Section 39 of the Bharatiya Nyaya Sanhita (BNS), 2023, delineates the scope of an individual’s right to private defence, particularly when the threat does not justify causing death to the assailant. This provision ensures that the force used in self-defence is proportionate to the threat faced, promoting a balanced approach to personal protection.
Text of Section 39:
“If the offence be not of any of the descriptions specified in section 38, the right of private defence of the body does not extend to the voluntary causing of death to the assailant, but does extend, under the restrictions specified in section 37, to the voluntary causing to the assailant of any harm other than death.”
Key Components:
- Non-Lethal Threats: Section 39 applies when an individual faces an offence that does not fall under the severe categories outlined in Section 38, such as life-threatening assaults, rape, kidnapping, or acid attacks. In such scenarios, the right to private defence does not permit causing the death of the assailant.
- Permissible Harm: While causing death is not allowed, the defender is entitled to inflict any harm short of death on the assailant, provided it is necessary for self-protection. This includes actions like restraining, injuring, or incapacitating the attacker without resorting to lethal force.
- Adherence to Section 37 Restrictions: Any defensive action must comply with the limitations specified in Section 37, which emphasize that the force used should be reasonable and proportionate to the threat faced. The right to private defence cannot be invoked when there is sufficient time to seek protection from public authorities.
Illustrative Examples:
- Example 1: If Rakesh is verbally threatening Vijay without physical assault, Vijay cannot justifiably kill Rakesh in self-defence. However, he may take necessary steps to protect himself from potential harm, such as calling for help or leaving the scene.
- Example 2: If Rakesh physically assaults Vijay by punching him, Vijay is entitled to defend himself by causing harm to Rakesh, such as pushing him away or restraining him, but not to the extent of causing death.
Legal Interpretations and Case Laws:
While Section 39 is a recent enactment under the BNS, its principles align with the earlier Section 101 of the Indian Penal Code (IPC), 1860. Therefore, judicial interpretations of Section 101 can provide valuable insights into the application of Section 39.
- Yogendra Morarji v. State of Gujarat (1980): In this case, the Supreme Court held that the right of private defence is a defensive right, available only when the circumstances clearly justify it. The force used must be proportionate to the threat faced, and exceeding this limit can result in legal consequences.
- Darshan Singh v. State of Punjab (2010): The Court emphasized that the right of private defence is based on the necessity of self-preservation. However, it does not confer a right to retaliate or inflict more harm than necessary. The defender’s actions must be measured and appropriate to the situation.
Practical Implications:
Section 39 underscores the importance of proportionality in self-defence. Individuals must assess the severity of the threat and respond with appropriate force. Overstepping the boundaries of this right can lead to legal repercussions, including criminal charges for excessive use of force.
Section 39 of the Bharatiya Nyaya Sanhita, 2023, provides a nuanced framework for the right of private defence, allowing individuals to protect themselves from harm while ensuring that the force used is proportionate to the threat faced. By adhering to these guidelines, individuals can lawfully defend themselves without infringing upon the legal rights of others.
For a comprehensive understanding of Section 39 and related provisions, consulting legal professionals or authoritative legal resources is advisable. This ensures that individuals are well-informed about their rights and responsibilities under the law.
