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Right to Private Defence Under BNS: A Comparative Analysis with Indian Penal Code
Private defence, (also called as self-defence), is a legal provision described in the Indian Penal Code of 1860. The provision empowers every individual to protect themselves, their property, and others from unlawful attack. However, recently the Parliament has legislated the Bharatiya Nyaya Sanhita, 2023 to replace existing Indian Penal Code, 1860. Though Bharatiya Nyaya Sanhita (BNS) retains the most of the provisions of IPC, but at the same time, has also amended many of the provisions.
So, in this article, primarily, will understand the meaning, scope, and limitations, of “private defence” under BNS and then analyses the changes that has been done in comparison to IPC.
Meaning of Private Defence
In the legal framework, private defence, refers to one of the inherent rights of all individuals to protect themselves, their property, and others from unlawful attack and aggression. The basic function of private defence is, it empowers every individual to defend oneself in response to any imminent threats or attacks by any other individual (or even animal). Furthermore, in defence, he or she can attack but with a reasonable and proportionate use of force.
It is important to share that the right of private defence (or self defence) is not an absolute in nature rather contingent upon the existence of a genuine apprehension of harm. Likewise, it has certain limitations, such as the necessity to act in good faith and avoid the use of excessive force. Likewise, it has limitations, such as the necessity to act in good faith, apply the defence attack in proportion to attacking power, and hence cannot apply excessive force.
Moreover, private defence is a fundamental principle of a legal system that designed to safeguard individual safety and ultimately maintain social order and justice.
Private Defence Under Bharatiya Nyaya Sanhita
Sections 34 to 44 of Chapter III of Bharatiya Nyaya Sanhita (BNS) describe the provision of private defence. These sections not only define the provisions of private defence, but also outline the circumstances under which a person can use force to protect themselves, their property, or others from external harm.
Private Defence Under Bharatiya Nyaya Sanhita and Comparison with Indian Penal Code
The given table provides the analytical study of private defence −
| Basis | Bharatiya Nyaya Sanhita | Indian Penal Code |
|---|---|---|
Chapter |
III |
IV |
Sections |
34 to 44 |
96 to 106 |
Right of Private Defence |
Section 34 − Nothing is an offence which is done in the exercise of the right of private defence. Section 35 − Every person has a right, subject to the restrictions contained in section 37, to defend— (a) his own body, and the body of any other person, against any offence affecting the human body; (b) the property, whether movable or immovable, of himself or of any other 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. | Section 97 − No change |
Section 36 − 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 defence against that act which he would have if the act were that offence. |
Section 98 − No change |
|
Commencement |
Section 40 − The right of private defence 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. |
Section 102 − No change |
Limitations |
Section 37 − (1) There is no right of private defence,–– (a) 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 colour of his office, though that act, may not be strictly justifiable by law; (b) 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 colour of his office, though that direction may not be strictly justifiable by law; (c) in cases in which there is time to have recourse to the protection of the public authorities. (2) The right of private defence in no case extends to the inflicting of more harm than it is necessary to inflict for the purpose of defence |
Section 99 − Minor changes in terms of giving code/number. |
Extent of Right |
Section 38 − The right of private defence 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:— (a) such an assault as may reasonably cause the apprehension that death will otherwise be the consequence of such assault; (b) such an assault as may reasonably cause the apprehension that grievous hurt will otherwise be the consequence of such assault; (c) an assault with the intention of committing rape; (d) an assault with the intention of gratifying unnatural lust; (e) an assault with the intention of kidnapping or abducting; (f) an assault with the intention of wrongfully confining a person, under circumstances which may reasonably cause him to apprehend that he will be unable to have recourse to the public authorities for his release; (g) 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 |
Section 100 − No change |
Section 39 − If the offence be not of any of the descriptions specified in section 38, the right of private defence 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 |
Section 101 − No change |
|
Section 41 − The right of private defence of property extends, under the restrictions specified in section 37, to the voluntary causing of death or of any other harm to the wrong-doer, if the offence, the committing of which, or the attempting to commit which, occasions the exercise of the right, be an offence of any of the descriptions hereinafter enumerated, namely:— (a) robbery; (b) house-breaking after sunset and before sunrise; (c) mischief by fire or any explosive substance committed on any building, tent or vessel, which building, tent or vessel is used as a human dwelling, or as a place for the custody of property; (d) theft, mischief, or house-trespass, under such circumstances as may reasonably cause apprehension that death or grievous hurt will be the consequence, if such right of private defence is not exercised |
