RAJIV GANDHI NATIONAL

UNIVERSITY OF LAW, PATIALA

LAW OF TORTS (SEM II)

CASE : RESEARCH PAPER ON RIGHT TO PRIVATE DEFENCE

SUBMITTED BY : SUBMITTED TO :
NAME – SHASHANK UPADHYAY MRS. SUKHWINDER VIRK
ROLL NO. – 21163 ASSIST. PROF. OF LAW OF TORTS,
SECTION – B RGNUL, PUNJAB
 Contents
1. Introduction......................................................................................3
2. Private defense: Meaning and Types................................................4
2.1 Policy behind the right to private defense...................................4
2.2 Nature of the right........................................................................5
2.3 Aspects of Right to private defense.............................................5
2.4 Limitations on right to private defense........................................6
2.5 Burden of Proof under Right to private defense..........................7
3. Right to Private Defense in Indian legal system...............................8
3.1 Judicial view on private defence.................................................8
3.2 Right to private defense under the light of Article 21.................8
4. Types of private defense...................................................................9
4.1 Private defense of body...............................................................9
4.2 Private defense of property........................................................10
5. Conclusion......................................................................................12
6. Bibliography...................................................................................13
 1. Introduction

Criminal law, unlike the Constitution and other statutory laws, is not a right-encouraging
system. It is mostly punitive and seldom rehabilitative. Nevertheless, the basic tenet of any
remedial legislation is that self-help must be practiced. The right to self-defense is an
inalienable human right that must be used in order to safeguard one's own life, liberty, and
property. However, the kind and quantity of force that may be used to counteract the force is
very limited by the law. A fundamental tenet of criminal law is the premise that no one has
the right to fear for their own safety or the safety of others, even if it is a standard of
punishment rather than a right itself. If necessary, he would use lethal force to defend himself
in order to prevent certain crimes from being committed. Individuals may use defensive force
that would otherwise be prohibited to defend themselves against threats to certain significant
interests under the concept of private defense. The right to private defense, like the defense of
necessity, allows people to take matters into their own hands. But the most crucial point here
is that the right to private defense implies that the force used in the defense must be necessary
and reasonable in the given circumstances. – There are times, though, when it cannot be
measured on gold weighing scales.1 A person exercising his or her right to defend himself or
herself is not bound by the law's presumption that the force used in defense must either be
proportional to the force intended to be repelled or sufficient to repel it and prevent fear of it.
The article also outlines explicitly the instances in which the right may extend to the death of
the aggressor and certain restrictions when the right cannot be lawfully exercised. Even the
English legal system is aware of this privilege. That legislation, on the other hand, grants you
this particular privilege. "This right of defense is very vital," said English jurist and utilitarian
Jeremy Bentham. The Magistrates' vigilance will never be able to compensate for the
personal alertness of each individual. In the end, "the dread of the total to individual
resistance is more effective than the fear of the law."2 To the degree that some pundits have
said that taking away this privilege makes you an accomplice to all evil guys." Two
underlying ideas underpin this right:
1. It can only be used against the aggressor/assailant and not against anybody else, and
2. The right is accessible only when the defense has legitimate fear.
1
India, legal Service. “Private Defence: A Right Available to All People in India.” Legal Service India,
https://www.legalserviceindia.com/article/l470-Private-Defence.html.
2
Academike. 2022. Right of Private Defence - Academike. [online] Available at:
https://www.lawctopus.com/academike/right-private-defence/ [Accessed 24 April 2022].
That's why it's important to keep the right of private defense under control, to use it sparingly,
and to enable it to be interpreted broadly and carefully. The coercive effect on corrupt
characters is not the sole benefit of such a privilege, but it also develops the spirit of
manliness in law-abiding individuals. Since the right to exercise one's self-defense against
wrongdoers may only be exercised in certain circumstances, it must be restricted in scope
(applicable in a wide range of situations). As a result, it may be used as a means of retribution
by dishonest individuals under the cover of the law, causing it to be pulverized. There are
three basic ways (tests) that the law uses to verify the assertions of this defense—the
objective, subjective, and enlarged objective tests. Objective tests focus on how a typical,
average person would react in a comparable situation, while subjective tests look at the
mental state of each subject (individual) in the context of the issue at hand and the attitude
that person has as an individual (educational, societal and mental background, etc.). An
individual's reasonableness may be determined using an enhanced objective exam, which
combines the above-mentioned two assessments into one. As a result, this right is more
accurately defined as a shield than a sword, since the law does not provide a person with it so
that they might use it to satisfy their desires for revenge or crime.3

