Explainer | Is It Legal to Kill in Self-Defence?: The Right of Private Defence

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The Right of Private Defence is a significant legal principle enshrined in the Indian Penal Code (IPC) ( Now the Bhartiya Nyaya Sanhita,2023) granting individuals the authority to protect themselves, their property, and others from immediate danger or unlawful aggression.This fundamental tenet of Indian criminal law brings about the inherent right of individuals to defend their lives, freedoms, and possessions when confronted with imminent threats.

Jeremy Bentham, a renowned philosopher, highlighted the significance of private defence by stating:

“The right to self-defence is absolutely indispensable. The vigilance of magistrates can never fully substitute for an individual’s own watchfulness. The fear of the law can never deter wicked individuals as effectively as the fear of collective and personal resistance. To strip away this right is, in essence, to become an accomplice to every evil person.”

HISTORY OF RIGHT OF SELF DEFENCE

The concept of self defence traces its origins to ancient jurisprudence and societal norms, where individuals possessed an instinctive entitlement to protect themselves and their belongings from external threats. This survival instinct gradually evolved into formal legal codes and customary practices across diverse civilizations.

In the Indian context, the explicit acknowledgment of the right to private defence became evident with the codification of the IPC during the British colonial era in the 1860s.

The self-defence provisions within the IPC were designed to regulate and structure the exercise of this inherent right within a legal framework. While the IPC has since undergone amendments and reinterpretations, the essence of the right to private defence remains a cornerstone of Indian substantive criminal law.

The right of private defence is guided by two fundamental principles:

1. Self-Defence: Every individual has the right to protect themselves, their property, and the lives and possessions of others from harm or threats. This right can only be exercised against the aggressor.
2. Exclusion of Aggressors: This right does not extend to individuals who initiated the aggression, as they cannot claim self-defence for their own unlawful actions.

In essence, private defence acts as a safeguard for situations where immediate assistance is unavailable. It empowers individuals to take necessary measures to protect themselves and their property, ensuring their safety and well-being.

NATURE OF THE RIGHT OF PRIVATE DEFENCE

The foremost duty of an individual is self-preservation. In every free nation, fostering the right of self-defence among its citizens is essential. This right is recognized universally across legal systems, though its scope varies inversely with the state’s capacity to safeguard the lives and property of its citizens. While the primary responsibility of protecting individuals lies with the state, no state, regardless of its resources, can assign a law enforcement officer to monitor every potential wrongdoer. Therefore, the state grants its citizens the right to defend themselves and their property when necessary.

However, this right is conditional;

it cannot be exercised if there is sufficient time to seek protection from the police or relevant authorities.

It depends entirely on the wrongful or seemingly wrongful nature of the act being attempted. If the apprehension of danger is genuine and reasonable, the right remains valid even if the perception is later proven to be mistaken. Furthermore, any act carried out in the legitimate exercise of this right is not considered an offence and does not give rise to a counterclaim of private defence.

RIGHT OF PRIVATE DEFENCE UNDER INDIAN PENAL CODE,1860

Sections 96 to 106 of the Indian Penal Code 1860 constitute the legal framework governing the right of private defence concerning both individuals and their property. These provisions allow individuals to employ necessary force against assailants or wrongdoers in defence of their own person or possessions, as well as to protect others’ bodies and properties when immediate assistance from law enforcement is unavailable.

Under these sections, individuals are shielded from legal liability for their actions taken in the exercise of private defence:

• Section 96: Defines the general right to private defence, stating that everyone has the right to defend themselves or others against any act that causes a reasonable fear of death or serious bodily harm.
• Section 97: It says that the right includes the use of action that is proportionate to the harm to repel the assault.
• Section 98: Addresses the right to private defence against the actions of a person who is insane, intoxicated, or in any other comparable state.
• Section 99: Defines actions that are not subject to private defence.
• Section 100: Addresses circumstances in which the right to private bodily defence goes to inflicting death. 
• Section 101: This section addresses circumstances in which the right to private bodily defence stretches to inflicting harm other than death. It says that such action may be used when there is a reasonable fear of grave harm and the individual exercising the right of private defence has no other way of escaping.
• Section 102: Provides for the establishment and maintenance of the right to private property defence. 
• Section 103: Lays down circumstances in which the right to private property defence stretches to inflicting death. 
• Section 104: Addresses circumstances in which the right to private property defence stretches to inflicting harm other than death. 
• Section 105: This section addresses the establishment and maintenance of the right to private defence of one’s person and property. 
• Section 106: Deals with the right of private defence against a deadly assault when there is a risk of harm to an innocent person. 

1. Section 97 of IPC, 1860

Section 97 recognizes that every individual has the right to protect themselves and allows the use of force to safeguard their own body or the body of another person. This also extends to defending against any offences affecting the human body.

Similarly, a person has the right to protect property—whether movable or immovable, their own or someone else’s—against offences such as theft, robbery, mischief, criminal trespass, or attempts to commit such acts.

The provisions of Section 97 are subject to the limitations outlined in Section 99.

Restrictions to the Right of Private Defence

The plea of private defence is carefully scrutinized to prevent its misuse by criminals seeking exemption. All provisions of right of private defence are governed by Section 99 of the IPC. This section outlines key restrictions, ensuring the right is exercised responsibly and within limits.

The restrictions to the right of private defence as per section 99 of the Indian penal code are as follows:

1. Acts by Public Servants in Good Faith
   • A public servant performing duties in good faith and within the scope of their office cannot be held liable for causing apprehension or harm, provided the act is lawful and executed in the course of duty.
2. Acts under Direction of Public Servants
   • Individuals acting under the lawful direction of a public servant in good faith are similarly protected.
3. Availability of Public Authorities
   • The right of private defence cannot be exercised when there is adequate time to seek protection from public authorities. In such cases, individuals must approach law enforcement first. The protection granted to public servants is not absolute and is subject to the following conditions:

• The act must be performed in good faith.
• The act must be within the scope of the servant’s official duty.
• There must be reasonable grounds to believe the act was lawful.

CAN KILLING SOMEONE BY EXERCISING THE RIGHT OF PRIVATE DEFENCE BE JUSTIFIED

The general rule is that it is not justified to kill someone in any circumstance , however the right of private defence , gives us the exception to cause death while exercising the Right of Private defence, in certain circumstances, which are elucidated under Section 100 of the Indian Penal Code , 1860 ( Now , Section 38 of the Bhartiya Nyaya Sanhita,2023)

Under these circumstances, the defender can cause the death of the offender:

1.When there is an assault that reasonably causes the apprehension that death will be the consequence of such assault.

In the case of Deo Narain vs State of Uttar Pradesh, SC held that, where the lathi blows were aimed at a vulnerable part of the body like the head, then the victim was justified in using his spear to defend himself and as a result causing the death of the deceased.

2.When there is an assault that reasonably causes the apprehension that grievous hurt will otherwise be the consequence of such assault

3. When there is such assault which is with the intention of committing rape;

4. When there is assault with the intention of gratifying unnatural lust;

5. When there is assault with the intention of kidnapping or abducting; Sections 360 and 361, and 362 define kidnapping and abduction respectively.

6. When there is assault with the intention of wrongfully confining a person when he reasonably believes that he will be unable to have recourse to the public authorities. Section 340 of IPC 1860 defines wrongful confinement.

7.When there is an act of throwing or administering acid or an attempt to throw or administer acid which may cause that grievous hurt

So, basically, the right of private defence of causing death or killing someone can be very well exercised , when there is an apprehension of death or grievous hurt or an apprehension of an assault of causing rape or kidnapping or abducting any person . It can also be caused , where there is an act of throwing acid or acid attack by the assailant. in all such cases it is justified to cause the death of the person causing such assault.

