Deepak Kumar
The Indian Constitution envisaged the words of Buddha, “war is not the solution”, in its text and other legislative provisions. The Indian Constitution in Part IV makes the provision to maintain international peace and security[1]. The individual is a subject in national as well as international law and the individuals enjoy rights and duties for and against each other as well as the State. Law is the gift of civilisation and it makes a fundamental difference between a human being and an animal to govern the society in an organised and civilised manner. Discord is in the nature of the human being and therefore, he needs to be regulated either by society or by the State. In other words, the State makes laws to protect the citizen not only against the individual but also against the State.
There are laws that protect individual freedom from infringement by individuals as well as the State. It is the duty of the State to protect the body and the property of the individual within and beyond its territory. But there are certain conditions where the State is not ready to provide its assistance immediately, so it provides some power to its citizens that can be used as a right to protect themselves, even up to the extent of causing the death of someone who is threatening their lives. It is the unique feature of the Indian Penal Code, that allows you to protect yourself or others when you have reasonable apprehension that someone is threatening your or others’ life.
In India, for 2,500 years, a certain community has faced humiliation, discrimination and has been forced to live in inhuman conditions due to a casteist and religious order. Everyday, one gets to read 3 to 4 news stories in every newspaper regarding atrocities against SC/ ST and minorities by certain sections of the so-called upper caste people. These people are citizens of India and also have the right to self-defence. The State made laws to protect these communities but after the experiences of 70 years of free India, we can say laws are good but the implementation is bad. The State machinery has failed to protect the rights, liberty and freedom of deprived sections of society.
Now, here I want to highlight that in a situation when the State’s assistance is not available, the State has provided its citizen a right of self-defence to cause death of the person who wants to kill you and others. Here I list certain national and internationals provisions that lay down the concept of ‘self-defence’.
A right to self-defence is a well-recognised right at the national as well as international level. Article 51 of the United Nations recognised these rights to all members of United Nations whether individual or State:
Nothing in the present Charter shall impair the inherent right of individual or collective self-defence if an armed attack occurs against a Member of the United Nations, until the Security Council has taken measures necessary to maintain international peace and security. Measures taken by Members in the exercise of this right of self-defence shall be immediately reported to the Security Council and shall not in any way affect the authority and responsibility of the Security Council under the present Charter to take at any time such action as it deems necessary in order to maintain or restore international peace and security[2].
Section 100 of Indian Penal Code, 1860, also provides the right to self-defence in the name of ‘private defence’ as:
When the right of private defence of the body extends to causing death—The right of private defence of the body extends, under the restrictions mentioned in the last preceding section, to the voluntary causing of death or of any other harm to the assailant, if the offence which occasions the exercise of the right be of any of the descriptions hereinafter enumerated, namely:—
(First) — Such an assault as may reasonably cause the apprehension that death will otherwise be the consequence of such assault;
(Secondly) —Such an assault as may reasonably cause the apprehension that grievous hurt will otherwise be the consequence of such assault;
(Thirdly) — An assault with the intention of committing rape;
(Fourthly) —An assault with the intention of gratifying unnatural lust;
(Fifthly) — An assault with the intention of kidnapping or abducting;
(Sixthly) — An assault with the intention of wrongfully confining a person, under circumstances which may reasonably cause him to apprehend that he will be unable to have recourse to the public authorities for his release [3].
In this section, the law allows an individual to cause death of a person when the apprehension of death is accrued in one or more of the 6 situations, and if someone exercises this right beyond the provisions of the section, he/she shall be punishable under the appropriate sections of the IPC.
In Section 103 of the IPC, 1860, every person has a right to cause death of the person in relation to offence committed to his property or any other’s property:
When the right of private defence of property extends to causing death —The right of private defence of property extends, under the restrictions mentioned in section 99, to the voluntary causing of death or of any other harm to the wrong-doer, if the offence, the committing of which, or the attempting to commit which, occasions the exercise of the right, be an offence of any of the descriptions hereinafter enumerated, namely:—
(First) — Robbery;
(Secondly) —House-breaking by night;
(Thirdly) — Mischief by fire committed on any building, tent or vessel which is used as a human dwelling, or as a place for the custody of property;
(Fourthly) —Theft, mischief, or house-trespass, under such circumstances as may reasonably cause apprehension that death or grievous hurt will be the consequence, if such right of private defence is not exercised[4].
