Private defence is a right available to every citizen of India to protect
himself from any external force that may result in any harm or injury. In
layman's terms, it means using an otherwise illegal act to protect oneself or
another person, protect property, or prevent any other criminal activity.
Sections 96 to 106 of the Indian Penal Code, 1860 contain provisions relating to
the right of private defence, which is available to every citizen of India.
Citizens of every free country should have the right of private defence to
protect themselves from any imminent danger at a time when state aid is not
available or possible.
This right should be understood with the duty of the state to protect its
citizens as well as their property. It was granted as a right of self-defence to
every citizen of India, but it is often misused by many people by treating it as
an excuse for committing any crime or misdemeanour. Therefore, this right of
private defence is subject to certain restrictions and limitations. Although the
right of private defence has been granted to the citizens of India as a weapon
for their self-defence, it is often used by many people for evil or illegal
It is now the duty and responsibility of the court to examine whether the right
has been invoked in good faith or not. The extent of the exercise of this right
does not depend on actual danger, but instead on a reasonable suspicion of
danger. This right can be extended by the accused in certain circumstances, but
only to a certain extent that would not violate the right to private defence.
In layman's terms, it means using an otherwise illegal act to protect oneself or
another person, protect property, or prevent any other criminal activity.
Sections 96 to 106 of the Indian Penal Code, 1860 contain provisions relating to
the right of private defence available to every citizen of India. This right can
only be exercised in case of imminent danger and state support or assistance is
This law has essentially evolved over time through the judgments and decisions
of the Supreme Court of India. One of the most important principles of private
defence is the "adequacy" of the defence used. There are various limitations and
exceptions to this right which will be set out in the post. Some remedies are
also available in case of abuse of this right according to the principle "ubi
jus ibi remedium", that is, where there is a right, there is a remedy.
- The right to private defence is only available if the person in question
does not have the possibility to turn to public authorities.
- The extent of the exercise of the right does not depend on the extent of
the actual danger, but on the reasonableness of fear of danger.
- Abuse of the right to private defence.
- Burden of proof in private defence cases.
- Adequacy of defences used.
The right of Private Defence under IPCIntroduction
Every citizen of India has the right to protect himself from any external force
that may lead to any harm or injury. In layman's terms, it's basically the right
to self-defence. It is mentioned in Sections 96 to 106 of the Indian Penal Code,
1860. "Nothing is an offense which is committed in the exercise of the right of
private defence" - It means any harm done or injury caused to any person in the
course of his defence of external force or damage is not an offense under the
Indian Penal Code 1860.
The right of private defence has evolved in modern India, but was originally
proposed by the ebullient Macaulay 150 years ago in his draft code with the
aspirational task of strengthening "the manly spirit among the natives or
locals". An ideal Indian would endure in case of any risk or danger and would
not hesitate to protect his body or property or that of a stranger. He would
react with caution to avoid certain hurt and injury, even to the point of
causing death to someone.
In most common parlance, this means the use of generally or otherwise illegal
actions to protect oneself or another individual, protect property, or prevent
any other criminal activity. It can simply be termed as any action taken in the
course of self-defence. Under Article 51(a)(i) of the Constitution of India, the
State has a fundamental duty of the State to protect public property and to
It follows that the basic duty of the state is to protect its citizens and their
property from any harm, and in the event that the help or assistance of the
state is not available and the danger is imminent and unavoidable at the moment,
a person is entitled to use his force to protect himself from any harm or
The term private defence is not properly defined anywhere in the criminal code,
it has generally evolved and developed over the years through the judgments of
various courts. The main motive behind giving this right to every citizen was to
remove his hesitation in taking any measure (usually illegal) to protect himself
for fear of prosecution.
Self-help is the first principle, that is, it is man's first duty to help
himself. Citizens of every free country should have the right of private defence
to protect themselves from any imminent danger at a time when state aid is not
available or possible. This right must be understood as the duty of the state to
protect its citizens and their property. But no state, no matter how rich or how
great its resources, can afford to deploy police officers for every single
citizen to protect themselves from any outside harm or injury.
Therefore, in order to fulfil its basic duty, it has given this power to the
citizens themselves, that they are authorized by the state to take the law into
their own hands when it comes to their self-defence. One thing to consider in
exercising this right is that the right to private defence can only be exercised
if there is no time to call the police or assistance from the state authorities
cannot be provided at that time, i.e. assistance from the state. not available.
