INTRODUCTION
Self-preservation is a basic human urge that is acknowledged by all civilised countries’ criminal jurisprudence. Within certain reasonable limits, all free, democratic, and civilised countries recognise the right to self-defence. To assert a right of private defence that includes voluntary causing of death, the accused must establish that there were circumstances that gave rise to reasonable grounds for believing that he would suffer death or grave harm. The law of private defence does not require the individual who has been assaulted or is under suspicion of being assaulted to flee for their own protection. It provides him the right to defend himself, and the law grants him that right. There is no right to self-defence if there is no reasonable fear of harm. The need to avoid a coming threat must be present, whether real or perceived. Self-preservation is paramount since nothing is more important to man, or any other animal or living thing, than bodily health. As a result, one of the basic rights is the right to protect one’s person from bodily harm. It is natural to defend oneself; one would choose to kill rather than be killed.
Private Defence Law can be traced back to the dawn of civilization, when everyone had the right to defend his or her life and property. Communities have used their right to defend their property and lives many times throughout history. In fact, it is not an exaggeration to say that the two world wars that history has witnessed, as well as the ongoing conflicts between states and between communities within states, are examples of communities exercising their right to defend their land, water, and other natural resources from encroachment by the State or vested interests in society. Every legal system in the world today understands and accepts that everyone’s life and property are valuable. The natural right to defend oneself against violent acts of others in order to safeguard one’s life and property was established in the Indian Penal Code of 1860.
In his article “Private Defence”, legal scholar Michael Gorr made the following observations:
“With the exception of extreme pacifists, almost everyone thinks that it is occasionally morally appropriate to engage in what Glanville Williams calls “private defence,” i.e., inflicting substantial (even death) harm on another person to defend oneself or an innocent third party from suffering the same.”
The presence of other people who are merely standing by as silent witnesses has no bearing on this right of Private Defence. The law expects citizens to stand firm in the face of illegal aggression. When confronted by criminals, no one is required to flee or exhaust all other options before exercising his right to self-defence. It is not expected of man, no matter how law compliant, to act like a rank coward at any time. Every free country’s residents should be encouraged to exercise their legal right to self-defence. There is nothing more demeaning to the human soul than to run away in the face of disaster. If a man stands his ground and fights back against his attackers, he is perfectly justified. However, this is a right of defence only, not of punishment or vengeance. The force used to defend one’s person or property must not be excessively disproportionate to the injury that is being avoided or reasonably anticipated. The right to self-defence should never be used for vengeful or evil purposes.
It is not illegal to defend oneself or another from unlawful aggression that causes a reasonable fear of death or grave bodily damage, or to use force to carry out a legal obligation, as long as no more harm is caused than is necessary. The rule of self-preservation dictates that a person must safeguard his or her life or physical integrity even if it means sacrificing the assailant’s life or limb. The right is a means to an end, to protect the defender’s legitimate legal interests. The law does not need or wish for people to submit quietly to a bodily assault because doing so would only provide an incentive to criminals. If the right to life is upheld but the authorization to employ reasonable means to repel hostile threats is denied, there will be a logical conflict. In all legal systems around the world, self-defence is the oldest premise for justifying the use of force. An individual has the right to protect himself against an assault by using whatever force is required. This right extends not only to his own body but also to that of his family and, in the case of a felony attack, even to that of a third party. The law allows for the defence of others because righteous wrath, sparked by seeing the powerful mistreat the weak, is unquestionably a moral impulse. It encourages people to put their own safety first and help those in need. The law must tread carefully so as not to sever the ties that bind this generous partnership of courage and humanity. Let it instead bestow all honour and reward on the person who safeguards the interests of others. It is in the public interest for every man to regard himself as a natural protector of others. The right to self-defence is essential for the protection of one’s person, habitation, or property from an aggressor who clearly intends and attempts to take them away. Without a question, the state’s principal responsibility is to defend the lives and property of its citizens, but no state, no matter how great its resources, can delegate a police officer to monitor each and every individual’s activities and protect him from criminal acts. There may be times when state authorities’ assistance is unable to stop an unlawful aggression, either because there isn’t enough time to seek for it or for other reasons. As a result, in order to address such needs, the law has granted everyone the right to private defence.
