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Roll No. 38
Roll No. 38
Gaurav Thapliyal
2012-2017
Assistant Professor
DEHRADUN
2016
Statement of the Problem
Right to private defence is an ages old concept. The concept was recognised even before the
inception of concept of law and order. Private defence is more of a natural instinct than a
right. It is recognised by both law and equity. The right of self-defence is one which has come
down from the ancient law-givers. Manu enjoined to resort to arms in self-defence 1 and the
root of this concept may be found even in Anglo-American jurisprudence.2
The present date legal regime recognises this important right of a person to protect himself
and his property from any harm. It provides an individual the power and protection to inflict
injury to another individual or a group of individuals to protect ones own interest. This
should not be misunderstood with the power of a state to punish an individual for the wrong
done by him. Thus private defence cant be in the nature of punishment and the power
granted and exercised by the states are different from the ones of an individual. The legal
regime concerning to private-defence is thus an extension of the laws of necessity, the test for
a reasonable exercise of self-defence being a clear and present danger, the imminence of
harm to either person or property, and the consequent necessity to protect the self or ones
property. This is in consonance with a basic aim of criminal law which is to safeguard
conduct that is without fault from condemnation as criminal.3
There exists no scope to question the necessity and legitimacy of the right of private-defence.
But there are certain contestable issues that this area of law throws up. Some of them are the
quantum of force to be used in exercise of private defence, the approach to determine
apprehension of danger and immediate danger, the time duration to determine the start and
end of private defence, consequences of excessive force in private defence etc.
1. What is the measure to determine the reasonableness and necessity of the force used
in private defence?
2. What is the role played by the judiciary in the evolution of law relating to right to
private defence?
3. What is the legal position of the concept in the contemporary world?
4. Whether the judicial interpretation has successfully catered the needs of the society
and the evolution of the law?
"It is both good law and good sense that a man who is attacked may defend himself. It is both
good law and good sense that he may do, but only do, what is reasonably necessary." 4 Private
defence is thus a part of the natural rights conferred on the members of the society. But the
measure of exercise of this right is determined by the law. It depends on various factors like
reasonableness of force used, apprehension of harm etc. Thus there exists some interface
between natural rights and legal rights while dealing with the topic of private defence.
In India, the right of private defence is the right to defend the person or property of himself or
of any other person against an act of another, which if the private defence is not pleaded
would have amounted to crime.5 The principle on which the understanding private defence is
based is common but the way in which law pertaining to private defence responds is different
in different countries. During the course of discourse the dissertation would aim to analyse
the legal position in the other contemporary world. Thus an example of the both the common
5 R.D. Yadav, Law of Crime and Self-Defence (New Delhi, 1993), p. 18.
law and civil countries will be taken. This approach has been adopted to get an holistic view
of the legal systems in world.
Research Methodology
The research methodology used for this dissertation would be comparative analysis of various
primary and secondary resources. Ill also adhere to doctrinal overview of case laws.
Thus this dissertation will give a holistic overview of the concept while focusing on some
much-debated aspects that have been mentioned earlier.
Hypothesis
Probable Outcome
The aim of this dissertation is to clarify the present status of the right of private defence and
develop proper understanding of the concept by covering the aspects. There would be an
attempt to understand the loopholes in the legal system and appreciate its achievements as
well. The comparative study of the legal systems of the other nations would help in learning
from their approach and taking effective measures to overcome the shortcomings.
Review of Literature
7 Stanley Yeo , BRINGING CLARITY TO PRIVATE DEFENCE Published by NUJS Law review 2010
apprehended the particular danger which he or she claims to have compelled him or her to
take defensive action.
4. Law of Private Defence (2006).By justice .K.A. Abdul Gafoor. Universal law
publishing Co., New Delhi According to the author in his article traces back the history of
the right of private defence. History is abound with instances of communities exercising their
right to defend their property and life. Every legal system in the world today recognizes and
accepts that every person has an interest in protecting his life and property this natural right to
defend oneself against violent acts of others to protect life and property was transcended into
a codified law i.e., Indian penal code. The author states that the right of private defance
serves a social purpose therefore, it not only extends to the defence of one`s own body, but
also to defend the body of another person.
1. Introduction
2. Evolution
3. Important legal aspects to access private defence
4. Indian legal system
5. Comparative analysis of the legal system of the US and the UK
6. Loopholes in the Indian system
7. Suggestions and Conclusion
Bibliography