Judicial Approach on Right to Self Defence
The full bench of Orissa High Court in State of Orissa v Rabindranath Dalai and Another 1973 Crl LJ 1686, held that: “In a civilized society the defence of person and property of every member thereof is the responsibility of the State. Consequently, there is a duty cast on every person faced with apprehension of imminent danger of his person or property to seek the aid of the machinery provided by the State but if immediately such aid is not available, he has the right of private defence.”[5]
In a recent judgement of the Supreme Court, the bench of Justice Dipak Misra and K S Radhakrishnan held that a person can kill another person if he/she has reasonable apprehension of his/her death, the Court said that:
“Right of private defence cannot be used to do away with a wrong doer unless the person concerned has a reasonable cause to fear that otherwise death or grievous hurt might ensue in which case that person would have full measure of the right to private defence.
“The right given under (IPC) sections 96 to 98 and 100 to 106 is controlled by Section 99. To plead a right of private defence extending to voluntary causing of death, the accused must show that there were circumstances giving rise to reasonable grounds for apprehending that either death or grievous hurt would be caused to him”.[6]
In another judgement the Supreme Court held that: “a person would be right in taking the law into his hands if he witnessed his parents or relatives being assaulted”.[7]
In Darshan Singh v State of Punjab and Another, on Jan 15, 2010 the court held that:
30. When there is real apprehension that the aggressor might cause death or grievous hurt, in that event the right of private defence of the defender could even extend to causing of death. A mere reasonable apprehension is enough to put the right of self-defence into operation, but it is also settled position of law that a right of self-defence is only right to defend oneself and not to retaliate. It is not a right to take revenge.”[8]
Russel on Crime (11th Edn., Vol.1, P.491) stated that:
“….. a man is justified in resisting by force anyone who manifestly intends and endeavours by violence or surprise to commit a known felony against either his person, habitation or property. In these cases he is not obliged to retreat, and may not merely resist the attack where he stands but may indeed pursue his adversary until the danger is ended, and if in a conflict between them he happens to kill his attacker, such killing is justifiable.”[9]
On the basis of the above analysis we can say that right to self-defence is a well-recognised right at the national as well as international level. It is an extraordinary power in the hands of common people to protect their body and property. In the Indian legal system it is a well established law that no one can take his/her life[10], in other words it is the fundamental duty of the every citizen to protect their body and property against any assault.
I write this piece because neither the State is ready to protect its citizens nor do the citizens know their rights to self-defence, therefore it is high time that people know to protect themselves in a constitutional manner. So, I have not much more to say about this other than: firstly, it is necessary that in a democratic country it is the State’s duty to protect its citizens’ bodies and property; the rights to self-defence is the secondary thing. First you have to wait for the assistance of police and if it does not come then please use your rights of self-defence and protect yours’ and others’ body and property.
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1. Constitution of India, 1950, Article 51.
2. United Nations, http://www.un.org/en/sections/un-charter/chapter-vii/ last accessed on 23 May, 2017.
3. Indian Kanoon at https://indiankanoon.org/doc/714464/ last accessed on 23 May, 2017.
4. Indian Kanoon at https://indiankanoon.org/doc/860501/ last accessed on 23 May, 2017.
5. At https://indialawyers.wordpress.com/2010/01/17/supreme-court-lays-down-guidelines-for-right-of-private-defence-for-citizens/ last accessed on 24 May, 2017.
6.Indian Express,Right to kill in self-defence only on reasonable fears: SC, (15 June 2012)
7. Dhananjay Mahapatra, Times of India (June 17, 2016) http://timesofindia.indiatimes.com/city/delhi/SC-expands-scope-of-right-to-self-defence/articleshow/52787800.cms last accessed on 24 May, 2017.
8. Indiakanoon, https://indiankanoon.org/docfragment/1748156/?formInput=self%20defence%20%20doctypes%3A%20supremecourt last accessed on 24May, 2017.
9.At https://indialawyers.wordpress.com/2010/01/17/supreme-court-lays-down-guidelines-for-right-of-private-defence-for-citizens/ last accessed on 24 May, 2017.
10. Section 309 of IPC, 1860.
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Deepak Kumar has done his Master of Laws (LL.M) with specialization in Constitutional Law from Dr. Ram Manohar Lohiya National Law University, Lucknow. He is currently pursuing M.Phil from Centre for the Study of Law and Governance, Jawaharlal Nehru University, New Delhi.