2. Private defense: Meaning and Types

2.1 Policy behind the right to private defense
An individual's ability to prohibit another from committing an infraction is based on the policy that
underpins the right in question. The goal is to be preventative rather than punishing. An emergency
exists when the right to private defense applies because the threat is too immediate and effective
recourse to government agencies is not available. No one has a legal obligation to flee from an
immediate threat; rather, it is anticipated and authorized of him that he would resort to the use of force
to prevent the risk.4
Individuals are under no need to withdraw under the law, according to the court. However, since the
goal is to prevent acts of aggression, the use of force should be limited to the extent that it is necessary
to achieve that goal, and it is not permissible to use force to punish the aggressor. As a result, the right
to private defense must be limited in its scope of applicability.

3
2022. [online] Available at: https://theleaflet.in/the-right-of-private-defense-a-legal-view/ [Accessed 24 April
2022].
4
Gorr, Michael. “Private Defense.” Law and Philosophy, vol. 9, no. 3, 1990, pp. 241–68,
https://doi.org/10.2307/3504802. Accessed 24 Apr. 2022.
2.2 Nature of the right
The first and most important responsibility of man is to assist himself. The right to self-
defense must be instilled in the population of any free society. Every legal system recognizes
the right, and the amount to which it may be exercised varies in direct proportion to the state's
ability to safeguard the lives and property of its inhabitants.5
One thing that should be made clear is that there is no right to private defense when it is
possible to seek the protection of law enforcement authorities before the incident occurs.
It is purely dependent on the unlawful or allegedly wrongful nature of the conduct
undertaken, and if the apprehension is genuine and reasonable, it makes no difference
whether or not the apprehension is correct. An act performed in the exercise of this right does
not constitute an offense and, as a result, does not give rise to any right of private defense in
return.

2.3 Aspects of Right to private defense

In the landmark instance of England, this phenomenon may be explained. "With the help of
her accomplices, the owner of a property who has a renter paying rent sought to remove
(forcefully) a tenant from her residence without providing sufficient notice. The renter shot at
the land lady's friend to safeguard the property he was occupying. Landlords have a right to
forcefully remove tenants, and the tenant has a right to private defense. [PROTECTION OF
RESIDENCE AND PROPERTY]
Moreover, courts in common law nations held that, if a person is going to be assaulted, he or
she need not wait for the attacker to complete his or her commission before striking first or
delivering the first blow if the circumstances so warrant.
While she was lynched by a young man and as an act of self – defense lynched him with a
broken piece of glass, she didn't realise that she had the glass piece in her hand because she
reverted to the principles previously mentioned, which is why she didn't realise that she had a
broken piece of glass in her hand. On appeal, it was declared that she had the right to self–
defense since she had been found guilty in the trial court. Protecting one's body, limbs, or
head is an important consideration.
Verayya Vandayar v. Emperor6, a 1935 Indian Supreme Court decision stating that charges
imposed under the Indian Arms Act would not be applicable under this chapter IV of the IPC,
serves as a further example of the right to private defense. There are other limitations on
5
Agrawal, Yash, The Right of Private Defense in Indian Criminal Justice System (June 14, 2020). Available at
SSRN: https://ssrn.com/abstract=3626681 or http://dx.doi.org/10.2139/ssrn.3626681
6
Verayya Vandayar v. Emperor AIR 1940 Mad 451
weapons and methods of use, but this is because it is impossible to remain calm in a heated
situation, therefore any action used to protect life or property may be used if a threat has been
made, but the force used must be equal to the force used against an accused party.
EXAMPLE: If a group of five people is assembled, and a few antisocial fling stones at them,
two of them are killed. Because it states "protection of your own body or another person's
body," the other three may use their rights and be exempted. The right to self-defense may be
exercised here by the other parties as well.7

