Analysing the Right of Private Defence



Every Indian citizen has the right to private defence of body and property under the Indian Penal Code. Sections 96 to 106 of the Code provide the law governing the right to private defence of one's person and property. The state's primary responsibility is to protect the life and property of its citizens[1]. The right to private defence is vital, and it is essentially preventive rather than punitive. It is available even in the face of antagonism when state assistance is unavailable. The phrase "right of private defence" is not defined under IPC. Section 97 deals with the subject of private defence, which includes the right to secure the body or property of those exercising the right or of another individual. Private defence is described as an act to protect one's body and property from another when there is a reasonable fear of injury or damage to one's property[2]. In general, private defence is a general exception that refers to the defence one can use to save their own life or the life and property of another when there is a necessity. The first rule of criminal law is an individual's safety, i.e., self-defence.


Basis of the Right of Private Defence

According to B. Parke, "Nature prompts a man who is stuck to oppose, and he is justified in utilising such an extent of force as will prevent a redundancy." The extent to which this prerogative of private defence is recognised is determined by the state's ability and assets to secure its subjects[3]. The privilege of private defence is a highly valued and fundamental right granted to citizens to protect themselves and their property by effectively obstructing unlawful hostility. The primary guideline for the right of private defence is that when an individual or their property is threatened, and prompt assistance from the state machinery is not immediately available, that individual is qualified to protect themself and their property. According to the legislation, each resident must stand firm in the face of adversity.


There are three tests for determining reasonable apprehension: objective, subjective, and expanded objective. The objective test focuses on how an ordinary, reasonable, standard, and average person would respond in a similar scenario. In contrast, the subjective test assesses the mental state is taken into consideration depending on individual attitude. However, the expanded objective test, which is a blend of the preceding two, bases its investigation on whether or not the subject acted reasonably.


The right to private defence serves a social function, and it should be generously interpreted[4]. Such a right not only has a restraining effect on evil characters but also fosters a manly attitude in a law-abiding citizen. The right of a citizen to private defence, in which they can take the law into their own hands to defend their own body and property or that of others, is clearly described in Sections 96 to 106 of the Indian Penal Code[5]. This freedom to defend oneself is critical, remarked Jeremy Bentham. The Magistrates' vigilance can never compensate for each individual's attentiveness on their behalf. The fear of the law will never be as effective as the fear of collective opposition in restraining evil. One becomes an accomplice to all horrible characters if this right is taken away.


This right is based on two principles:

It can be utilised only against the aggressor and only when the defence reasonably suspects the aggressor.


Legislation for the Right to Private Defence

Section 96 stipulates that nothing done in exercising one's right to private defence constitutes an offence. The right, however, is not absolute. Sections 97 to 105 define the boundaries within which the right can be exercised, the extent of the hurt that can be done, and who these rights can be exercised against[7].

Section 97 states that every man has the right to defend his own body and the body of any other person against any offence affecting the human body and the right to defend their property and the property of any other person, whether movable or immovable. (Subject to the limitations outlined in Section 99)[8]


Limitation and restrictions on Private Defence

In Majin Thomas George v the State of MP[9], the Madhya Pradesh High Court imposed three limitations on exercising the right to private defence:

  1. No more harm must be inflicted than is necessary.

  2. There must be a realistic fear of bodily harm due to the effort or threat to commit some offence.

  3. The right does not begin until there is a reasonable fear.

In Puran Singh v State of Punjab[10], the Supreme Court had an opportunity to assess and establish the constraints on exercising the right to private defence of person and property.

The Court noted that the right is subject to the following limitations:

  1. The right is not available if there was sufficient time to seek recourse from public authorities;

  2. More harm than necessary should not be caused; and

  3. There must be a reasonable fear of death or grievous bodily harm to the person or damage to the property concerned.

The Supreme Court stated in Dharm v State of Haryana [11] the fundamental idea behind the right to private defence doctrine. When an individual or his property is threatened and timely assistance from the state apparatus is not available, that individual has the right to defend himself and his property. As a result, the violence that a citizen is permitted to protect himself or his property must not be disproportionate to the injury sought to be avoided or reasonably anticipated.


Consequences of Excessive Private Defence: A Comparison

The Indian law, in homicidal circumstances, the legal impact is that when the individual exceeds the right and conducts what would otherwise be the offence of murder, they are guilty of culpable homicide, not amounting to murder.

