Abstract
To protect oneself or another or even the properties of the same is the Constitutional Right given to the Citizen of India. That is called as a fundamental right in legal terms. Moreover Article 21 of Indian Constitutions advocates same with the heading of “Right to Life and Personal Liberty”. Other than this legal theorem, Article 51 A (d) also advocates the same but on national level crisis. In which it is fundamental duty of people to render national services when asked for (mostly in war time). Earlier the Indian Penal Code (IPC) briefly discuss this concept but, today we have Bartiya Nyaya Sanhita, 2023 discuss the same concept in clauses – 34 – 44 mentioned in Chapter 3rd. Indian Judiciary too in various cases had interpreted its importance and definitions. Keeping same in view this article analyze all the National Statutes and International Statutes and various landmark cases that undermine the same, this article basically interpret the clauses of Bhartiya Nyaya Sanhita, 2023 and announces the changes made in comparison to Indian Penal Code (IPC) if any. Moreover this article focuses on highlighting constitutional and legal scope of this concept covering all the related areas. The main and basic aim of this research is to convey suggestions build up in the course of research.
Introduction
Self – help is the first rule of criminal law. The right of private defense is absolutely necessary for the protection of ones life, liberty and property. No doubt it is the primary duty of the State to protect life and the property of the individuals, but no State, no matters how large its resources might be? The State appointed police to watch the activities of each and every individual and protect them against the mischievous acts of criminals. There are maximum chances the a situation might arise where the State authorities cannot be obtained in order to repel an unlawful aggression, either because there is no time to ask for help, or any other reason. To meet such in competencies the law laid down the right to private defense of body and property to every individual of the State[1].
While laying down this right the lawmakers had introduced directly in criminal statute of the State which is Indian Penal Code, 1860 (IPC) currently, Bhartiya Nyaya Sanhita, (BNS) 2023 as it is the law or right that gives the power to use reasonable force in self-defense while protecting oneself from external criminal aggression. But after enforcement of Indian Constitution Article 21 was set up which declare “right to life and personal liberty” as a fundamental right. With the passage of time when cases started to reach the court of law related to the concept of private defense the court of law started to co-relate Article 21 with Right to private defense and slowly and steadily a final and major interpretation in a case that considered and declared right to private defense itself as a fundamental right under Article 21 because this article has very wide and vast scope.
[1] Bentham’s Principle of Penal Law, p 269; Bentham said:
The vigilance magistrate can never make up for the vigilance of each individual on his own behalf. The fear of the law can never restrain bad men as the fear of some total of individual resistance. Take away this right and you can become in so doing the accomplice, of all bad men.