2.4 Limitations on right to private defense

Acts against which there is no right of private defense are covered by Section 99 of the IPC,
which also states that the right of private defense in no instance extends to greater damage
than is required for the purpose of defense. Section 99 of the Indian Penal Code states that the
accused has no right to self-defense.

1. Public servants operating in good faith under the color of their authority may be held liable
for conduct that does not reasonably induce the fear of death or grave harm, even if it is not
legally permissible under the law.

2. Public servants may be held liable for an act that does not reasonably cause a person to fear
death or serious bodily harm even if they are operating in accordance with their official
duties, even though their actions may not be legally justified.

3. When there is enough time to seek the help of the governmental authorities.

In addition, it states that the right of private defense does not extend to causing greater injury
than is required for defense.

Explanation 1 - It is not a public servant's duty to protect an individual's right to private

defense unless the individual is aware of or has reasonable suspicion that, the person doing
the act is one of those public servants.

Explanation 2 - A person's right to private defense against an act performed or attempted

under the direction of a public servant is not taken away under Explanation 2, because the
person performing the act does not have to state their authority to perform the act, or if they
have written authority, must produce it if requested, unless they know or have reason to
believe that they will be denied that right.

7
Srdlawnotes.com. 2022. Right of Private Defence (Section 96 to 106 IPC) : Indian Penal Code 1860. [online]
Available at: https://www.srdlawnotes.com/2017/05/right-of-private-defence-section-96-to.html [Accessed 24
April 2022].
Section 99 governs the rights granted in Sections 96 to 98 and 100 to 106. According to the
Supreme Court in Puran Singh & others v. State of Punjab 8, the right to self-defense must be
exercised under the following conditions:
(i) the right is not available if there is sufficient time for recourse to public authorities;
(ii) no more harm should be caused; and
(iii) there must be a reasonable fear of death or great bodily harm to the person or property
being defended by the individual.

2.5 Burden of Proof under Right to private defense

When the accused enters a plea of private defense, he must admit the occurrence of the event,
and the burden of proof falls on the accused under Section 105 of the Indian Evidence Act,
1872. The court stated in Salim Zia v. the State of U.P.9, that "it is true that the burden on an
accused person to establish the plea of self-defense is not as onerous as the one which lies on
the prosecution and that, while the prosecution is required to prove its case beyond a
reasonable doubt, the accused need not establish the plea to the hilt and may discharge his
onus by establishing a mere preponderance of probabilities" In James Martin v. the State of
Kerala10, ruled on December 16, 2003, the Supreme Court of India found that the accused did
not need to show the existence of the right to private defense beyond a reasonable doubt. It is
sufficient for him to demonstrate, like in a civil action, that the majority of probability is in
his favor. The number of injuries sustained is not necessarily a reliable criterion for
establishing who was the aggressor. It cannot be declared as a general rule that wherever
injuries are found on the accused individuals' bodies, a presumption must be created that the
accused persons inflicted the injuries while exercising their right to private defence. It is true
to state that the accused has the burden of evidence in establishing the plea of self-defence,
and that in the absence of proof, the Court cannot infer the truth of the plea of self-defence.
The lack of such conditions is presumed by the Court. It is the accused's responsibility to put
relevant information on record, either by introducing affirmative evidence or by extracting
necessary facts from witnesses interviewed for the prosecution. An accused exercising his
right to private defense is not needed to summon evidence; he might prove his plea by
referring to facts arising from the prosecution evidence itself. In such a circumstance, the
issue would be one of determining the genuine impact of the prosecution's evidence, not of
the accused fulfilling any burden. When the right to private defense is used, the defense must

