Overview: RIGHT TO PRIVATE DEFENSE : THE JUDICIAL INTERPRETATION

INTRODUCTION

The principal object of the state to ensure the safety and liberty of its citizens and provide them with the rights that aid in this process. In the wake of circumstances, it becomes crucial for the state to provide the citizens with the laws that allow an individual to save and protect himself against any kind of apprehension of danger to his life or his property. This precept demonstrates the requisite of the Right to Private Defense in Indian laws. The democratic nature of the nation allows this law to sustain as a right that is not punitive in nature but preventive.

THE CONSTITUTIONALITY OF THIS RIGHT

Be that as it may, this right is provided to the citizens of India under Section(s) 96 – 106 of the Indian Penal Code but it has gained a foothold with compliance with the basic structure of the constitution of India.

The chief goal of a state is to enact a law that performs in the best interest of its citizens and which protects an individual’s integrity and dignity and a state that lacks these would go against the theory of balancing rights.

A constitution of a country is the primary code that is relied upon in events of conflicts and it is the elementary resort of the state to derive the lead for the instances of a state’s defects as well as the state’s response to various other laws. All the various other laws that we have in the country are intended to comply with the constitution’s basic structure and follow the rule of law. The Right to Private Defense is the only right that enables or allows an individual to take the law into his hands and cause the death of another person. Needless to say, this comes with restrictions and interpretation by the judiciary to avoid ambiguity.

JUDICIAL INTERPRETATION

Self-Help is the primary principle of the Criminal Laws of India and the right of defense is absolutely necessary. An individual is allowed to cause homicide only if he has a reasonable apprehension of danger to his life, his property, someone else’s life, and someone else’s property as provided by Section 96 and Section 97 of the Indian Penal Code. In such cases, the extent of an individual to act is also subject to the limits set by the laws, the constitution as well as the judiciary. It was held in Darshan Singh v. State of Punjab that the Right to Private Defense should only be exercised in the following six descriptions: -

• Such an assault should cause an apprehension of death of the person as a consequence;
• Such an assault should cause an apprehension of grievous hurt;
• An assault with an intention to commit rape;
• An assault with an intention of kidnapping or abduction;
• An assault with an intention of gratifying unnatural lust;
• An assault with an intention of wrongful confinement of a person.

It was stated by a full bench of the Orissa High Court that the defense of an individual and his property of every other individual in a civil society is the accountability of the state and it casts a duty on every person to seek the aid of the machinery of the state at the times when he is encountered with the apprehension of danger. He is allowed to exercise the Right to Private Defense only in the cases where the state assistance is not available instantly and it leaves no other alternative for the individual except for inflicting force on the other in order to protect his life or his property. Therefore, the availability of this right is subject to the urgency of the situation and not just the desire of a person to inflict force on the other.

The court in Puran Singh & Others V. The State of Punjab observed that this right does not stand a place to be exercised where there’s enough time for the state machinery to arrive or there is no reasonable apprehension of death or even grievous hurt. One of the most important postulates is that the person is not allowed to use more than the necessary force required. If he does so, it calls for the invalidation of the use of this provision by a person for defense. The counterattack needs to limit itself to the inevitable force. This right is available to the citizens against the police as well. If a police officer acts outside his authority and causes fear of danger, a civilian is allowed to protect himself by using necessary force against the police.

CONCLUSION

Self-protection is the most natural human instinct and criminal jurisprudence acknowledges it. Every person has the right to defend his own body as well as the body of another person and the law allows this right to be available to exercise as soon as the apprehension of danger arises. Therefore, the law of Private defense plays a great role in encouraging the people of the country to preserve themselves and others while acting according to the law and while keeping in mind the preventive, not punitive nature of this law.

FAQs

• Who has the onus to prove the appropriate use of this right?

The onus to prove this right is upon the person who has exercised it and wants to plead it but, in some cases, an accused is subject to acquittal on the plea of this right even though he hasn’t pleaded it.

• Is a person allowed to cause grievous hurt to a person in order to protect someone else or his property?

Yes, a person is allowed to protect his life, his property, someone else’s life, and someone else’s property while exercising the Right to Private Defense.

[Author Anjali Chaudhary is a fifth-year Law student at Alliance School of Law. She has developed her interest in Criminology, Public Administration, and Penology]

[Edited by - Sakshi Arya]

Ontario Human Rights Commission, August 2005, “Balancing Conflicting Rights: Towards an analytical framework < http://www.ohrc.on.ca/en/balancing-conflicting-rights-towards-analytical-framework> accessed 09-Aug-2020

P.K. Pandey, Right to Private Defense in India, (2017) Vol 16 Law Exam Times (ISSN 2319-9121) < https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3502727> accessed on 09-Aug-2020

Jeremy Bentham, ‘Principles of Penal Laws’ volume 1, first published (1843)

Section 96, Indian Penal Code 1860, Things are done in private defence.—Nothing is an offence which is done in the exercise of the right of private defence.

Section 97, Indian Penal Code 1860, Right of private defence of the body and of property.—Every person has a right, subject to the restrictions contained in section 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, rob¬bery, mischief or criminal trespass.

Darshan Singh v. the State of Punjab, Cr. App. No. 1057 of 2002

State of Orissa v. Rabindranath Dalai and anr 1973 Crl LJ 1686 (Orissa)

Laxman Sahu v. State of Orissa 1986 (1) Supp SCC 555

Puran Singh & Others v. The State of Punjab (1975) 4 SCC 518

Deoman Shamji Patil v. The State AIR 1959 BOM 284