Defending one’s own person; right, etc., according to the Chambers English Dictionary. This dictionary uses the term “self-defence” instead of “private defence.” This is the most exact meaning of private defence: any action taken to protect oneself and one’s birth rights. The term ‘right’ here refers to a person’s legal rights.
“Where a person commits a tort in defence of himself or his property, he is not always responsible if the act was in the circumstances of a reasonable nature,” writes L.B. Curzon. Another meaning of private defence is “an action conducted in justifiable defence of one’s person or property,” according to Osborn’s Concise Law Dictionary. It can be used as a defence in a tort action. The right to defend one’s family and most likely, any other individual against unlawful force.
“It would be a major mistake to see Self-Defence as an inevitable evil experienced by the law due to the hardness of men’s hearts,” Pollock says. The right is the only one that is both just and flawless. As previously stated, every species with means of defence has the impulse to “repel force with force.” When the originating force is illegal, the law may allow this natural right or power of man to be exercised. Sudden and resolute resistance to unjustified attack is not only a thing to be tolerated; it is a moral imperative in certain cases.”
The State and its personnel are granted exclusive law enforcement obligations in structured societies. Individuals must rely on and defer to the state’s monopoly of law enforcement, which prohibits private acts of retribution and violence. The right of Private Defence, like the defence of necessity, is an exception to this rule, allowing individuals to take the law into their own hands. The extent of Private Defence, on the other hand, is carefully limited and impacted by the structure of State-individual relations. The nature of society interactions and expectations of how individuals are to behave vis-à-vis one another would also influence the limits of Private Defence as the use of private force by one individual against another. As a result, private defence has an impact on organised societies’ political, moral, and social dimensions. Private Defence, in general, allows individuals to employ coercive force to defend themselves against an attack by another. Private Defence will be influenced by specific political and moral ideals in society, according to one interpretation of this general concept. Private Defence can also be thought of as a means of defending the socio-legal order, with the person using defensive force acting as a “representative or protector of society, public order, and the legal system.” Because private defence is a natural and intrinsic right of every man, society’s laws cannot override it. It cannot be superseded by the law of society, even if it is curtailed to some extent. This right has been recognised since antiquity, but only within specific bounds. The survival of the fittest was the rule in nature, with the idea of self- preservation dictating much of human conduct. A man has the inherent natural right to murder another in self-defence. This was almost an unrestricted privilege that each individual was granted by the ‘Law of Nature.’ The intrinsic right of a person to protect himself and his property in the face of danger is still recognised by the liberal democratic state today. This differs from the State’s monopoly on violence, in which the State alone is justified in using force or punishing the wrongdoer in all circumstances. The law relating to Self-Defence is thus merely an extension of the principle of necessity, with a clear and present danger, the imminence of harm to either person or property, and the consequent necessity to protect oneself or one’s property serving as the test or a reasonable exercise of Self-Defence. This is in line with a fundamental goal of criminal law, which is to protect lawful action from being labelled illegal. The right to self-defence is one that has been passed down from ancient law givers. Manu advised using arms in self-defence, and the principle may be traced back to Anglo-American jurisprudence. The right to private defence is based on the principle that, in certain circumstances, a person’s conduct is justified even if it is otherwise criminal, and homicide committed in such circumstances has been dubbed “excusable homicide,” with the slayer performing a task that the State would normally perform. As a result, the law allows what the law demands. This is why the right has been carefully limited while yet being sacredly safeguarded. Any community must have the right to self-defence. It is now widely
accepted as a justification for otherwise illegal behaviour. Even the United Nations has recognised it as a universal human right. The right to self-defence, however, is as sensitive as it is important, and it has not been treated with the care it deserves. In the event of self- defence pardons, automatic pardons must not be granted because this would lead to an illogical interpretation of the law and would aid and encourage homicide. The act of self- defence should be shown to be defensive rather than offensive, and there should be no hints of vengeance or reprisal, as it is completely instinctive.
As Donovan J. points out, the law of private defence is “not written, but born with us; a law which we have sucked in and imbibed from nature itself; a law which we were not trained in, but which is ingrained in us, namely, that if our life is in danger from robbers or enemies from violence, every means of securing safety is honourable.” When arms are raised, laws are quiet, and do not expect to be waited for, since he who waits will incur an unjust consequence. Reason has taught learned men, necessity has taught barbarians, custom has taught all nations, and nature has taught wild beasts, that they must at times repeal violence by whatever means they may, without concluding that all men must perish at the hands of their foes.”
