Bharatiya Nyaya Sanhita 2023: Section 38- When Self-Defense Allows Causing Harm or Death

Section 38 of the Bharatiya Nyaya Sanhita (BNS) 2023 outlines the circumstances under which an individual may lawfully cause death or harm to an assailant in self-defense. This provision is crucial for understanding the legal boundaries of the right to private defense in India.

Understanding Section 38

Section 38 specifies that the right of private defense of the body extends, under the restrictions specified in Section 37, to the voluntary causing of death or any other harm to the assailant if the offense which occasions the exercise of the right falls under certain categories. These categories include:

1. Apprehension of Death: If an assault reasonably causes the fear that death will otherwise be the consequence, the person attacked has the right to defend themselves, even to the extent of causing the assailant’s death.
2. Apprehension of Grievous Hurt: If an assault reasonably causes the fear of grievous hurt (serious bodily injury), the defender may use necessary force, including lethal force, to protect themselves.
3. Assault with Intent to Commit Rape: In cases where the assailant intends to commit rape, the victim has the right to defend themselves, even if it results in the assailant’s death.
4. Assault with Intent to Gratify Unnatural Lust: If the assault is intended to gratify unnatural lust, the person being attacked may defend themselves with necessary force, up to causing death.
5. Assault with Intent to Kidnap or Abduct: When an assailant intends to kidnap or abduct, the potential victim has the right to use force, including lethal force, in self-defense.
6. Assault with Intent to Wrongfully Confine: If someone is assaulted with the intention of wrongful confinement, under circumstances that may reasonably cause them to fear they will be unable to seek help from public authorities, they may defend themselves, even to the extent of causing death.
7. Act of Throwing or Administering Acid: If an assailant attempts to throw or administer acid, causing reasonable apprehension of grievous hurt, the person attacked has the right to defend themselves, including causing the assailant’s death.

Key Considerations

While Section 38 provides for the right to cause death in self-defense under specific circumstances, it is subject to the restrictions outlined in Section 37 of the BNS. These restrictions emphasize that the right of private defense does not extend to inflicting more harm than necessary to defend oneself. The force used must be proportionate to the threat faced.

Case Law Example

In the case of Jasbir Singh v. State of Punjab (AIR 2023 SC 672), the Supreme Court of India dealt with the right of private defense. The accused, alarmed by aggression from individuals armed with lathis (sticks), used a firearm in self-defense. The Court held that the accused was entitled to the benefit of Exception 2 of Section 300 of the Indian Penal Code (which corresponds to provisions in the BNS) and convicted him under Section 304, Part I, IPC. The accused had undergone a sentence of five years, which was deemed sufficient.

Section 38 of the Bharatiya Nyaya Sanhita, 2023, delineates the specific situations where an individual may lawfully cause death or harm in self-defense. It underscores the importance of proportionality and necessity in the use of force, ensuring that individuals can protect themselves while maintaining the legal boundaries set forth by the law. Understanding this provision is essential for recognizing the extent and limitations of the right to private defense in India.