Introduction 

• The right of private defense is essentially a preventive right and not punitive. 
• This right ensures the safety of one’s own private body against some specific offences. 
• This is the right available to any person to protect anyone’s body or property against such offences. 
• It must be noticed that there must be no plan of action, and the power utilized must not be more than the required power that is needed to ensure the safety of the body or property of the individual. 
• The right of Private defense is briefly discussed under Chapter III (General Exceptions) of the Bharatiya Nyaya Sanhita 2023 (BNS). 

Basis of the Right of Private Defense 

• This right can be exercised against unlawful hostility. 
• It rests with the individual to secure himself and his property against such unlawful hostility. 
• When the prompt guide from the state is not accessible and when the individual is looked with risk, that individual qualifies to use private defense. 
• The right of private defense should never be exercised with the malice intention. 
• The right must be used in a sensible manner. 
• The force used for private defense and the threat should be in proportionate manner. 
• This right cannot be exercised against the community workers acting in the exercise of their legitimate forces. 

Legislative Framework of the Right of Private Defense in India 

• Provisions of BNS which states the Right of Private Defense of body are stated below: 

Private Defense 

• Section 34: Things done in private defense. 
  • Nothing is an offence which is done in exercise of the right of private defense. 

Right of Private Defense of Body & Property 

• Section 35 states that every person has a right, subject to the restrictions contained in section 37, to defend—  
  • His own body, and the body of any other person, against any offence affecting the human body. 
  • The property, whether movable or immovable, of himself or of any person, against any act which is an offence falling under the definition of theft, robbery, mischief or criminal trespass, or which is an attempt to commit theft, robbery, mischief or criminal trespass.  

Right of Private Defense Against Act of a Person of Unsound Mind 

• Section 36 states that when an act, which would otherwise be a certain offence, is not that offence, by reason of the youth, the want of maturity of understanding, the unsoundness of mind or the intoxication of the person doing that act, or by reason of any misconception on the part of that person, every person has the same right of private defense against that act which he would have if the act were that offence. 

Acts Against Which No Private Defense is Available 

• Section 37 states that  
  • Against an act which does not reasonably cause the apprehension of death or of grievous hurt, if done, or attempted to be done, by a public servant acting in good faith under color of his office, though that act, may not be strictly justifiable by law. 
  • Against an act which does not reasonably cause the apprehension of death or of grievous hurt, if done, or attempted to be done, by the direction of a public servant acting in good faith under color of his office, though that direction may not be strictly justifiable by law. 
  • In cases in which there is time to have recourse to the protection of the public authorities.  
  • The right of private defense in no case extends to the inflicting of more harm than it is necessary to inflict for the purpose of defense. 

Right of Private defense Causing Death 

• Section 38 states that the right of private defense of the body extends, under the restrictions specified in section 37, to the voluntary causing of death or of any other harm to the assailant, if the offence which occasions the exercise of the right be of any of the descriptions hereinafter enumerated, namely: 
  • Such an assault as may reasonably cause the apprehension that death will otherwise be the consequence of such assault. 
  • Such an assault as may reasonably cause the apprehension that grievous hurt will otherwise be the consequence of such assault. 
  • An assault with the intention of committing rape. 
  • An assault with the intention of gratifying unnatural lust. 
  • An assault with the intention of kidnapping or abducting. 
  • Circumstances which may reasonably cause him to apprehend that he will be unable to have recourse to the public authorities for his release 
  • An act of throwing or administering acid or an attempt to throw or administer acid which may reasonably cause the apprehension that grievous hurt will otherwise be the consequence of such act. 

Right of Private Defense Causing Harm to the Body 

• Section 39 states that if the offence be not of any of the descriptions specified in section 38, the right of private defense of the body does not extend to the voluntary causing of death to the assailant, but does extend, under the restrictions specified in section 37, to the voluntary causing to the assailant of any harm other than death. 

Commencement of Right of Private Defense 

• Section 40 states that the right of private defense of the body commences as soon as a reasonable apprehension of danger to the body arises from an attempt or threat to commit the offence though the offence may not have been committed; and it continues as long as such apprehension of danger to the body continues. 

Right of Private Defense Against Deadly Assault 

• Section 44 states that if in the exercise of the right of private defense against an assault which reasonably causes the apprehension of death, the defender be so situated that he cannot effectually exercise that right without risk of harm to an innocent person, his right of private defense extends to the running of that risk. 

Landmark Judgements 

• James Martin v. State of Kerala (2003): It was held that factors, for example, wounds got by the accused, the advent of risk to his security, wounds that are brought about by the denounced and furthermore the conditions wherein the wounds were caused are taken into consideration. It is hard to anticipate that an individual should measure the power required. Such circumstances are seen sober-mindedly, remembering ordinary human response and conduct. 
• Yeshwant Rao v. State of Madhya Pradesh (1992): In this case it was held that the assault that occurred on the girl was adequate to make sensible apprehension in the brain of the accused and in this way his demonstration was supported. The privilege of private defense was practiced by the accused to secure the body of another.   
• Onkarnath Singh v. State of Uttar Pradesh (1974): It was held that there was nothing to legitimize the dangerous assault. The power utilized was out of extent to the alleged threat, which never again existed from the complainant party.   

Conclusion 

Self-defense is a rule of criminal law and in this manner, the state gives people the right to ensure and protect themselves .To exercise the Right of Private Defense, there must be an immediate risk of life or grievous hurt to the body and no reasonable means to escape available the time must be insufficient to seek assistance from the authorities and it is such serious that causing the death of the assailant must have been unavoidable.