Section 37 of the Bharatiya Nyaya Sanhita, 2023: Limits on the Right of Private Defence

The Bharatiya Nyaya Sanhita (BNS), 2023, which took the place of the Indian Penal Code, is the comprehensive legal document that sets the basis for criminal law in India. It is particularly addressed in Section 37 of the BNS that the constraints on the right of private defense are addressed. This section ensures that this right is applied in a responsible manner and within the boundaries of the law

When it is not possible to exercise the right to the right to private defense

Specifically, the following are the circumstances that are not covered by the right to private defense, as outlined in Section 37(1):

1. Acts Performed by Public Servants in Good Faith: If a public servant, acting under the authority of their office and in good faith, performs an act that does not reasonably cause fear of death or grievous hurt, then individuals are not able to claim the right of private defense against such actions. This is true even if the act is not strictly justifiable by law.

2. Acts Under Direction of Public Servants: In a similar vein, the right to private defense does not apply in situations where an individual acts under the direction of a public servant and the act does not rationally cause fear of death or grave damage. This is the case even if the direction is not absolutely justifiable by law.

In the event that there is adequate time to seek protection from public authorities, persons are expected to do so rather than resorting to private defense. This is referred to as the availability of legal recourse. Citizens who are members of the Complaint Hub Community

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When it comes to defense, proportionality

It is emphasized in Section 37(2) that the right to private defense does not allow for the infliction of more injury than could be considered necessary. The protective measure must be appropriate in light of the danger that is being confronted. Citizens who are members of the Complaint Hub Community

In the Ministry of Home Affairs, clarifications have been provided about the involvement of public servants.

For the sake of preventing misuse, this section provides further explanations: Citizens who are members of the Complaint Hub Community

Knowledge of Public Servant Status: An individual retains the right to private defense against the act of a public servant, unless they know or have cause to suspect that the person performing the conduct is a public servant.

Awareness of Authority: In a similar vein, the right is preserved against actions carried out under the order of a public servant, unless the individual is aware of or has reason to suspect that the person is acting under such direction, or unless the person states or demonstrates written authority if it is asked. Citizens who are members of the Complaint Hub Community

Examples Serving as Illustrative Examples

One example is when a law enforcement officer enters a person’s residence without a warrant, but they do not cause any violence, induce fear of death, or cause grievous harm to the individual. Due to the fact that the officer is acting in good faith while acting under the guise of their position, the homeowner is unable to assert their right to private defense in this scenario. Citizens who are members of the Complaint Hub Community

An individual is approached by a person who claims to be acting under the direction of a public official, but when questioned for proof of authority, the individual refuses to produce any evidence of their own authority. The right to private defense may be retained by the individual in the event that they are unaware of the authority in question or have cause to suspect that the individual possesses such authority.

The purpose of Section 37 of the Bharatiya Nyaya Sanhita, 2023, is to strike a balance between the individual’s right to provide for their own protection and the requirement to preserve public order and respect for those in positions of government. It ensures that private defense is practiced in a prudent manner, without infringing upon the activities of public personnel or avoiding the use of legal remedies that are available.