The right to private defence does not apply to conduct that are not illegal. It can be used against any attacker, whether sane or deranged, competent or stupid, and mistaken or not. Regardless of their motive or meaning, overt attacks are defeated by the right. It exists even when innocent people are hurt, when life or limb is in jeopardy, and there is no other way to defend the victim. The criteria is whether there was an immediate need for Self-Defence, as well as whether it was necessary for the defendant to take that specific course of action. If the attack is actual or threatening, the right exists. The appearance of risk must be real, but not the peril, in order to justify the taking of life on the basis of appearance of peril. The act of killing must be carried out because of a genuine and well-founded fear of impending harm. As a result, the courts should consider the circumstances from the perspective of the accused rather than a detached observer. The legal premise that it is illegal to kill is based on the same desire and right to live as the right to defend one’s life from death or grave bodily harm.
When a threat to a person or property is immediate, the right of self-defence arises and remains available as long as the threat exists. The right of self defence can be used as a shield to deter an unjustified attack on a person or property, but it cannot be used to provoke the attack, implying that it should only be used as a preventive measure rather than to begin an attack. As a general rule, an individual can take whatever defensive or evasive actions they believe are reasonable in the circumstances. Self-Defence, unlike much of the common law, is not a formulaic area of law, but rather focuses on the facts of each case.
Even Anglo-American jurisprudence can be traced back to the origins of the concept of self- defence. All civilised jurisprudence follows this concept. A person in dread of his life is not expected to modify his defence step by step or tier by tier, according to Robert B. Brown v. United States of America (1921). “Detached reflection cannot be demanded in the presence of an elevated knife,” wrote Justice Holmes in the aforementioned case.
It is now nearly universally accepted that a guy who kills another person or even causes grievous physical harm in self-defense is lawful and should be acquitted. Justifiable homicides in strictu sensu were not punishable under early English law. They were not deemed felonies, and the killer’s property was not forfeited. This was due to the fact that homicide was either prohibited or tolerated by law. It is founded on the ancient common law idea that what the law requires, the law also justifies. In other words, in circumstances of justifiable homicide, the slayer is viewed as acting on behalf of the State. However, in the current period, acts that are homicidal in character can be justified if they meet the legal requirements. However, it took a long time for the homicidal deeds to be justified.
A state owes its citizens the duty to defend their lives, limbs, and property. However, no state, no matter how resourceful or well-organized, will be able to assign a police officer to each individual to defend his or her body and property, or to follow the steps of every person who poses an unlawful threat to another’s body or property. A state can never provide assistance to everyone at all times and in all circumstances. In such a case, an individual will be obligated to use all available measures to preserve himself and his property in order to satisfy his urge for self-preservation. He is not expected to surrender or leave; rather, he is expected to stand firm and neutralise the looming threat. He has the right to stay and defeat the threat. He who is in this situation has the right to fight with just force to oppose the threat or until the State arrives to save him. The right to self-defence is based on the general proverb that “necessity recognises no law” and that “it is man’s fundamental obligation to aid him first.” Every person had the right to self-preservation, but nothing could be done to attain that goal if it interfered with another person’s right.
Hari Singh observed thus:
“Based on the basic idea that man’s first responsibility is to help himself. It is then predicated on the concept that the state’s police are not always present, and that a person may strike out for himself or for another. However, if unqualified, such a regulation could encourage vengeance, resulting in societal chaos. As a result, it establishes the rule’s boundaries as well as the conditions under which it operates.”26
In times when State assistance is unavailable, India and other modern civilised cultures are influenced by this concept and grant their inhabitants every right to fight the violent deeds of others, i.e. to repeal violence by violence, although with limitations.
From the foregoing explanation, it is clear that the right to private defence is a valuable defence in criminal law, as stated in the Indian Penal Code’s “General Exceptions.” Sections 96 through 106 of the Indian Penal Code include the applicable laws. These rules, however, should not be interpreted in light of principles defining the right of self-defence under English common law. The provisions are self-contained, and the scope of the right must be determined by looking at the terms used in the Sections.