By: Aishwarya Sinha
Self-defence means to protect oneself in jeopardy. The test of necessity plays an important role in determining self-defence along with factors like clear and present danger and imminence of harm to person or property. The use of force to protect oneself from an attempted injury by another is self-defence. Self-defence is the basic human right that every individual possess from the time of their birth. The idea of self-defence is an inherent and autonomous right. The traditional naturalist doctrine said that preservation of self was regarded as the natural right of an individual and the state could not take away or limit it by the positive law.
The law of private defence is based on two principles i.e.
- Each individual has the right to defend his own & also another’s body and property
- The right cannot be applied as a pretext for justifying aggression for causing harm to another person, nor for causing more harm than is necessary to inflict for the purpose of defence.
Section 96 to 106 of Indian Penal Code, 1860 defines the law relating to the right of private defence. The right is essential for defence and not for revenge. Section 97, 98 & 99 are of general nature and deals with both aspects of private defence of body & property. Whereas sections 100,101,102 & 106 are concerned with the defence of body and sections 103, 104 & 105 with the private defence of property. The provision contained in these sections gives authority to a person to use necessary force against the assailant or wrong-doer for the purpose of protecting one’s own body & property as also of another’s when an immediate aid from the state machinery is not readily available.
Section 96: There is no offence if it is done to exercise the right of private defence.
Section 97: Every person has a right of private defence, subject to the restrictions contained in section 99 of IPC.
Section 98: Every person has the same right of private defence against a person of unsound mind, intoxication, etc. against that act which he would have if the act were that offence.
Section 99: There is no right of private defence against certain acts. Right to private defence cannot be exercised against an act which does not reasonably cause the apprehension of death or of grievous hurt. If such an act is done or attempted to be done, by a public servant acting in good faith under colour of his office, though that act, may not be strictly justifiable by law. Right to private defence cannot be exercised in cases in which there is time to have recourse to the protection of the public authorities.
BURDEN OF PROOF IN SELF-DEFENCE
It is on the accused on whom the burden of proof lies where a plea of self -defence is taken. The accused has to show by producing evidence that the right of self -defence was taken in order to save himself and the harm to his property.
LIMITATION OF SECTION 99 OF IPC 1860
There are provisions of self- defence but here this section lays down some limitation to it. Section 99 states that the right cannot be taken against a public authority. This is when he is acting on his duty in good faith which is justifiable by law and Section 99 also states that though his actions might not be strictly justifiable by law.
The imminent threat is a standard criterion in international law for justifying the self-defence. Article 51 of the UN Charter lays down the provision of self-defence.
Madan Mohan Pandey vs State of Uttar Pradesh[i]
In this case, the supreme court laid down that in judging if the person has exceeded his right to private defence or not, the court must take into account the weapon used.
Arun vs the State Of Maharashtra[ii]
The apex court laid down that the right to private defence is derived from the facts of a case.
Ishak vs State of Madhya Pradesh[iii]
It was laid down whenever there is the apprehension of death and the person in such situation cannot effectively exercise his right to private defence without the possibility of harming an innocent person than he may take such risk and his action is justified under the law.
State of Orissa v. Nirupama Panda[iv]
The victim entered into the house of accused & he tried to rape her. There was a quarrel between them and the accused lady finally stabbed the man and he died. She was not held liable as it was her right of private defence.
Shigni v. the State of Haryana[v]
If a wife refuses to submit to her husband for cohabitation, the husband is not expected to use force. The wife has the right of private defence to retaliate the force used on her and the husband has no right to cause injury to his wife in enforcing sexual intercourse.
Self -defence or self -preservation is the basic instinct of every human. The state provides laws to protect an individual but it cannot be with you all the time and thus the role of self-defence comes into the picture. But one has to be very careful in exercising his right to self-defence i.e. when it starts when it ends and only proportionate harm can be caused while exercising the right of self -defence.
[i] (1991) Cr LJ467 (SC)
[ii] (2009) 4 SCC 615
[iii] (1976) 25 Jab LJ 351
[iv] 1989 CrLJ 621 (Ori)
[v] 1969 CrLJ 220