According to the BNS, people have the legal right to defend themselves, other people, or their property against impending danger or damage. It acknowledges that in some situations, before authorities can step in, urgent action must be done to stop illegal activities, such as assault or theft. To guarantee that it is used appropriately, this privilege is, nevertheless, not unrestricted and is governed by a number of limitations. The scope, restrictions, and circumstances in which a right to private defense may be used are outlined in Sections 34 to 44 of the BNS, striking a balance between the preservation of individual freedom and the avoidance of abuse. (EARLIER THE RIGHT OF PRIVATE DEFENCE WERE COVERED BETWEEN SECTION 96-106)
Section 34: Acts Done in Private Defence
An act is not considered an offence if it is done in the exercise of the right of private defence. This is a important principle that ensures individuals can protect themselves or others.
Section 35: Defence of Body and Property
Every individual has the right to defend:
- Their own body and the body of others from offences that affect the human body.
- Their property (movable or immovable) or someone else’s property from acts like theft, robbery, mischief, or criminal trespass.
Section 36: Defence Against Acts of Youth, Intoxication, or Unsound Mind
If a person is of unsound mind, under intoxication, or lacks maturity, their acts may not be offences. However, others have the right to defend themselves against such acts as if they were offences.
Illustration: If a person of unsound mind attempts to kill another, the latter has the right to defend themselves as they would against a sane attacker.
Section 37: Restrictions on Right of Private Defence
The right to private defence is restricted in specific cases:
- No defence against acts by public servants done in good faith.
- The harm caused in defence should not exceed what is necessary for protection.
Section 38: Defence Leading to Death
A person can voluntarily cause death in self-defence if:
- The assault reasonably causes fear of death or grievous hurt.
- The assault intends to commit rape, unnatural lust, kidnapping, or wrongful confinement.
Section 39: Defence Causing Harm Other Than Death
If the offence does not fall under the severe categories mentioned in Section 38, one may still cause harm to the attacker, but not death.
Section 40: When the Right Begins and Ends
The right to private defence begins when there is a reasonable apprehension of danger and continues as long as the danger persists.
Section 41: Defence of Property Leading to Death
A person can voluntarily cause death while defending property in cases of:
- Robbery.
- House-breaking at night.
- Mischief by fire or explosives in human dwellings.
- Theft or trespass that may cause fear of death or grievous hurt.
Section 42: Defence of Property Causing Harm Other Than Death
If the threat is not serious (as mentioned in Section 41), the defender can cause harm but not death.
Section 43: Duration of the Right of Defence for Property
- Defence against theft continues until the thief retreats or the property is recovered.
- Defence against robbery continues as long as the fear of death or injury exists.
- Defence against criminal trespass or mischief continues while the offender is committing the act.
Section 44: Defence Against Deadly Assault With Risk to Innocent Persons
If a defender cannot protect themselves without the risk of harming innocent people, they are not guilty if they unintentionally harm an innocent person while defending themselves.
Illustration: If a mob attacks someone and they cannot defend themselves without risking harm to nearby children, they can act in self-defence, even if it results in harm to the children.
| Section No. | Description | Example/Illustration |
|---|---|---|
| 34 | No act is an offense when done in exercise of the right of private defence.(EARLIER U/S 96) | – |
| 35 | Right of every person to defend their own body, others, or property against offenses like theft, robbery, mischief, or criminal trespass.(EARLIER U/S 97) | – |
| 36 | Right of private defence applies even against acts of persons who are insane, immature, intoxicated, or acting under misconception.(EARLIER U/S 98) | (a) Z, an insane person, tries to kill A. A can defend himself as if Z were sane. (b) A legally enters a house at night. Z, mistaking A for a thief, attacks him. A has the right to defend himself. |
| 37(1) | No right of private defence against an act: (a) done by a public servant in good faith; (b) under orders of a public servant; (c) where there is time to seek public authority’s protection.(EARLIER U/S 99 (1)) | – |
| 37(2) | The right of private defence must not cause more harm than necessary.(EARLIER U/S 99 (2)) | – |
| 38 | Right to cause death or harm if the assault causes a reasonable apprehension of: (a) death, (b) grievous hurt, (c) rape, (d) unnatural lust, (e) kidnapping/abduction, (f) wrongful confinement, (g) acid attack. (EARLIER U/S 100) | – |
| 39 | Right to cause harm (but not death) in private defence if the offense doesn’t fall under Section 38.(EARLIER U/S 101) | – |
| 40 | Right of private defence of the body begins as soon as there is a reasonable apprehension of danger and continues as long as the danger exists.(EARLIER U/S 102) | – |
| 41 | Right to cause death or harm to the wrongdoer in defence of property in cases of: (a) robbery, (b) house-breaking after sunset, (c) mischief by fire or explosive, (d) theft, mischief, or trespass under circumstances causing reasonable fear of death or grievous hurt.(EARLIER U/S 103) | – |
| 42 | Right of private defence of property does not extend to causing death if the offense is not described in Section 41 but does extend to causing harm other than death.(EARLIER U/S 104) | – |
| 43 | Right of private defence of property starts with apprehension of danger and continues: (a) for theft, until retreat or property recovery; (b) for robbery, as long as the offender poses harm; (c) for criminal trespass/mischief, as long as the act continues; (d) for house-breaking at night, until the trespass continues.(EARLIER U/S 105) | – |
| 44 | The right of private defence against deadly assault extends to causing harm to innocent persons if the defender cannot act otherwise.(EARLIER U/S 106) | A is attacked by a mob and fires in self-defence, harming a child mingled with the mob. A is not at fault. |
The laws governing the right to private defense show a careful balance between allowing people to protect themselves and averting needless or disproportionate injury. These parts give the legal right to defend oneself, but they also set reasonable boundaries to make sure that the amount of force used is appropriate for the threat being faced. The BNS guarantees the preservation of the law and the fundamental rights of self-preservation by imposing particular criteria and restrictions that limit the use of this right to those situations that are absolutely required.
SOURCE – PRSIndia
READ ALSO – GENERAL EXCEPTIONS UNDER BNS (SECTION 14-33)