8
Puran Singh & others v. State of Punjab (1975) 4 SCC 518
9
Salim Zia v. the State of U.P., AIR 1979 SC 391
10
Martin v. the State of Kerala AIR 2003 (3) KLT 472
be a reasonable and plausible version that convinces the court that the injury inflicted by the
accused was required for either repelling the assault or preventing additional reasonable fear
on the accused's part. The accused has the burden of proving the plea of self-defence, which
is discharged by demonstrating a preponderance of probability in favour of that plea on the
basis of the evidence on record.11

3. Right to Private Defense in Indian legal system

3.1 Judicial view on private defence
Specifically, in exceptional situations, the right of private defense gives people the legal
authority to take reasonably required actions to defend themselves. A good example of the
contradiction between judicial interpretation and the purpose of the Code writers is the
understanding of "reasonable apprehension" under Sections 100 and 102 of the Criminal
Code, respectively. The local courts seem to have taken a rigid objective approach to evaluate
reasonable apprehension, neglecting the fact that the concept is inherently ambiguous.

3.2 Right to private defense under the light of Article 21

"The right to life and personal liberty" is what the Indian constitution's article 21 refers to as a
person's first and most basic human right. The right to life and liberty is revered in all
civilised societies, but those rights can only be violated in accordance with the rules set forth
by the law. The Supreme Court's seven-judge panel outlined the principles of reasonableness,
which are essential to equality both legally and philosophically and are also non-arbitrary.
There should be no retaliatory character or intent to the exemption allowed under the Right to
private defense since the legislation is only accessible when it is justifiable to use, which is
under the anticipation of danger and immediate risk to life, limb, or property. The law also
gives strangers the authority to safeguard the person or property in the event of an
apprehension. As a result, courts must be careful when deciding on private defense cases, as
it may be necessary for people to participate in anti-social activities, such as street fights,
where there is no immediate danger or apprehension to the individual's body or life and
property, in the name of private defense.

11
Gowtham, A. and Roja, K., 2018. A STUDY ON PRIVATE DEFENCE IN INDIA : A LEGAL ANALYSIS.
International Journal of Pure and Applied Mathematics, 120(5).
 4. Types of private defense
4.1 Private defense of body
Sections 100-102 of the Indian Penal Code define the scope of the right to private bodily
defence. Section 100 deals with the instances in which the right of private defense of the
body extends to the intentional infliction of death in the following situations:
1. Any assault that has the potential to cause death or grievous bodily harm;
2. Any assault that has the potential to cause grievous bodily harm;
3. Any assault committed with the intent of committing rape;
4. Any assault committed with the intent of gratifying unnatural lust;
5. Any assault committed with the intent of kidnapping or abducting;
6. Wrongfully detaining someone in order to prevent them from seeking help from the public
authorities is a kind of violence.;
7. There is a reasonable fear that the expectation that severe harm would ensue as a result of
an act of throwing or administering acid or an attempt to throw or administer acid will occur;
When someone throws or administers acid, or attempts to throw or administer acid, there is a
reasonable fear that they may be harmed or killed as a result of their actions. Section 100 of
the Indian Penal Code (IPC) allows for the death of an attacker if there is reasonable
suspicion of committing an awful crime listed in many clauses of the section. The first clause
of section 100 applies in cases where there is a reasonable fear of death, whereas the second
clause applies when a person has a genuine fear that his adversary is about to attack him and
he reasonably believes that the attack will result in grievous bodily harm to himself or herself.
The third and fourth clauses deal with the situations in which the attacker may be murdered,
such as if there is suspicion of rape or unnatural passion, and they are discussed more below.
Sections 5 through 7 discuss the scope of private defense in the event of kidnapping or
abduction, unlawfully detaining a person, or an acid assault, respectively. In the case of
Sulaiman v. State of Kerala12, decided on the 15th day of February, 2017, the Kerala High
Court held that in order to qualify for protection under Section 100 IPC, any one of the seven
limbs of the Section must be established either by the accused himself or by the prosecution
evidence, which must be discernible from the evidence. On the basis of evidence of the
presence of any of the seven elements mentioned in Section 100 IPC, it is obvious that a right
of self defense may be expanded up to and including the right to cause death in certain
circumstances. The fundamental concept behind Section 100 of the Indian Penal Code is that
12
Sulaiman v. State of Kerala 1954 AIR 312, 2017 SCR 976
no innocent person should be condemned. Section 101 of the Indian Penal Code specifies
when such a right extends to inflicting injury other than death. According to the provision,
where the assailant commits an offence other than that specified in Section 100 IPC, the right
of private defense of the body does not extend to the voluntary infliction of death on him or
her, but does extend, subject to the restrictions specified in Section 99, to the voluntary
infliction of any harm other than death on him or her.13 Under Section 102 of the Indian Penal
Code, a person's right to private defense of the body begins as soon as there is a reasonable
perception of risk to the body is seen and continues for as long as there is a reasonable
apprehension of harm to the body. It was held by the Supreme Court of India in the case of
Sikandar Singh and others v. the State of Bihar, decided on 9 July 2010, that the scope and
width of private defense are explained in Sections 102 and 105 of the Indian Penal Code,
which deals with the commencement and continuation of the right of private defense of body
and property, respectively. According to these provisions, the right to refrain from
committing an offense begins as soon as a reasonable apprehension of bodily harm arises as a
result of an attempt or threat to commit an offense, even if the offense has not yet been
committed but only until there is that reasonable apprehension of bodily harm. The right to
sue lasts as long as there is a reasonable suspicion that the body is in imminent danger.

