The Right of Private Defence under the Indian Penal Code, 1860

Abstract

The complex institute of Private Defence (self-defence) in Indian criminal law was codified in the colonial period. This institute was included in Chapter IV “General Exceptions” of the Indian Penal Code of 1860, which continues to operate in the modern period with some changes and the judicial interpretation. According to the classification in the Indian and all common law countries doctrine, the self-defense institute belongs to the category of justifications, which excluding unlawfulness and, accordingly, the criminal nature of the conduct. The IPC Right of Private Defence is regulated in three blocks of legal norms (section 96 to 106) relating to the defence of person and property. Among them definitions and general provisions on private protection, the conditions for legitimacy and the self-defence excess (timeliness and proportionality), restriction of this right, situations in which the right of private defence of the body extends even to causing death or other harm. In the Indian Penal Code, unlike in most countries, there is an exception to the rule of proportionality: harm can be caused not only to the attacker but also to third parties who are not related to this dangerous encroachment. Another condition for legality has become cases where the defense is directed against officials or other authorized persons, even if their actions against the defender did not have a basis specified in the law. Most of the explanatory norms of the right of private defence are contained in the practice of the federal supreme and highest state courts. A feature of the institute is its social orientation and the active position of the court in the matter of establishing such exceptional circumstances as self-defence in each specific case.

Keywords:

common law system, Hindu law, case law, criminal code, criminal liability, general exceptions, justifications, excuses, self-defence, a right of private defence, the lawfulness of defenсe