Right to Private Defence – Self-preservation is primary because nothing is more important to man – or any animal or living thing, for that matter – than physical well being.
Therefore, the right to protect one’s person against physical harm is one of the basic rights. Indian Penal Code enumerates all that is prohibited and punishable under the criminal law of the land, but from Section 96 to Section 106, it allows acts done in private defence. Section 96 says in no uncertain terms, “nothing is an offence which is done in the exercise of the right to private defence.”
One is, therefore, clearly allowed to use necessary force against an assailant or wrongdoer in order to protect his own body or property, or both and also another’s body or property, or both.Right to self-defence is also available against a person of unsound mind. However, only such force can be used as necessary for the defence, for the law does not permit a person to start as a defender and turn into an attacker in the exercise of his right of private defence.Drafters of the IPC appear to be conscious of the fact that it is not always possible for the State to step in promptly enough to prevent harm. Therefore, they provided that a self- defender was not answerable to law for acting in self defence.
There are no golden scales to judge as to how much force in a particular set of circumstances is enough to defend oneself or one’s property, neither can a person defending himself or his property be expected to weigh the danger and use only as much force as absolutely necessary. Therefore, threat perception of a person in a particular situation becomes more important than the actual threat. For instance, a man may, quite understandably, kill a petty thief carrying a big knife at night simply out of fear for his own life.
In James Martin v. State of Kerala, (2004) 2 SCC 203, the Supreme Court held thus: In moments of excitement and disturbed mental equilibrium it is often difficult to expect the parties to preserve composure and use exactly only so much force in retaliation commensurate with the danger apprehended to him.Where assault is imminent by use of force, it would be lawful to repel the force in self-defence and the right of private-defence commences, as soon as the threat becomes so imminent. Such situations have to be pragmatically viewed and not with high- powered spectacles or microscopes to detect slight or even marginal overstepping.
Therefore, the law does not expect one to demonstrate exceptional composure in times of danger and take a very realistic stand in application of the law to real life facts.