Section 103 − No change |
|
Section 42 − If the offence, the committing of which, or the attempting to commit which occasions the exercise of the right of private defence, be theft, mischief, or criminal trespass, not of any of the descriptions specified in section 41, that right does not extend to the voluntary causing of death, but does extend, subject to the restrictions specified in section 37, to the voluntary causing to the wrong-doer of any harm other than death. |
Section 104 − No change |
|
Commencement & Continuance of right to private defence of Property |
Section 43 − The right of private defence of property,– (a) commences when a reasonable apprehension of danger to the property commences; (b) against theft continues till the offender has effected his retreat with the property or either the assistance of the public authorities is obtained, or the property has been recovered; (c) against robbery continues as long as the offender causes or attempts to cause to any person death or hurt or wrongful restraint or as long as the fear of instant death or of instant hurt or of instant personal restraint continues; (d) against criminal trespass or mischief continues as long as the offender continues in the commission of criminal trespass or mischief; (e) against house-breaking after sunset and before sunrise continues as long as the house-trespass which has been begun by such house-breaking continues |
Section 105 − Minor changes can be seen in language. |
Right of private defence against deadly assault when there is risk of harm to innocent person |
Section 44 − If in the exercise of the right of private defence against an assault which reasonably causes the apprehension of death, the defender be so situated that he cannot effectually. |
Section 106 − No change |
Key Points to Remember
Though BNS provides the right of private defence, but it is also important to note its limitations and conditions as −
Imminent Threat − Prima facie, the terms “imminent threat” is very important, which put the condition that right to private defence is applicable when there is an imminent threat. So, in case of no threat (or assumption of threat) or threat has already been passed, no one is allowed to take defence of this provision.
Proportionate Force − Secondly, the force applied in self defence, must be in proportion to the threat faced. If excessive force applied, then he may face legal action.
Judgment of Reasonable Person − The action taken in private defence must be based on the judgement of a reasonable person facing similar circumstances.
No Right to Seek Revenge − The right of private defence is a defensive measure used in defence of imminent attack, and essentially not an excuse for retaliation.
Conclusion
Private defence, as specified in the Bharatiya Nyaya Sanhita, 2023 (originally taken from IPC), plays a vital role in safeguarding individuals and their property from unlawful aggression, especially in a condition when no security force (e.g. police) available or far from the reach. It is a legal concept that balances the right of self-preservation with the necessity of maintaining order in society. Moreover, the understanding of this provision is essential for all individuals to ensure that justice is served while upholding the rule of law.
Frequently Asked Questions
Q1. What is difference between the provision of private defence defined under the Indian Penal Code (IPC) and Bharatiya Nyaya Sanhita?
Ans. Private defence, as defined under the IPC and BNS, is same. However, there are some perceptible difference such as −
Difference in Chapter: In IPC, it is defined under Chapter IV; whereas in BNS, it is defined under chapter III.
Difference in Sections: In IPC, it is defined under Sections 96 to 106; whereas, in BNS, it is defined under Sections 34 to 44.
Rest, there are some minor change in language and in presentation.
Q2. When does the right of private defence commence?
Ans. The right of private defence commences ideally when there is a reasonable apprehension of an imminent threat to one's body, property, or another person. It does not start before (when there is no imminent threat) or after (when the threatening situation has passed).
Q3. Can private defence be invoked after the danger has passed or attacking on the attacker who is running away from the place?
Ans. The right of private defence is not applicable retrospectively. It is only justifiable when the threat is imminent, and using force after the danger has subsided, is not considered a legitimate exercise of this right.
Q4. Are there limitations to the right of private defence?
Ans. Definitely, the right of private defence is subject to certain limitations, as it cannot be used arbitrarily. Some of essential requirements are, must be used in good faith and force must be applied in the proportion to the threat.
Q5. Can private defence be used to seek revenge?
Ans. Not at all, the provision of private defence cannot be applied to take revenge. It is a defensive measure meant to repel an ongoing attack or threat.
Q6. Does private defence apply to the protection of property?
Ans. Section 35(b) of BNS, the right of private defence extends to the protection of property as well. Likewise, every individual has the legal right to defend their possessions against unlawful attack.
Q7. Is there a requirement for reasonable apprehension to invoke private defence?
Ans. As defined under section 37 of BNS, there is no right of private defence against an act which does not reasonably cause the apprehension of threat. Therefore, right of private defence is contingent upon a reasonable apprehension of an imminent threat.
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