4.2 Private defense of property

Sections 103-105 of the Indian Penal Code (IPC) outline the scope of a person's private right
to defend their property. Section 103 of the Indian Penal Code (IPC) permits a person who is
exercising his or her right of private defense of property to inflict the wrongdoer's death or
any other injury.
First - Robbery;
Second - night-time home invasions; 
Third - Fire damage to any building, tent, or vessel used as a place of human habitation or as
a storage facility for the property; 
Fourth - Theft, vandalism, or home trespassing where there is a credible fear of death or
serious injury as a result of failing to use one's right to private defense.

When Section 103 is invoked, the right of private defense of property will extend to the
voluntary infliction of death or the infliction of any other harm on the wrongdoer, subject to

Dahiya, A., 2015. Right to Private Defence: A Preventive Right or A Punitive Right. Research Scholar,
13

Department of Law, Maharishi Dayanand University, Rohtak, 4(11).

the provisions of Section 99 IPC; and the offenses committed or attempted to be committed
that will justify the exercise of the right of private defense of the property are as follows:

(1) Robbery
(2) House-breaking at night
(3) Mischief by fire committed on any building, tent, or vessel used as a human dwelling or
as a place to keep property;
(4) Theft, mischief, or house-trespass, under circumstances that may reasonably cause
apprehension that death or great harm will be the result if such right of private defense is not
exercised.

IPC Section 104 states that the right to private defense does not extend if an offense is
committed or attempted to be committed that requires the use of the right of private defence,
such as theft or mischief, or criminal trespass that does not fit into any of the categories
enumerated in Section 99 but does not extend to the voluntary causing of death. In Jai
Bhagwan and others v. State of Haryana, AIR 1999 SC 108314 the Supreme Court of India
held that if the wrongdoer commits or attempts to commit any of the following offences:
(1) theft, (2) mischief or trespass not of the description which is covered under Section 103,
subject of course to the restrictions mentioned in Section 99 IPC, the right of private defense
of property would only extend to causing harm other than that which is covered by Section
103. Section 105 of the IPC states that a reasonable concern of harm to the property triggers
the right of private defence.15 The right of private defense of property against -
 Theft will continue until the perpetrator has fled with the item, public authorities have
been contacted, or the property has been recovered.
 Robbery will continue as long as the perpetrator threatens to kill, injure, or restrain a
victim, or causes or tries to inflict death, serious injury, or unlawful restraint in that
victim.
 Criminal trespass or mischief continues for as long as the offender continues to engage in
the crime of criminal trespass or mischief, regardless of whether the perpetrator is caught.
 Breaking into houses at night will continue as long as the home trespass that was started
by the break-ins does.