Any unlawful act committed by any person in self-defence is not considered a
criminal offense and therefore does not create any right of private defence in
return. The right is not dependent on the actual criminality of the person being
resisted. It matters only the illegal or apparently illegal nature of the
attempted act, if the arrest is real and reasonable, it does not matter that it
Scope of private defence
Section 97 of the IPC states that every citizen has this right subject to
certain limitations (stated in Section 99) to defend his own body or the body of
any other person; any offense affecting the human body; property, immovable or
movable, of himself or any other person against any act which is an offense
falling under the definition of robbery, theft, larceny, felony, or which is an
attempt to commit larceny, robbery, larceny, or a misdemeanour.
It follows that Self-help is the first principle, i.e. a person's duty to help
himself, and subsequently a social duty to help other members of society arises.
Social duty arises from human sympathy to protect others and their property.
Under Section 98 IPC, where an act which would otherwise be a certain offense is
not such an offense because of the youth, lack of maturity of understanding,
unsound mind or drunkenness of the person doing the act or because of any
misconception on the part of that person that every person the same right of
private defence against that act as he would have if the act were that crime.
And according to 106 of Indian Penal Code, if in the exercise of the right of
private defence against an attack reasonably apprehensive of death, the defender
is so situated that he cannot effectively exercise that right without risk or
injury to an innocent person, his right of private defence extends to taking
The extent of the right of private defence and the limitations on the
exercise of that right may be summarized as follows:
- There is no right to private defence against an act which in itself is
not a criminal act according to this Code. This does not apply to exception
- The right arises as soon as there is a reasonable fear of endangering
the body from an attempt or threat of committing a criminal act. The right
is used only against imminent, present and actual danger.
- It is a defensive right, not a punitive or retaliatory right. In no
event does the right extend to causing more harm than is necessary for the
purpose of defence, although reasonable allowance should be made for a bona
- The right applies to the killing of the actual assailant, if there is a
reasonable and immediate danger of the brutal crimes listed in the six
clauses of section 100.
- There shall be no safe or reasonable means of escape by retreat for a
person who is exposed to imminent danger to life or serious injury, except
by causing the death of the assailant.
- The right, which is essentially a defensive right, does not arise and
cannot be used when it is time to use the protection of public authorities.
It has been given as a right of self-defence to every citizen of India but it is
often misused by many people by considering it as an excuse to commit any crime
or offence. It is a right granted for defence, not for revenge, and cannot be
used as a measure of revenge. This right of private defence is not available
against any lawful act, i.e. if the person's conduct is lawful and does not lead
to any offence, the right of private defence cannot be exercised.
Sometimes some people provoke others into aggression and use it as an excuse for
causing harm or even murder. However, this cannot be used in a situation where
only the accused has shown aggression. Many people see this as a license to kill
because the IPC is not clear on the situation where an attack can be provoked as
a pretence to kill.
However, the court confirmed that private defence is only available to those who
act in good faith and do not use it as a pretext to justify their wrongdoing or
aggression. furthermore, the court stated that "while ensuring the right to
private defence, the criminal code certainly did not devise a mechanism by which
an attack could be provoked as a pretext for killing".
Right of private defence in other legal systems:American law
The right of private defence in the American legal system is very similar to the
Indian legal system
Two points of utmost importance in the American legal system:
- The principle of proportionality, i.e. the right arises as soon as, and
not before, there is a reasonable fear of endangering the body from an
attempt or threat to commit a crime. The right is used only against
imminent, present and actual danger.
- Force should be proportionate to the harm, ie only the amount of force
necessary to prevent imminent injury or harm should be used.
In the English legal system, the right to private defence is granted under the
Criminal Law Act 1967. Section 3(1) of that Act provides that a person may use
such force as is reasonable in the circumstances in preventing or committing an
offense or to assist in the lawful arrest of offenders or suspected offenders or
persons unlawfully at large.
Section 3(2) - Subsection (1) above supersedes the common law rules as to when
force used for a purpose mentioned in the subsection is justified for that
In the English legal system, this right helps in the complete discharge or
acquittal of the accused because the force he used was not illegal. Whether he
should be acquitted or not is up to the court. The court analyses the adequacy
of the defence used by it. The court analyses:
- Adequacy of defence, i.e. the right arises as soon as, and not before,
there is a reasonable fear of endangering the body from an attempt or threat
of committing a crime. The right is used only against imminent, present and
- Injuries caused by the accused
- Injuries caused to the accused
- The accession of a threat to his security
According to the jury, one should act in good faith and not try to abuse this
right by using it as an excuse to justify one's legal actions and be acquitted
of one's crime. Like the Indian legal system, the right of private defence in
the English legal system has evolved over the years with court decisions and
Beckford v The Queen  AC 130 Privy Council
The appellant was a police officer. He was issued with a shot-gun and ammunition
and sent with a number of other armed police officers to a house. According to
the appellant a report had been received from Heather Barnes that her brother
Chester Barnes was terrorising her mother with a gun. Heather Barnes, however,
denied that she had made a telephone call to the police or that her brother was
The appellant said that on arriving at the house, he saw a man run from the back
door with an object which appeared to be a firearm. As the police followed him,
the appellant stated that Barnes fired at the police, in response to this he
fired back, shooting and killing Barnes. In fact no gun was ever found. The
trial judge directed the jury:
"A man who is attacked in circumstances where he reasonably believes his life to
be in danger or that is in danger of serious bodily injury may use such force as
on reasonable grounds he thinks necessary in order to resist the attack and if
in using such force he kills his assailant he is not guilty of any crime even if
the killing is intentional."
