ABSTRACT
The right to private defence is a fundamental exception to criminal liability, rooted in the universal principle of self-preservation and natural justice. This paper critically examines the scope, nature, and limitations of this right, particularly within the framework of Indian criminal law as codified under Sections 35 to 44 of the Bhartiya Nayay Sanhita, 2023 (BNS). It explores how the law permits individuals to use necessary and proportional force to protect themselves, others, or their property in situations where state protection is unavailable or delayed. Drawing on historical philosophical foundations, statutory provisions, and key judicial precedents, the study highlights that the right is inherently defensive—not retaliatory—and must be exercised only under specific conditions, such as reasonable apprehension of harm and absence of lawful alternatives. The paper also compares the Indian legal position with international and common law perspectives, thereby providing a broader contextual understanding. While acknowledging the importance of this right in safeguarding civil liberties, the research also underscores the need for robust legal safeguards to prevent its misuse, particularly in the context of mob violence and communal tensions. The conclusion advocates for legal reforms, clearer guidelines, and increased public awareness to ensure the responsible exercise of this essential right, thereby maintaining a just balance between individual freedom and public order.
INTRODUCTION
The right to private defence stands as one of the most crucial and universally accepted exceptions to criminal liability, rooted in the fundamental principle of self-preservation. At its core, this right enables individuals to lawfully protect themselves, others, and their property from imminent harm when the intervention of lawful authority is either unavailable or delayed. While the modern state holds a monopoly over the use of force through its law enforcement agencies, the law nevertheless recognizes that there may be situations where immediate defensive action becomes necessary and justified[1]. In such circumstances, the right to private defence acts as a legal safeguard against penal consequences.Historically, the concept of private defence finds its origins in natural law theories that emphasize the instinct of self-preservation as a basic human right. Thinkers like John Locke and Thomas Hobbes have long maintained that individuals possess an inherent right to defend themselves against aggression, even in the absence of formal legal systems. In the context of modern legal systems, including the Bhartiya Nayay Sanhita, 2023 (BNS), this principle has been codified to maintain a delicate balance between enabling self-protection and preventing its misuse as a license for retaliation or violence. Sections 35 to 44 of the BNS form the statutory foundation of this right in India, laying out both its scope and limitations in a comprehensive manner.
Despite its significance, the right to private defence remains a complex and often controversial area within criminal jurisprudence. It raises fundamental questions regarding the use of force, proportionality, and the threshold of “reasonable apprehension” of danger. Misinterpretations of this right, both by individuals and law enforcement agencies, have sometimes led to misuse, raising concerns about vigilantism and excessive force. In recent years, public discourse around self-defence has intensified, particularly in cases involving mob violence, communal tensions, or alleged police inaction.[2]This research paper aims to critically examine the scope and limitations of the right to private defence, with a particular focus on Indian criminal law, while drawing comparisons with other legal systems. It seeks to explore the legal boundaries within which this right operates, the extent to which it is protected, and the circumstances under which it may be restricted. Through an analysis of statutory provisions, judicial interpretations, and real-world applications, this paper will attempt to provide a nuanced understanding of this essential yet contentious legal defence.
PRIVATE DEFENCE: MEANING AND TYPES
The articulation ‘private guard’ that has been utilized in the Bhartiya Nayay Sanhita, 2023, has not been characterized in that. Consequently, it has been the privilege of the legal executive to develop a useful system for the activity of the right. Accordingly in India, the right of private guard is the option to protect the individual or property of himself or of some other individual against a demonstration of another, which on the off chance that the private safeguard isn’t argued would have added up to a wrongdoing. This right hence makes an exemption for criminal risk. A portion of the parts of the right of private protection under the IPC are that no right of self-preservation can exist against an unarmed and unoffending individual, the right is accessible against the assailant just and it is just the individual who is in impending peril of individual or property and just when no state help is free[3]. The right of private guard is a characteristic right which is displayed from specific conditions rather than being in the idea of an honor. Notwithstanding, the main standard is that the right of private protection expects that the power utilized in the guard should be vital and sensible in the conditions. Yet, at the times of upset state of mind, this can’t be estimated in brilliant scales. Regardless of whether the instance of need exists not acommodated when the right can’t be truly practiced and furthermore the arrangement indicates obviously the cases in which the right can reach out to the causing of death of the attacker. The sensible anxiety must be defended assuming the denounced had a genuine conviction that there is risk and that such conviction is sensibly justified by the lead of the attacker and the encompassing conditions. This acquires a bit of a genuine measure for laying out ‘sensibility.’ The approach of risk is additionally a significant essential for the legitimate exercise self-protection.
[1]James Q. Whitman, Between Self-Defense and Vengeance/between Social Contract and Monopoly of Violence, 39 TULSA L. REV. 901, 902 (2004)
[2]George P. Fletcher, Self-Defense as a Justification for Punishment, 12 CARDOZO L. REV. 859, 865 (1991).
[3]Mondal, M., 2019. A Detailed Study of Right to Private Defence under IPC. LexForti Legal J., 1, p.1.