Right of private defence under the Bharatiya Nyaya Sanhita

Law has been really generous for giving us the right of private defense. On one hand, the law suggests that we cannot do any wrong. We cannot kill someone. But on the other hand, the law suggests that if that other person is trying to kill you or if someone is trying to harm you, then whatever you do to defend yourself for that particular act alone, you will not be held guilty. Therefore, any act done so as to protect yourself and you did so as to defend yourself, for that particular act you wont be held guilty and that would be covered under this act.

Please note: The Indian Penal Code (IPC) was repealed on 1 July 2024 and replaced by the Bharatiya Nyaya Sanhita (BNS), 2023. The right of private defence is now found in Sections 34 to 44 of the BNS (formerly Sections 96 to 106 IPC). The old IPC section numbers are given alongside the new ones below for ease of reference, and the underlying principles are substantially the same.

The right of private defence is now covered from Section 34 to Section 44 of the BNS, 2023 (formerly Sections 96 to 106 IPC). Section 34 (formerly Section 96 IPC) clearly states that nothing is an offence which is done in the exercise of the right of private defence. So if you do an act in order to defend yourself, nothing done in that exercise is treated as an offence. You must keep in mind that this right is available only when there is a reasonable apprehension of receiving an injury.

Section 35 (formerly Section 97 IPC) says that every person has a right to defend his own body, or the body of another person, and the property (whether movable or immovable) of himself or of any other person. A person may defend property against an act which is an offence falling under the definition of theft, robbery, mischief or criminal trespass, or even an attempt to commit any of these.

Next, Section 36 (formerly Section 98 IPC) provides that the right of private defence is not taken away merely because the person doing the threatening act lacks full legal responsibility. Even in the conditions listed below, the right to exercise private defence does not cease:

1. By the reason of youth.
2. The want of maturity, of understanding.
3. The unsoundness of mind, the intoxication of the person doing that act.
4. By reason of any misconception on the part of the person.

Section 37 (formerly Section 99 IPC) sets out the important limits on the right, that is, the situations where private defence is not available:

1. Against the acts of a public servant acting in good faith under colour of his office.
2. Against the acts of those acting under the authority or direction of a public servant.
3. Where there is sufficient time for recourse to the public authorities.
4. The harm caused in private defence must never be more than is necessary for the purpose of defence.

This last limit is crucial: the right of private defence is bounded by proportionality. You may use only as much force as is reasonably necessary to ward off the threat, and no more.

Section 38 (formerly Section 100 IPC) says that while defending yourself, if you cause the death of the assailant, it is justifiable, but only when the assault falls under one of these conditions:

1. Assault - it leads to the apprehension that the death will be caused.
2. Assault - it leads to the apprehension that grievous hurt will be caused.
3. Assault - if a person is committing a rape or an assault is done with the intention of committing rape.
4. Assault - if assault is done with the intention of kidnapping or abducting someone.
5. Assault - with the intention of gratifying, unnatural lust.
6. Assault - Wrongfully confining a person.
7. Act of throwing or administering acid, which may reasonably cause the apprehension of grievous hurt. So in all these cases, it is justifiable to cause the death of that other person, and the defender will not be charged with murder under Section 103 of the BNS, 2023 (formerly Section 302 IPC), provided the strict limits in Section 37 (formerly Section 99 IPC) are observed.

Section 39 (formerly Section 101 IPC)

This section provides that, if the offence is not one of the descriptions enumerated in Section 38 (formerly Section 100 IPC), the right of private defence of the body does not extend to voluntarily causing death to the assailant, but does extend to voluntarily causing the assailant any harm other than death.

Read together, Section 39 (formerly s.101 IPC) and Section 42 (formerly s.104 IPC) mean that voluntarily causing death is not protected unless all the conditions in Section 38 and Section 41 (formerly ss.100 and 103 IPC) are present.

Section 40 (formerly Section 102 IPC)

This section deals with two very important aspects of the right of private defence of the body – when the right commences and how long it continues. The right commences at the point of time when a reasonable apprehension of danger to the body arises, either from an attempt to commit an offence or from a threat to commit such an offence, even though in either case the offence itself may not have been committed.

Section 41 (formerly Section 103 IPC)

Section 41 is similar to Section 38 (formerly s.100 IPC). While Section 38 deals with the right of private defence of the body extending to causing death, Section 41 (formerly Section 103 IPC) sets out when the right of private defence of property extends to causing death. It is justifiable only when the act falls under one of these conditions:

1. Robbery
2. House Breaking by Night
3. Mischief by fire
4. House Trespass

Section 42 (formerly Section 104 IPC)

This section is a corollary of Section 41 (formerly s.103 IPC). Here too, the restrictions mentioned in Section 37 (formerly Section 99 IPC) have an overriding influence on the right.

Section 43 (formerly Section 105 IPC)

This section is analogous to Section 40 (formerly s.102 IPC) and indicates when the right of defence of property commences and how long it continues. In the case of theft, the right of private defence of property comes to an end on the successful retreat of the thief; but if the thief is running away with the property, he cannot be said to have retreated.

Section 44 (formerly Section 106 IPC)

This section removes an impediment in the right of private defence. The impediment is the doubt in the mind of the defender as to whether he is entitled to exercise his right even when there is a possibility of some innocent persons being harmed by his act. The section says that in case of an assault, reasonably causing an apprehension of death, if the defender is faced with such a situation where there exists risk of harm to an innocent person, there is no restriction on him to exercise his right of defence and he is entitled to run that risk.

A word of caution is essential here. Some years ago, remarks attributed to a senior Haryana police officer were widely reported as suggesting that a woman facing harassment, or a bystander, could simply kill the attacker and face no consequences. That framing is dangerously misleading. The right of private defence is not a licence to kill. As Section 37 (formerly Section 99 IPC) makes clear, the force used must be proportionate and no greater than necessary, and the right extends to causing death only in the narrow situations listed in Sections 38 and 41 (formerly ss.100 and 103 IPC). Outside those limits, taking a life is an offence punishable under Section 103 of the BNS, 2023 (formerly Section 302 IPC). If you are ever forced to defend yourself, act only to the extent needed to stop the threat, and report the incident to the police at the earliest opportunity. When in doubt, consult a lawyer.