LEADING AND RECENT CASE LAWS ON SECTION 100 OF THE INDIAN PENAL CODE

1. Darshan Singh vs. State of Punjab (2010)

In this landmark case, the Supreme Court provided guidelines on the right to self-defence, emphasizing that individuals facing an imminent threat to life are not expected to act cowardly and may use lethal force if necessary. However, it warned against using the right to self-defence as a pretext for personal vengeance or recklessly endangering others’ lives. Key principles established in the judgment include:

1. Recognition of Self-Preservation: The right to self-preservation is a fundamental instinct acknowledged by criminal jurisprudence in all civilized societies.
2. Necessity of Averting Danger: The right applies only when an individual faces an immediate threat, not one of their own making.
3. Reasonable Apprehension: A reasonable apprehension of danger is sufficient to invoke the right of private defence; an actual offence need not occur.
4. Duration of Apprehension: The right begins with the onset of a reasonable apprehension and lasts as long as the danger persists.
5. Practicality in Defence: It is impractical to expect someone under attack to act with mathematical precision in their defence.
6. Proportional Force: The force used should not be disproportionate or excessive relative to the threat.
7. Material Evidence: Even if the accused does not explicitly plead self-defence, it can be considered if supported by evidence.
8. Burden of Proof: The accused is not required to prove the right of private defence beyond a reasonable doubt.
9. Unlawful Acts Only: The right of private defence is available only against unlawful or wrongful acts.
10. Lethal Defence: An individual in imminent and reasonable danger of life or limb can inflict harm, including death, on the assailant during an attack or direct threat.

Read The Judgement:

2.Jassa Singh vs. State of Haryana (2002)

The Supreme Court clarified that the right of private defence concerning property does not extend to causing the death of a person committing trespass on open land. It specified that only house trespass under circumstances likely to cause death or grievous injury falls under Section 103 of the IPC, permitting the use of lethal force.

3. C. Ganesh Narayan v. State of Karnataka (2024)

Recently , In the case of C. Ganesh Narayan v. State of Karnataka, Rajdeep Das filed an injunction suit against C. Ganesh Narayan and Vinod Hayagriv to prevent property alterations obstructing movement. Despite an interim injunction on March 28, 2023, prohibiting changes, a confrontation arose on April 7, 2023, when Hayagriv attempted to construct a wall, escalating further on April 29, 2023, during a physical altercation involving pepper spray allegedly used by Narayan and his wife.

Claiming self-defence under Section 100 of the IPC, the petitioners argued the spray was necessary due to property interference. However, the Karnataka High Court refused to dismiss the charges, stating there was no imminent danger to justify private defence.

Justice M Nagaprasanna observed that:

“The use of pepper spray as private defence is dangerous, as prima facie there was no imminent threat or danger caused to her life. Therefore, the case at hand would require investigation in the least.

The Court observed that there is no determination by law in this country regarding usage of pepper spray being a dangerous weapon, but referred to the U.S. case People v. Sandel (2018), which deemed chemical sprays dangerous. The court ruled the case warranted further investigation.”

Read the Judgement

In conclusion, the right of private defence, as set out in the Indian Penal Code (now replaced by the BNS), is a key part of protecting an individual’s life and property. It allows people to defend themselves and their belongings from unlawful threats or attacks.

It’s important to understand that private defence is meant to protect, not to punish. It should never be used for revenge or retaliation. People must be careful and use only the necessary force to protect themselves, making sure it is not excessive or out of proportion to the threat.

This right is not available to aggressors, meaning it can only be used by someone who is defending themselves or others. Section 98 of the IPC also extends the right of private defence to those who may not be fully responsible for their actions, such as those who are intoxicated or mentally impaired.

While the right of private defence allows people to protect themselves and their property, it must be used responsibly and within legal limits. It is important to remember that killing someone in self-defence is not justified unless absolutely necessary. Under the rules of Section 99 and 100 of the IPC (now Sections 37 and 38 of the BNS 2023), individuals must make sure that their actions are reasonable and only as much as needed to stop the threat.

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