This blog is inscribed by Anupama Vernekar
Introduction
The state has been entrusted with the the duty to protect the rights, life, liberty and property of its citizens. However, in certain circumstances, the state machinery is unable to provide such protection. The law authorizes a person to take the law in their own hands when he has a reasonable apprehension that his life or property is in jeopardy. According to Jeremy Bentham, such a right of self-defense is absolutely necessary, as the vigilance of the magistrates can never be substituted by vigilance on one’s own behalf.
The Law Commission in its 42nd report[1] had proposed several changes to the right of private defense, to widen its scope. The British, however, interpreted the law in accordance to the Mohammedan laws, which restricted the scope of the right of self-defense. The idea of Private defense was proposed by Thomas Macaulay in his draft code [1861] with the intention of instilling a spirit of bravery among the natives. Sections 96 to 106 states the circumstances under which the right to self-defense can be exercised.
History and Evolution
Medieval View-
The origin of the concept of self defense was rooted in the Norman conquest of the Anglo-Saxon period. Any killing even if done as an act of self-defense was considered as culpable. The promulgation of the statute of Gloucester 1278 authorized those that were guilty of such a homicide while exercising the right of self-defense, were to make a mercy plea to the king to pardon them for their wrongs. In 1769, Sir William Blackstone gave his views on the right of self-defense.[2]
St. George Tucker's[3] book contained the earliest prominent commentaries on the U.S. Constitution. According to him the right of self-defense was the first law of nature. It has been a general practice wherein the rulers used to confine this private right within the narrowest limits possible to exert their power. As per the records in the Year Books of the regal years of Edward IV and Henry VII, numerous cases were recorded where the right of self defense was used as an excuse to escape the liability for felony. Consequently, a statute was enacted in 1532, which laid down the principle that ‘homicide in the right of self defense would lead to forfeiture of property’.[4]
Modern View-
In cases these days where homicide has been committed in the interest of protecting one’s life, liberty or property; no criminal liability is attached to the defendant. The legal maxim ‘Actus Reus Non Facit Reum Nisi Mens Sit Rea’ applies to such cases, since the act is done in interest of self-defense and devoid of any malice. This right of self-defense is not restricted to one’s own body but is also available to another’s body. It can also be exercised, when there is a threat to one’s own property or the property of another person.
SECTIONS 96-106 of IPC provide Right of Private Defense
1) Section 96 states that an act done under the exercise of right of Private defense is not an offense.
2) Section 97 lays down that the right of self-dense can be exercised in the protection of
Body: One’s own body or that of another person and
Property: Moveable or Immovable property of self, or another person
3) Section 98; This section lays down that the right of private defense can be availed of in the same manner, even when the original assailant was
· Of unsound mind
· Minor
· In want of maturity of understanding
4) Section 99: Provides Limitations.There is no private defense against:
- A public servant acting in good faith
- Those acting under the authority of such a public servant
- Sufficient time for recourse to public authorities
It is also essential that the right of self defense must be proportional to the quantum of harm caused to the one that exercises such a right
5) Section 100: Death of an assailant is authorized when there is a reasonable apprehension of the following[5]:
· Death
· Rape
· Grievous hurt
· Gratifying unnatural lust
· Kidnapping/Abducting
· Wrongful confinement
6) Section 101: Provides that the right of private defense is not available in cases where there is no reasonable apprehension of the clauses mentioned under section 100 of the IPC.
7) Section 102: This section talks about the commencement and extent of the right of private defense
- Commencement: As soon as the apprehension of harm begins
- Extent: Till such an apprehension last
8) Section 103: In case of reasonable apprehension of danger to property, the right of private defense may extend to cause death when there is:
- Robbery
- House breaking by night
- Mischief by fire committed on any building tent or vessel inhabited by
Humans
- In cases of Theft, Mischief, House trespass, where there would be reasonable apprehension of death or grievous hurt, if right of private defense was not exercised
9) Section 104: In such cases where there is no reasonable apprehension of danger to property under any of the clauses mentioned in section 103, then the Right of Private Defense cannot be exercised.
10) Section 105: The commencement and extent of right to defend one’s property or the property of another is explained in this section.
- Commencement: As soon as the apprehension of harm begins
- Extent: Till such an apprehension last
11) Section 106: The right of private defense runs the risk of causing harm to an innocent person, if the defender be so situated that he cannot defend himself without causing harm to such a person.
Conclusion
The burden of proof lies on the defender to prove that the facts and circumstances were such that it was absolutely necessary for him to counter attack and cause death of assailant, otherwise he would lose his life, liberty or property. If he cannot prove it beyond reasonable doubt, he can prove it using the preponderance of probability.
The right of private defense empowers one to stand up against any abuse caused to him or any other person. Such a right is Sine non qua for the existence and healthy functioning of a democratic society.
[1] http://www.lawcommissionofindia.nic.in/ [2] JUSTIFICATION: SELF-DEFENSE – HISTORY, Bibliography: Law.jrank.org. 2020. Justification: Self-Defense – History, https://law.jrank.org/pages/1466/Justification-Self-Defense-History.html [3] Blackstone's Commentaries: With Notes of Reference, 1803; to the Constitution and Laws, of the Federal Government of the United States; and of the Commonwealth of Virginia [4]18th and 19th-Century Commentary on the Right to Keep and Bear Arms, Prof. Eugene Volokh, UCLA Law School; https://www2.law.ucla.edu/volokh/beararms/comment.htm#TUCKER [5] Darshan Singh v State of Punjab (2010) AIR 1993 SC 970