The jury convicted him of murder (which carries the death penalty in Jamaica).
He appealed contending the judge was wrong to direct that the mistake needed to
be reasonably held.
The appeal was allowed and the conviction was quashed. The test to be applied
for self-defence is that a person may use such force as is reasonable in the
circumstances as he honestly believes them to be in the defence of himself or
Palmer (1971) AC 814 Privy Council
On appeal from the Court of Appeal of Jamaica
The appellant and two others were chased by three men after they stole some
ganja. The three men had sticks and stones. During the chase the appellant fired
shots. One of the men chasing them died of as a result of gun shot. The
appellant's case was that he had not fired the shot which killed the man
although the trial judge directed the jury on self-defence. The jury convicted
him of murder. He appealed contending that the judge in directing the jury on
self-defence should have put an alternative verdict of manslaughter to the jury.
Appeal dismissed. There is no option for a verdict of manslaughter where a
defendant uses excessive force in self-defence. The defence either succeeds in
its entirety or it fails. Juries may take into account the situation of the
defendant in deciding if the force is excessive and in so doing may take into
account the position of dilemma facing the defendant.
"If there has been an attack so that defence is reasonably necessary it will be
recognised that a person defending himself cannot weigh to a nicety the exact
measure of his necessary defensive action. 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."
In the case of Palmer vs. The Queen
, on appeal to the Privy Council in
1971, defined the concept of reasonable force:
The defence of self-defence is one that any jury can and will easily understand,
It's a straightforward concept. It does not contain any comprehensible legal
considerations. Only common sense is needed to understand it. It is good law and
common sense that a man attacked may defend himself. It is good law and common
sense that he may, but may only do what is reasonably necessary. But everything
will depend on specific facts and circumstances. In some cases it may be
reasonable and clearly possible to undertake some simple avoidance. Some attacks
can be serious and dangerous.
Others may not be. If there was some relatively minor attack, it would not be
reasonable to authorize any retaliatory action that was totally disproportionate
to the needs of the situation. If the attack is serious, putting someone in
immediate danger, immediate defensive action may be necessary. If it is a moment
of crisis for someone who is in imminent danger, they may need to avert the
danger with some immediate response.
If the attack is over and no danger remains, then the use of force may be a form
of revenge or punishment or settling an old score, or it may be outright
aggression. There may no longer be any connection with the necessity of the
defence. If the jury were to think that the person attacked, in a moment of
unexpected anxiety, did only what he honestly and instinctively thought
necessary, that would be the most effective evidence that only reasonable
defensive action was taken .
In the case of Wassan Singh versus the State of Punjab
(1995) 1996 SCC
(1) 458, JT 1995 (8) 434
There was a fight between two groups of people. The accused received nine
injuries and in exercising private defence, he shot at the assailants with his
gun, which hit an innocent woman bystander, causing her death. The Supreme Court
held that the accused had the right of private defence and hence, he was
acquitted. Section 106 read with Section 100 of the IPC, therefore, applies to a
case of extreme necessity in which a person is entitled to run the risk of
harming an innocent person in order to save himself/ herself from mortal
Judicial Perspective And Leading Cases
The drafters of the Indian Penal Code have left this concept of private defence
in an "imperfect state", i.e. the concept of private defence is not properly
defined in the provisions of the Penal Code, it has usually evolved or evolved
over the years with the judgments and decisions of the courts.
The provisions were framed by the code makers so that such provisions could be
interpreted and analysed by the judiciary and could be modified according to
different situations and cases so as to maintain the principle of justice in
providing justice to the people of our country i.e. leaving it in a flexible
state. They followed Rawls' principle of justice that it is the moral duty of
the court to act on the basis of fair adjudication between competing claims. As
such, it is associated with justice, entitlement and equality.
And also justice cannot be sacrificed for cost, speed and expediency. However,
their intention was only partially fulfilled, because the local judiciary
interprets the term private defence somewhat more strictly compared to the
higher judiciary, and this discrepancy between the judicial interpretation and
the intention is mentioned in sections 100 and 102 of the Criminal Code.
Explained under the heading "reasonable concerns"). The Court has interpreted
and analysed the right to private defence in various landmark cases.
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