“War, except in self-defense, is a failure of moral imagination.”
– Bill Moyers
In layman’s language, it refers to the use of otherwise unlawful actions in order to protect oneself or any other individual, to protect property or to prevent any other crime. Section 96 to 106 of Indian Penal Code 1860 contains the plans regarding the right of private defense available to every citizen of India. This right can only be utilized in case of overhanging danger and state aid or help is not possible. This right has basically evolved with the time by judgments and decisions of the SC of India. One of the most essential principles of private defense is the ‘reasonableness’ of the defense used. There are various conditions as well as exceptions to this right and will be stated in the paper. Some remedies are also available in case of misuse of this right according to the maxim ‘ubi jus ibi remedium’ that is where there is a right there is a remedy.
Identification of Issues
• The right to private defense is open only when recourse to public authorities is not convenient to the person.
• The extent of the exercise of the right is not subject to the extent of actual danger but on the reasonableness of the apprehension of the danger.
• Misuse of the right of private defense.
• The burden of proof in event of private defense.
• Reasonableness of the defense used.
Objectives and scope of research
• To study the right of Private defense possible under section 96 to 106 of Indian Penal Code 1860.
• To investigate various necessities, limitations and exceptions to this right and its applicability in Indian as well as other legal systems.
• To study the judicial perspective of private defense and examine it.
Research methodology followed by me is purely doctrinal and does not involve an empirical approach. My research is based on the authoritative texts. The sources for the completion of this commentary will be both primary and secondary. Primary to the extent that the books will be referred. Data will be collected from judgments and legislation. Secondary resources such as the World Wide Web and articles published therein will also be made use of.
• The concept of Private defense in Indian Legal system and in other legal systems
• Judicial Perspective and leading cases
It is a right open to every citizen of India to protect themselves from any external force that can result in any harm or injury. In layman’s language, it is basically a right of self-defense. It is discussed in the sections 96 to 106 of Indian Penal Code 1860.’Nothing is an offense which is done in exercise of the right of private defense’- It means any harm was done or injury caused to any person in the course of protecting himself from the external force or harm is not an offense as per Indian Penal Code 1860.
The right of Private defense has developed in modern India but initially, it was proposed by an ebullient Macaulay 150 years ago in his draft code with the ambitious task of empowering a “manly spirit amidst the natives or locals. An ideal Indian in case of any risk or danger would continue and not be reluctant to protect his own body or property, or that of another. He would react with careful power to avoid certain harms and injuries even to the degree of causing the death of someone.
In most common language it mentions the use of generally or otherwise unlawful actions in order to preserve oneself or any other individual, to protect property or to prevent any other crime. Simply it can be termed as an action done in the progression of self-protection. According to Article 51(a)(i) of Indian Constitution, the State is having a fundamental duty of the state to protect public property and abjure violence. It designates that it is the fundamental duty of the state to protect its citizens and their property from any harm, and in case the aid or help of state is not available and the danger is overhanging and is inevitable at the moment then the person is authorized to use his force to protect himself from any harm or injury. The term private defense is not properly defined anywhere in the penal code, it has generally grown and evolved over the years by the judgments of the various courts. The main motive behind providing this right to every citizen was to remove their hesitation in taking any action to guard themselves due to the fear of prosecution.
Self-help is the 1st principle that is, it is the first duty of a person to help himself. Citizens of every free country should be rendered with the right of private defense in order to shield themselves from any imminent danger at the time when the state aid is not available or possible. This right should be studied with the duty of the state to protect its citizens as well as their property. But no state, no matter how much rich it is or how large are its resources can afford to deploy a policeman for each and every citizen to protect themselves from any external harm or injury. So in order to fulfill its fundamental duty, it has given this authority to the citizens itself, that they are authorized by the state to take the law in their own hands if it’s the matter of their self-defense. While practicing this right one thing should be taken into consideration that the right of private defense can only be utilized if there is no time to call the police or no help can be provided by the state authorities in the given time that is, aid from the state is not available. Any unlawful act committed by any person in course of self-defense is not considered as an offense and does not, therefore, give rise to any right of private defense in return. The morality is not dependent on the actual criminality of the person resisted. It depends solely on the wrongful or apparently wrongful character of the act attempted, if the fear is real and reasonable, it makes no difference that it is mistaken.
