How is 'self defence' legally treated by the Indian constitution?

India Sep 07, 2021

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What is Self-defence?

The act of defending oneself or one’s property from harm by use of force is known as self-defence.

According to Bentham,an English philosopher, the right to self-defence is absolutely necessary as fear of the magistrates’ vigilance won’t ever add up to that of each individual resisting on one’s own behalf. He adds that taking away this right would make one the accomplice of all bad men.

Self-Defence in India

Sections 96-106 of the Indian Penal Code(IPC) provide the right to self-defence to the citizens and extend it to the life and property of oneself or anyone else creating an exception to criminal liability.

What exactly does the law state and means?

IPC’s Section 96  asserts that anything done exercising the right of private defence is not an offence. Section 97 grants every person the right to defend one’s or anyone’s body and property, movable or immovable, from any harm. The Indian and Common law does not state the need for any relationship between the defendant and the person being saved on the basis that one comes to help another at one’s own risk not requiring any prior relationship.

Section 98 doesn’t require mens rea or any intention or knowledge of wrongdoing stating that any act qualified certainly as offence regardless of the reason behind warrants the right of private defence as if it were a real offence. Therefore, despite the aggressor’s identity,  every person has the right to private defence

Section 99 somewhat restricts this right claiming that the force used should be reasonable, necessary, proportionate to, and not greater than the foreseeable danger; and that anything done against a public servant acting in good faith is not an act of self-defence.

What about life/death?

From section 99 onwards, the restrictions come into effect; especially for the voluntary cause of death. Sections 100 and 103 state that one can only get away with voluntarily causing death under immediate threat of death, rape, assault, kidnapping or any other situation with consequential death.

Sections 101 and 104 explicitly state that unless all provisions of Sections 100 and 103 are present, the death would amount to murder.

What if others are involved?

For such a case Section 106, unlike the previous ones, states if due to the situation one cannot defend themselves especially under the apprehension of death without risking harm to a bystander, the risk will be covered under the right to defend oneself.

When can one use this right?

IPC’s Section 102 and 105 both state that it happens when there is a reasonable apprehension of danger to one’s or another’s body and property respectively; continuing till the danger passes.

Conclusion

One needs to be extremely careful while exercising the right to defend and not go too overboard. For that, SC has continued to interpret the law in various ways keeping the boundaries intact. In Thangavel vs State, it expressed how the inherent right to self-preservation cannot hinder other’s right to life. In Jassa Singh vs State of Haryana and Jai Dev vs State of Punjab, SC held the right to voluntarily cause death only in case of trespassing of houses and that one cannot shoot who had run further away respectively.

However, these are technicalities and one should remember that the law exists to enable us to protect ourselves.

This article has been written by Ruchi Thakur for The Paradigm

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