In English criminal law, such culpable homicide is referred to as manslaughter. Only when there is a right to private defence, and that right is violated is the crime of murder is reduced to culpable homicide. The exception (2) to Section 300 of the Indian Penal Code states[12]: "Culpable homicide is not murder if the offender, in exercising in good faith the right of private defence of person or property, exceeds the power granted to him by law and causes the death of the person against whom he is exercising such a right of defence without premeditation, and without any intention of doing more harm." In Jassa Singh v the State of Haryana,[13], the Supreme Court ruled that the right to private property defence does not extend to inflicting the death of the individual who committed such crime if the trespass is on open land. Only a house-trespass committed under such circumstances that could result in death or serious bodily harm is included as an offence under Section 103 of the Indian Penal Code.


Canadian Law:

In Canada, like India, a judgement of manslaughter is substituted for a verdict of murder when disproportionate force is employed in self-defence. It is evident from the judgements. In R v Barilla,[14] the Court of Appeal ordered that a manslaughter verdict be substituted for a murder verdict.

In R. v Oulette[15], the Court of Appeal concluded that on a plea of self-defence in murder accusation, the jury should be directed to determine whether the accused acted in self-defence and whether the force employed was excessive. In such cases, they may substitute a manslaughter verdict.


The American Legal System:

In America, as in England, there may be a comprehensive defence or no defence at all. As a result, in cases of disproportionate force employed in self-defence, the accused is sentenced to death. However, a new pattern emerges, where the attacker uses non-lethal force or battles with fists or another non-lethal weapon, and the victim retaliates with lethal force. The same can be justified by the initial victim's extreme reaction to the aggressiveness that went beyond the victim's right to self-defence. In this case, the initial victim turned the aggressor, and the altercation was attributed to the initial victim's overreaction.[16]


In other Commonwealth countries, such as Canada and Australia, murder is turned into manslaughter in such instances. However, in England and America, force in self-defence is either completely exempted or not at all. In America, if the defendant uses more force than is necessary for self-defence, the aggressor gains the right to self-defence.[17]


Conclusion

The right to private defence is a natural and inherent right of every human being that societal legislation cannot revoke. There is nothing more demeaning to the human spirit than fleeing in the face of danger, and society is not there to make its members cowards. Though it is the primary responsibility of the state to defend the interests of its citizens, the state cannot make this right absolute. The law of private defence codified in the Indian Penal Code is based on English law but has been accepted with minor modifications to meet the needs of Indian culture. Sections 96 to 106 of the Code contain the applicable sections of this law. These Sections, however, do not analyse the law logically. The Sections must be grouped logically, To make them easier to understand. It is argued that it is high time to evaluate all legislation and court rulings about the right to private defence.


Endnotes:

[1] Times of India Blog. 2021. Right Of Private Defence. [online] Available at: <https://timesofindia.indiatimes.com/readersblog/lawpedia/right-of-private-defence-33052/> [Accessed 22 September 2021].

[2] Rathore, P., 2021. Private Defence Related to Body Under Indian Penal Code. [online] blog.ipleaders. Available at: <https://blog.ipleaders.in/private-defence-related-to-body-under-ipc/> [Accessed 22 September 2021].

[3] ibid

[4] Academike. 2015. Right of Private Defence - Academike. [online] Available at: <https://www.lawctopus.com/academike/right-private-defence/> [Accessed 23 September 2021].

[5] ibid

[6] Mathur, k., 2021. Right to Private Defence. [online] LexCliq. Available at: <https://lexcliq.com/right-to-private-defence/> [Accessed 23 September 2021].

[7] Legislative.gov.in. n.d. [online] Available at: <https://legislative.gov.in/sites/default/files/A1860-45.pdf> [Accessed 23 September 2021].

[8] ibid

[9] 1978 CrLJ 578 (M.P.)

[10] 1975 CrLJ 1479 (SC)

[11] 1962 Suppl (3) SCR 769

[12] Sec 300 , Indian Penal Code

[13] 2002 CrLJ 563 (SC)

[14] 82 Can. C.C. 228 (1944), 4 D.L.R. 344, 3 W.W.R. 305, 60 B.C.R. 511

[15] 98 Can. C.C. 153 (1950), (1950) 2 W.W.R. 875, 10 C.R. 397 (B.C.C.A.)

[16] Sanford H. Kadish, Encyclopedia of Crime and Justice, New York, (1983), p. 948.

[17] Castillo v State, 614 p. 2d 756 (Alaska 1980)


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