The Moral (& Legal ) Case for Private Self Defense

It is the first duty of man to help himself. The right of self-defense must be fostered in the citizens of every free country. The right is recognized in every system of law and its extent varies in inverse ratio to the capacity of the state to protect life and property of the citizens.

With the government now backing vigilante Anti-Romeo squads in Uttar Pradesh and Uttarakhand, citizens are left with no choice but to take care of their own security. The Indian legal system also recognizes its citizens’ legal right to protect themselves.

One of the peculiarities of the anti-Romeo squads is the seeming lack of a G.O. to back it. Which government policy has allowed these squads, private and official to flourish? Where is the memo? What is the G.O. number? Who has this authority and how has it been designated? Which piece of official paper proves it?

It is very likely that no piece of paper exists to prove it. That this is how the wink and nod bureaucracy works. There is paper to prove, however, that your rights exist. Use them.

First off, the disclaimer.

This writer is not a lawyer. This is not legal advice, but an introduction to the principles of political philosophy, law and the relevant bare acts of the Indian Penal Code (IPC 1860) that define the principle of  Private Defense

The most important thing to know first, is that Private Defense laws exist. 

It is a national shame that we don’t know our own laws. It is a national shame that we don’t have activist lawyers who will educate us, stand up for us and tell us our rights. 

It’s a national shame that The Honorable Opposition won’t fight for our rights.

It doesn’t matter which opposition it is. Whether it is the Congress under the BJP or the BJP under the Congress or the TDP or the TMC.

In an elected democratic system, the right to self-defense is typically handed over to The State as duty to protect.

Even in a functioning democracy, it is not always possible for the police to be everywhere, all the time. So citizens help the state by retaining the right to self defense with themselves in a limited capacity. Even the British Raj understood this and kept provisions of law under IPC Sections 99 to 106 for the Right To Self Defense.

But imagine a non-functional state. Or worse, or dystopian state that actively connives with thugs to attack you and your property. 

Imagine a democratic system in which The Opposition is silent, and men in uniform just stand by and video record vigilante groups beating up citizens on the road, merely for the crime of walking together.

In such a society it is clear that :

(a) The Opposition is no longer a party. The only Opposition is The People.

(b) The State has tacitly declared that it has given up its duty to protect. The formal pronouncements of some policemen being suspended are just that — a formality.

In such a scenario, self defense not only becomes the only road to take, it become an immutable moral principle. Each of us not only has a right, but a moral responsibility to take care of ourselves. And the ones we love. 

This is not a new principle or a new discovery. It is age old.

In the law books that our courts once upheld and still might, there is a legal right to private defense.

In plain English, these are the rules:

If no policemen are nearby, you have a right to physically defend yourself with any means necessary. If you perceive any physical  threat to yourself, your loved ones or your property (not just the threat of death)– but grievous bodily harm, rape, and assault of any kind – you can protect yourself.

The only caveats are:

  1. The person is not a government official acting in his capacity as a government official. This requires that he show his identity. And subsequently show the Government order (G.O.) under which he is acting.
  2. That the person is not deputed by a government official and has written orders by relevant government official.
  3. You have to prove that you did not inflict more harm than was necessary to protect yourself.

Here are the laws that delineate your right to private self defense. In states where vigilantism is becoming a major problem, take these and go talk to a lawyer:

IPC Section 96

Things Done in Private Defense

Nothing is an offence that is done in the exercise of the right of private defense

IPC Section 97

Right of Private Defense of the Body and of Property

Every person has a right, subject to section 99, to defend:

  • First – His own body, and the body of any other person, against any offense affecting the human body
  • Second – The property, whether movable or immovable, of himself or of any other person, which is an offence falling under the definition of theft, robbery, mischief, or criminal trespass; or which is an attempt to commit (the above)

IPC Section 99

Acts Against Which there is No Right of Private Defense

 

There is no right of private defense against an act which does not reasonably cause the apprehension of death or of grievous hurt, if done, or attempted to be done, by a public servant acting in good faith under colour of his office, though that act, may not be strictly justifiable by law.

There is no right of private defense against an act which does not, reasonably cause the apprehension of death or of grievous hurt, if done, or attempted to be done, by the direction of a public servant acting in good faith under colour of his office, though that direction may not be strictly justifiable by law

There is no right of private defense in cases in which there is time to have recourse to the protection of the public authorities.

Extent to which the right may be exercised-

The right of private defense in no case extends to the inflicting. of more harm than it is necessary to inflict for the purpose of defense.

Explanation 1- A person is not deprived of the right of private defense against an act done, or attempted to be done, by a public servant, as such, unless he knows or has reason to believe, that the person doing the act is such public servant.

Explanation 2- A person is not deprived of the right of private defense against an act done, or attempted to be done, by the direction of a public servant, unless he knows, or has reason to believe, that the person doing the act is acting by such direction, or unless such person states the authority under which he acts, or if he has authority in writing, unless he produces such authority, if demanded.

IPC Section 102

Commencement and Continuance of the Right of Private Defense of the Body

The right of private defense of the body commences as soon as a reasonable apprehension of danger to the body arises from an attempt or threat to commit the offence though the offence may not have been committed; and it continues as long as such apprehension of danger to the body continues


Good Luck. 

EOM

Sarita 

Representative Picture Credit Radka Hlisnikovska


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