The scope of Private Defence
Sec 97 of IPC asserts that every citizen is having this right subject to certain restrictions (mentioned in sec 99) to protect his own body or body of any other person, against; any offense affecting to the human body; the property whether immovable or movable, of himself or of any other person, against any act, which is an offence falling under the definition of robbery, theft, mischief, criminal trespass or which is an attempt to commit theft, robbery, mischief or criminal trespass.
This implies that Self-help is the first principle that is, it is the duty of a person to help himself and then begins a social duty to help other members of the society. The social duty arises out of Human sympathy to protect others and their property.
As per section 98 of IPC when an act which would differently be a certain offense, is not that offense, by reason of the youth, the want of maturity of understanding, the unsoundness of mind or the drunkenness of the person doing that act, or by reason of any misunderstanding 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 was that offense.
And according to section 106 of penal code, if in the exercise of the right of private defence against an attack which reasonably causes the apprehension of death, the defender be so situated that he cannot effectually exercise that right without risk or harm to an innocent person, his right of private defense extends to the running of that risk.
The size of the right of private defense and the limitations in the exercise of this right may be summarized as below: —
(1) There is no right of private defense against an act which is not in itself an offense under this Code. This does not cover the case of exceptions.
(2) The right begins as soon as and not before a reasonable fear of danger to the body arises from an attempt or threat to commit some offense. The right is availed of only against a danger imminent, present and real.
(3) It is defensive and not a punitive or retributive right. In no event, the right extends to the dispensing of more harm than it is necessary to inflict for the purpose of defense, though reasonable allowance should be made for the bona fide defender.
(4) The right extends to the killing of an actual assailant when there is a plausible and imminent danger of the atrocious crimes enumerated in the 6th clause of Section 100.
(5) There must be no safe or plausible mode of escape by retreat, for the person confronted with an impending fear to life or of grave bodily harm except by inflicting death on the assailant.
(6) The right being, in essence, a defensive right, does not accumulate and avail where there is time to have recourse to the protection of public authorities.
It was admitted as a right for self-protection to every citizen of India but it is often misused by many people by operating it as an excuse of committing any crime or offense. It is a right given for defense and not for vengeance and may not be used as a measure of taking revenge. This right of private defense is not available against any lawful action that is when the actions of a person are lawful and not appearing in any offense the right of private defense can’t be utilized. Seldom some people inspire others to act in aggression and use it as an apology for the harm caused and even murder. But this can’t be used in a situation where the aggression was shown by the accused only. It is treated as a license to kill by many people as the IPC is not elucidated on the situation where an attack may be provoked as a pretense of killing. But the court has asserted that the private defense is available only to the persons who act in good faith and don’t misuse it is as an excuse to justify their unlawful act or act of aggression. it was further declared by the court “while providing for the right of private defense, the penal code has surely not devised a mechanism whereby an attack may be provoked as a pretense for killing”.
The Right of Private Defence in other legal systems:
The right of Private defense in the American legal system is quite similar as in Indian legal system.
Two points of most value in American legal system:
- The principle of reasonableness that is the right commences as soon as and not before a reasonable fear of danger to the body arises from an attempt or threat to commit some offense. The right is availed of only against a danger imminent, present and real.
- Force should be proportionate to the harm that is only that amount force should be used that is necessary to avoid the threatened injury or harm.
In the English legal system, the right of private defense is granted under Criminal law act 1967. Sec 3(1) of this act states that A person may use such violence as is reasonable in the circumstances in the prevention of crime, or in effecting or assisting in the lawful arrest of offenders or suspected offenders or of persons unlawfully at large.
Sec 3(2) – Subsection (1) above shall replace the rules of the common law on the question when force used for a reason mentioned in the sub-section is justified by that purpose.
In the English Legal system, this right helps in whole discharge or acquittal of a defendant as the force used by him wasn’t illegal. But whether he should be acquitted or not depends on the decision of the court. The court analyzed the reasonableness of the defense used by him. The court analyses:
- Reasonableness of the defense i.e. the right commences as soon as and not before a reasonable apprehension of danger to the body arises from an attempt or threat to commit some offense. The right is availed of only against a danger imminent, present and real.