14
Jai Bhagwan and others v. State of Haryana AIR 1999 SC 1083
15
India, legal Service. “Private Defence: A Right Available to All People in India.” Legal Service India,
https://www.legalserviceindia.com/article/l470-Private-Defence.html.
 5. Conclusion
The issue of the right to private defence essentially allows the application and of several
remedies from offences that are punished under the Indian Penal Code. As we near the end of
the project, we learn about many elements of the application and development of this code in
Chapter IV.
The beginnings may be traced back to Lord Macaulay, the code's author, who realised that if
such a remedy to various offences is not offered under this code, it would be unfair to the
people who live in this nation. The bulk of the project is a doctrinal thorough form of study in
which we revealed different aspects of the right to private defence extending from sections 96
to 106; with detailed breakthrough accompanied by a specific number of case laws and case
studies for a frank viewpoint. The issue of the right to private defence essentially allows the
application and of several remedies from offences that are punished under the Indian Penal
Code. As we near the end of the project, we learn about many elements of the application and
development of this code in Chapter IV.
The beginnings may be traced back to Lord Macaulay, the code's author, who realised that if
such a remedy to various offences is not offered under this code, it would be unfair to the
people who live in this nation. The bulk of the project is a doctrinal thorough form of study in
which we revealed different aspects of the right to private defence extending from sections 96
to 106; with detailed breakthrough accompanied by a specific number of case laws and case
studies for a frank viewpoint.
 6. Bibliography
Webliography
1. India, legal Service. “Private Defence: A Right Available to All People in India.” Legal
Service India, https://www.legalserviceindia.com/article/l470-Private-Defence.html.
2. Academike. 2022. Right of Private Defence - Academike. [online] Available at:
https://www.lawctopus.com/academike/right-private-defence/ [Accessed 24 April 2022].
3. 2022. [online] Available at: https://theleaflet.in/the-right-of-private-defense-a-legal-view/
[Accessed 24 April 2022].
4. Agrawal, Yash, The Right of Private Defense in Indian Criminal Justice System (June 14,
2020). Available at SSRN: https://ssrn.com/abstract=3626681 or
http://dx.doi.org/10.2139/ssrn.36266815
5. Srdlawnotes.com. 2022. Right of Private Defence (Section 96 to 106 IPC) : Indian Penal
Code 1860. [online] Available at: https://www.srdlawnotes.com/2017/05/right-of-private-
defence-section-96-to.html [Accessed 24 April 2022].
6. Gorr, Michael. “Private Defense.” Law and Philosophy, vol. 9, no. 3, 1990, pp. 241–68,
https://doi.org/10.2307/3504802. Accessed 24 Apr. 2022.
7. India, legal Service. “Private Defence: A Right Available to All People in India.” Legal
Service India, https://www.legalserviceindia.com/article/l470-Private-Defence.html.
Journal
1. Dahiya, A., 2015. Right to Private Defence: A Preventive Right or A Punitive Right.
Research Scholar, Department of Law, Maharishi Dayanand University, Rohtak, 4(11).
2. Gowtham, A. and Roja, K., 2018. A STUDY ON PRIVATE DEFENCE IN INDIA : A
LEGAL ANALYSIS. International Journal of Pure and Applied Mathematics, 120(5).
Cases Cited
1. Jai Bhagwan and others v. State of Haryana AIR 1999 SC 1083
2. Sulaiman v. State of Kerala 1954 AIR 312, 2017 SCR 976
3. Puran Singh & others v. State of Punjab (1975) 4 SCC 518
4. Salim Zia v. the State of U.P., AIR 1979 SC 391
5. Martin v. the State of Kerala AIR 2003 (3) KLT 472
6. Verayya Vandayar v. Emperor AIR 1940 Mad 451