to the voluntary causing of death in the following cases:

BODY(S38)

a.) An assault causing reasonable apprehension of death;

(in this case, if the right of private defence can not be exercised effectually without risk of harm to an innocent person, the said risk may be taken) (S44)

b.) An assault causing reasonable apprehension of grievous hurt;

c.) An assault with the intention of committing rape;

d.) An assault with the intention of gratifying unnatural lust;

e.) An assault with the intention of kidnapping/abducting;

f.) An assault with the intention of wrongfully confining a person causing reasonable apprehension to have no recourse to the public authorities;

g.) An act/attempt of throwing/administering acid causing reasonable apprehension of grievous hurt

If the offence does not fall within any of the descriptions mentioned above, the right of private defence may be exercised to voluntarily cause any other harm subject to other requirements. (S39)


If the death is caused by a person exceeding the power given to him by law to exercise the right of private defence, he shall be guilty of culpable homicide not amounting to murder if he acted; 

In good faith;

Without premeditation;

Without any intention of causing unnecessary harm.  (Exception 2 to S101)


PROPERTY(S41)

a.) Robbery (includes decoity also);

b.) House-breaking (after sunset and before sunrise)

c.) Mischief by fire/explosive substance on any building/tent/vessel used as a human dwelling/place for custody of property;

d.) Theft/mischief/house-trespass causing reasonable apprehension of death/grievous hurt.

If the offence of theft/mischief/criminal trespass does not fall within any of the descriptions mentioned above, the right of private defence may be exercised to voluntarily cause any other harm subject to other requirements. (S42) 


Commencement/Continuance of Right of Private Defence

BODY(S40)

Commencement - as soon as a reasonable apprehension of danger to the body arises from an attempt/threat to commit the offence (commission of offence is not required)

Continuance - as long as such apprehension of danger to the body continues.

PROPERTY(S43)

Commencement - when a reasonable apprehension of danger to the property commences 

Continuance - 

Against theft - till the offender has effected his retreat with the property/ assistance of public authorities is obtained/ property has been recovered

Against robbery - as long as the offender causes/attempts to cause death/hurt/wrongful restraint or fear of instant death/hurt/personal restraint continues

Against criminal trespass/mischief - as long as the offender continues in the commission of criminal trespass/mischief 

Against house-breaking (after sunset before sunrise) - as long as the house-trespass (consequent to such house-breaking) continues. 
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