- Injuries caused by the accused
- Injuries caused to the accused
- The accession of a threat to his safety
According to the jury, a person should act in good faith and don’t try to misuse this right by using it as an excuse of justifying their legal action and get acquitted for their offense. Like the Indian legal system, the right of private defense in the English legal system has evolved over the years with the judicial decisions and judgments.
In Beckford vs. the Queen, it was held that
|A defendant is entitled to use reasonable force to protect himself, others for whom he is responsible and his property. It must be reasonable.|
In Lord Morris in Palmer v R stated the following about someone confronted by an intruder or defending himself against attack:
|If there has been an attack so that defense is reasonably necessary, it will be recognized that a person defending himself cannot weigh to a nicety the exact measure of his defensive action. If the jury thought that in a moment of unexpected anguish a person attacked had only done what he honestly and instinctively thought necessary that would be the most potent evidence that only reasonable defensive action had been taken||”|
In case of Palmer v The Queen, on appeal to the Privy Council in 1971 the concept of reasonable force was defined:
|The defense of self-defense is one which can be and will be readily understood by any jury. It is a straightforward conception. It involves no abstruse legal thought. … Only common sense is needed for its understanding. It is both good law and good sense that a man who is attacked may defend himself. It is both good law and good sense that he may do, but may only do, what is reasonably necessary. But everything will depend upon the particular facts and circumstances. … It may in some cases be only sensible and clearly possible to take some simple avoiding action. Some attacks may be serious and dangerous. Others may not be. If there is some relatively minor attack it would not be common sense to permit some action of retaliation which was wholly out of proportion to the necessities of the situation. If an attack is serious so that it puts someone in immediate peril then immediate defensive action may be necessary. If the moment is one of crisis for someone in imminent danger he may have [to] avert the danger by some instant reaction. If the attack is all over and no sort of peril remains then the employment of force may be by way of revenge or punishment or by way of paying off an old score or may be pure aggression. There may no longer be any link with a necessity of defense… If a jury thought that in a moment of unexpected anguish a person attacked had only done what he honestly and instinctively thought was necessary that would be most potent evidence that only reasonable defensive action had been taken.||”|
Judicial Perspective and leading cases
The creators of Indian penal code left this concept of Private defense in an ‘imperfect state’ that is, the term private defense is not properly defined in the provisions of the penal code, it normally evolved or emerged over the years with judgments and decisions of the courts. The provisions were framed by the framers of the code in a way that such provisions can be interpreted and analyzed by the judiciary and can be modified according to different situations and cases to preserve the principle of fairness while providing justice to the people of our country i.e. they left it in a flexible state. And also justice can’t be sacrificed on account of cost, speed, and expediency. But their plan was only partly fulfilled as the local judiciary acts in a bit strict manner in comparison to higher judiciary while interpreting this term private defense and this difference between the judicial interpretation and the intention is mentioned in the sections 100 and 102 of the penal code. The Court described and analyzed the right of private defense in various landmark cases.
1. Munshi ram and others vs. Delhi administration
Though the appellants in their statement under S.342 Cr.P.C denied having been present at the scene of occurrence or having created injuries to anyone, the plea taken on their behalf at all stages was one of private defense. Their case is that their relation Jamuna (DW3) was the resident in the land for over 30 years. His tenancy was never terminated. He had raised crops in the field in question. There was no delivery on June 22, 1962. If there was any delivery as alleged by the prosecution, the same was without the authority of law and such was no effect. Hence, Jamuna continued to be in possession of the property even on July 1, 1962. On the day prior to the occurrence, PWs 17 and 19 tried to intimidate Jamuna to come to terms with them and to peacefully deliver the possession of the property to them. But he put off the problem of compromise by pleading that he was going out of the station and the question of compromise could be considered after his return. With a view to forcibly assert their right to the property, the complainant-party came to the field in a body on July 1, 1962with a tractor. At that time PW 19 was armed with an unlicensed pistol. It is at this stage that the appellants who are near relations of Jamuna went on the field and asked the complainant party to clear out of the field. When they refused to do so, they pushed them and consequently used minimum force to throw them out of the field. On the basis of the above facts, it was urged on behalf of the appellants that they were not guilty of any offense.
