1. Introduction

India being a democratic country it is important to protect individual rights and personal safety. Global legal systems acknowledge the right to private defense, which allows individuals to protect themselves, their property, and others from imminent threat. This principle is an important aspect of criminal law because it gives people a legal basis to defend themselves and others under certain circumstances.

2. Right of Private Defence

2.1 Legal Provisions regarding the right of Private Defence in India

Sections 96 to 106 of the Indian Penal Code,1860 outline the law regarding the right of private defence of person and property. Few of them are explained below.

(A) Section 96 of Indian Penal Code,1860 states that:

" Nothing is an offence which is done in the exercise of the right of private defence." [1]

This means that private defence is a basic right of every Indian person, allowing them to protect themselves from any external force that may cause harm or injury.

(B) Section 97 (Right of private defence of the body and of property) of Indian Penal Code,1860 states that: [2]

Every person has a right, subject to the restrictions contained in section 99, to defend-

1. His own body, and the body of any other person, against any offence affecting the human body,
2. 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.

(C) Section 98 (Right of private defence against the act of a person of unsound mind, etc.) of Indian Penal Code,1860 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 defence against that act which he would have if the act were that offence [3].

This means that if a person commits a violation that is not considered illegal due to characteristics such as immaturity, lack of comprehension, unsound mind, intoxication, or misinterpretation, others have the right to private defense as if it were a crime.

(D) Section 99 (Acts against which there is no private defence) of Indian Penal Code,1860 states that:

There is no right of private defence 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. [4]

This section describes the activities that are not liable to private defence. These include acts conducted in good faith for the benefit of the performer, acts authorized by law, and acts performed with the consent of the person affected by them.

(E) Section 100 (When the right of private defence of the body extends to causing death)of Indian Penal Code,1860 states that: [5]

The right of private defence of the body extends, under the restrictions mentioned in the last preceding section, 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: [6]

1. Such an assault as may reasonably cause the apprehension that death will otherwise be the consequence of such assault;
2. Such an assault as may reasonably cause the apprehension that grievous hurt will otherwise be the consequence of such assault;
3. An assault with the intention of committing rape;
4. An assault with the intention of gratifying unnatural lust;
5. An assault with the intention of kidnapping or abducting;
6. 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.

The right of private defence allows individuals to cause death or harm to an assailant in specific types of assaults, such as rape, kidnapping, or wrongfully confining someone without public assistance.

2.2 Limitations to the Right of Private Defence

The right to private defence is an important part of criminal law, although it is not an absolute right. The law establishes restrictions to avoid abuse, assuring reasonable and proportionate force in self-defence, and safeguarding innocent people. Understanding these limitations is essential for making sound and mindful use of the right to private defence.

• The amount of power used must be proportional to the threat. The individual defending themselves must not use more force than is required to repel the assault. For example, if someone assaults another person with a fist, the defence cannot react with a deadly tool because that would be excessive force. [7]
• The right to private defense is only applicable in cases of urgent threat or danger and the reason for using force decreases once the threat has passed.
• There shall be no safe or reasonable means of escape by retreat for a person who is exposed to imminent danger to life or serious injury, except by causing the death of the assailant. [8]
• Private defence is not intended to legitimize prior actions, revenge, or punishment, but rather to protect people or groups from urgent and impending dangers. Force used in self-defence is usually justifiable as a response to an ongoing or approaching threat and not the previously occurred threat.

3. Conclusion

The Indian Penal Code of 1860 describes the exercise of private defense rights, which is an important part of Indian criminal law that enable individuals to protect themselves, their property, and others from damage. However, this right includes limitations and exceptions that must be carefully followed to prevent legal difficulties. Private defense is considered a reasonable defense since it focuses on the individual's proof of actions rather than the gravity of the offense.

4. Citations

[1] The Indian Penal Code,1860, (Act 45 of 1860), s. 96

[2] The Indian Penal Code,1860, (Act 45 of 1860), s. 97

[3] The Indian Penal Code,1860, (Act 45 of 1860), s. 98

[4] The Indian Penal Code,1860, (Act 45 of 1860), s. 99

[5] The Indian Penal Code,1860, (Act 45 of 1860), s. 100

[6] Mohi Kumar, " Private Defence: A Right Available To All People In India" available at https://www.legalserviceindia.com/article/l470-Private-Defence.html#:~:text=If%20the%20offence%20be%20not,the%20assailant%20of%20any%20harm (last visited on January 25,2024)

[7] Samridhi, " IPC Notes- Right of Private Defence" available at https://lawctopus.com/clatalogue/clat-pg/ipc-notes-right-of-private-defence/ (last visited on January 23,2024)

[8] Raghav Agarwal, "Right of Private Defence under IPC" available at https://www.legalserviceindia.com/legal/article-9582-right-of-private-defence-under-ipc.html#:~:text=Private%20defence%20is%20a%20right,prevent%20any%20other%20criminal%20activity. (last visited on January 23, 2024)