It is the duty of every State to protect its citizens but no country, especially with its vast population, can afford to ensure protection to each and every citizen personally. Therefore, the right to self-defense is one that is recognized by every free nation in the world so that individuals can, in some instances, take law into their own hands for their safety. Any act done in self-defense is not an offense and no person will be convicted for the same. However, for an act to be considered as one of self-defense, the danger must be immediate and real where the victim has no time to follow the legal recourse of alerting the local police. In India, the right to self-defense is protected under Sections 96 – 106 of the Indian Penal Code.
Necessity knows no law
“Necessity knows no law” is a common saying which means that an act done out of necessity cannot be subjected to the rules of law. The right to self-defense is a mere extension of this and the test of necessity plays an important role in determining self-defense along with factors such as[i]:
- clear and present danger
- imminence of harm to person or property
For example, if A sees his neighbour’s house on fire and rushes onto the property with buckets of water to put out the fire, A cannot be sued for trespass because there was a necessity to stop the house from burning down and there was an imminent threat to property.
In India, the right to self-defense extends to life and property of one person or of any other person and this creates an exception to criminal liability.
Penal provisions relating to self-defense
Section 96 of the Indian Penal Code (IPC) states that “nothing is an offence, which is done in the exercise of the right of private defense,”[ii] while Section 97 states that “every person has a right 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 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.”[iii] This means that no person can be convicted for any harm caused by an act of self-defense against his own life or property or that of another. According to Indian and Common law, there is no requirement that, in the exercise of private defense against the life or property of another, the defendant must have any relationship with the person whom he has saved. Any third person who comes to the rescue of another or their property does so at his own risk and therefore, there does not need to be any existing relationship.
However, this right under Section 96 is not absolute as it is restricted by the provisions of Section 99 and most importantly, any force used should be necessary and reasonable in the given circumstance. The act must be proportionate to and not greater than the foreseeable danger. A person claiming the right to self-defense should not have used force that was out of proportion to the injuries received or threatened and the onus of proving self-defense is on the person who is pleading it. In the case of Thangavel v State[iv], the court held that the right to self-preservation is inherent to the right to life but in the exercise of that right, no person can hinder another person’s rights.
In addition to disproportionate harm and no reasonable apprehension of death or injury, Section 99 states that there is no right to self-defense against an act done by the direction of a public servant acting in good faith.
The right to self-defense does not require mens rea or ‘intention or knowledge of wrongdoing’ so every person has the right to private defence no matter who the aggressor is and this is provided under Section 98 of the IPC which states that “any 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.”[v]
Under Sections 100 and 103 of the IPC, the voluntary causing of death is protected if there is an immediate threat of death, intention of committing rape or kidnapping or gratifying lust or wrongfully confining a person, or if there is robbery, housebreaking, mischief by fire or theft/mischief/trespass to property where death can be apprehended as a consequence. In the case of Jassa Singh v State of Haryana[vi], the Supreme Court held that the right to voluntarily cause death extends only to trespass of houses and not open land with no inhabitants. Sections 101 and 104 state that voluntarily causing death will not be protected unless all provisions of Sections 100 and 103 are present.
Section 106 is extremely important in respect to the extension of the right to self-defense. In all the Sections mentioned above, the right to self-defense extends only to the aggressor and not anyone else but according to Section 106 of the IPC, “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 exercise that right without risk of harm to an innocent person, his right of private defence extends to the running of that risk.”[vii] For example, if A is being attacked by a mob and the only way to save himself is to fire at the mob but in doing so he runs the risk of injuring innocent children, A can fire at the mob and will not be convicted if he injured any children in the process. This Section removes any hesitation in a person’s mind and allows him to act solely for the protection of his life and property, without considering the possible harm to an innocent person, in case there is any imminent threat.
After understanding the right to self-defense and the situations in which it is applicable, it is important to identify when the right to self-defense commences and till when it continues. With respect to self-defense against life, according to Section 102 of the IPC, the right commences when the reasonable apprehension of danger to the body of a person arises and it continues until such apprehension has ended. Section 105 reiterates the same principle provided in Section 102 but it applies to the right to defend one’s property or the property of another.
Conclusion
When man existed in the State of Nature, the rule was ‘survival of the fittest’ and there was an absolute right to self-defense. However, with the advent of modern democracies, this right is still recognized but it is subject to some restrictions. The right to private defense is essential but since the ambit is so wide it is hard to decide whether the act was actually done in good faith and in the exercise of self-defense rather than malice or with the intention to cause harm.
Edited by Pragash Boopal
Approved & Published – Sakshi Raje
Reference
[i] Vishal Saurav, Law for Self-Defense in India, xboom, (September 1, 2019, 8:02 PM), https://www.xboom.in/law-for-self-defense-in-india/.
[ii] The Indian Penal Code, 1860, No. 45, Acts of Parliament, 1992.
[iii] The Indian Penal Code, 1860, No. 45, Acts of Parliament, 1992.
[iv] Thangavel v State, 1981, Cri. L.J. 210.
[v] The Indian Penal Code, 1860, No. 45, Acts of Parliament, 1992.
[vi] Jassa Singh v State of Haryana, Crim Appeal No. 1404-05 of 1999.
[vii] The Indian Penal Code, 1860, No. 45, Acts of Parliament, 1992.