The law relating to defense of property is, set out in S.97 IPC, which states that every person has a right, subject to the restrictions contained in s.99, to defend-First-his own body, and the body of any other person, against any offence affecting the human body; Secondly- 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. Section 99 of the code puts down that there is time to have recourse to the protection of public authorities. It moreover lays down that the right of private defense in no case extends to the inflicting of more harm then it is necessary to inflict for the purpose of defense.
It was urged on behalf of the prosecution that even assuming that Jamuna was in possession of the field in view of the delivery that had taken place on June 22, 1962, he and his relations had enough time to have recourse to the protection of public authorities and hence the appellants couldn’t claim the right of private defense. The case of Jamuna and the appellants was that they were ignorant of the alleged delivery on June 22, 1962. Admittedly neither Jamuna nor any of the appellants were present at the time of delivery. Nor is there any evidence on record to show that they were aware of: the same. Moreover, as seen earlier, the conversation that PWs 17 and 19 had with Jamuna on the day prior to the occurrence, proceeded on the basis that Jamuna was still in possession of the field. Under these circumstances when the complainant party invaded the field on July 1, 1962, Jamuna’s relations must have been naturally taken by surprise. Law does not require a person whose property is forcibly tried to be controlled by the invaders to run away and seek the protection of the authorities. The right of private defense serves as a social purpose and that right should be liberally explained. Such a right not only will be restraining influence on bad characters but it will support the right spirit in a free citizen. There is nothing more degrading to the human spirit to run away in the face of peril.
2. Darshan Singh v. the State of Punjab
The SC laid down Guidelines for Right Of Private Defence for Citizens. It saw that a person cannot be expected to act in a cowardly manner when faced with an imminent threat to life and has got every right to kill the aggressor in self-defense. A bench involving Justices Dalveer Bhandari and Asok Kumar Ganguly, while acquitting a person of murder, said that when establishing Section 96 to 106 of the IPC, the Legislature clearly meant to arouse and encourage the spirit of self-defense amongst the citizens, when faced with grave danger.“The law doesn’t require a law-abiding citizen to behave like a coward when faced with immediate unlawful aggression. As frequently observed by this court, there is nothing more degrading to the human spirit than to run away in face of danger. The right of private defense is thus intended to serve a social purpose and deserves to be fostered within the prescribed limit.”
The court laid down 10 guidelines where the right of self-defense is available to a citizen but also hinted that in the disguise of self-defense, one cannot be allowed to endanger or threaten the lives and properties of others or for the purpose of taking personal revenge. The apex court concluded by saying that a person who is under imminent threat is not expected to use force exactly required to repel the attack and his behavior cannot be weighed on “golden scales.”
The Court declared their legal position under the following 10 guidelines:
- Self-preservation is a necessary human instinct and is duly recognized by the criminal jurisprudence of all civilized countries. All free, democratic and civilized countries acknowledge the right of private defense within certain reasonable limits.
- The right of private defense is available only to one who is suddenly faced with the necessity of averting an impending danger and not of self-creation.
- A merely reasonable apprehension is enough to put the right of self-defense into operation. In other words, it is not necessary that there should be an actual commission of the offense in order to give rise to the right of private defense. It is enough if the accused apprehended that such an offense is contemplated and it is likely to be committed if the right of private defense is not exercised.
- The right of private defense commences as soon as a reasonable apprehension arises and it is co-terminus with the duration of such apprehension.
- It is unrealistic to expect a person under assault to modulate his defense step by step with any arithmetical exactitude.
- In private defense, the force used by the accused ought not to be wholly disproportionate or much greater than necessary for the protection of the person or property.
- It is well settled that even if the accused does not plead self-defense, it is open to considering such a plea if the same arises from the material on record.
- The accused need not prove the existence of the right of private defense beyond a reasonable doubt.
- The Indian Penal Code confers the right of private defense only when the unlawful or wrongful act is an offense.
- A person who is in imminent and reasonable danger of losing his life or limb may, in an exercise of self-defense, inflict any harm on his assailant either when the assault is attempted or directly threatened.