Right of self defence
By Maxwell Pereira
maxpk@vsnl.com


The right of self-defence is something enshrined in our Constitution, and confirmed by our Criminal Justice Administration System. It forms an important part of the Indian Penal Code justifying a person's action to defend himself during an attack. Nothing, not even taking the assailant's life, is an offence when one is trying to save his own life. In fact in Delhi, the police department has been encouraging citizens to be conscious of safety requirements to protect themselves and to protect their own including their homes. Each time a brave one exhibits courage to stand up to an intruder, a night burglar or a robber, the police recognize their initiative, presence of mind and courage to confront or help apprehend the anti-social, by rewarding the individual - as an example for others to emulate.

Funnily this 'right of self defence' is interpreted some what differently in England, whose very people helped us write and codify our present laws. In a recent debate there, thousands of UK citizens demanded the right to defend their homes, from an intruder. 'Why should the victims be reasonable?' …screamed a headline, demanding a change in law to give householders the unqualified right to use force against intruders. By implication, one concludes there is a bias in the existing law and/or its application, in favour of the intruder!

A judgement last week of Justices A K Mathur and D K Jain has qualified this right of self defence in India as available only to the person attacked and not to the assailant”. The aggressor, the judgement clarified, forfeits his right of self defence by being an aggressor, since the threat to life was looming on the victims and not on the aggressors.

By inference, this analogy would also impact a particular aspect of field policing rampantly in practice in Delhi. The Delhi Police are in the habit of registering cross cases when fights occur between parties irrespective of which one of them is the aggressor. Unscrupulous police field officers either to save themselves the bother of in-depth investigation or often in connivance with the aggressor party resort to this highly unethical and improper approach to investigating a dispute, fight or a scuffle.

This happens often when a landlord desirous of evicting a tenant employs goons for the purpose, with or without prior collusion with the local police. When threats fail to get the tenant to vacate, the goons try to evict forcefully, invariably resulting in a scuffle or a fight when the poor hapless tenant resists forcible eviction. When the police land up in response to an emergency call to the control room, the right thing expected is for the police to arrest the aggressor, register a case and prosecute him. A shrewd policeman knows this well, and will ensure he doesn’t bungle on this requirement.

But more often than not the story does not end there. The aggressor would have found means for the police to register a counter case against the victim party too by engineering a sharp edged injury through a nail or broken glass. Attracting registration of a case under section 324 IPC for an injury in medico-legal parlance referred to merely as “simple-sharp”… and in the case of the loss of just a tooth an even tougher 325 IPC section for causing grievous hurt. And irrespective of the fact that he was the aggressor, the police very righteously obtain his complaint too to register a case against the victim tenant, at whose instance at best a minor case of trespassing would have been registered against the aggressor. Slightly different but similar modus operandi when money-bags have to be targeted. Very easy, like in an industrial dispute between a wealthy industrialist and his striking worker.

Such misuse of the important right of self defence not only in practice in police field formations, but even reflected in judicial attitude as evident in many judgments, has been sought to be remedied by justices Jain and Mathur: "Persons who are members of the aggressor party cannot claim right of self-defence". In most such cases, the assailant's plea of self-defence is based on injuries they received during the process of attack on the victims who tried to defend themselves causing small injuries to the aggressors.

Britsh jurists have clarified how far a person could go to protect his home; pointing out that Common Law has always supported the principle that one could not retreat further than the bounds of one's home. To Victorian legislators the protection of the dwelling and its occupants was paramount, particularly in respect of the night-time offence of burglary. Section 31 of the Offences against the Person Act 1861 in England, made it an offence to set any spring-gun, 'man-trap' or other 'engine', with intent to inflict grievous bodily harm, except when set or placed from sunset to sunrise, in a dwelling house for the protection thereof.


Now explaining the basic principle underlying the doctrine of right to self-defence, the Indian judgement of Dec 8 has now ruled: "When an individual or his property is faced with a danger and immediate aid from state machinery is not readily available, that individual is entitled to protect himself and his property.” The person facing threat to life and property is entitled to use force or even cause death of the assailant. But the force used to defend "must not be unduly disproportionate to the injury which is sought to be averted or which is reasonably apprehended".

"The means and force a threatened person adopts at the spur of the moment to ward off the danger and to save himself or his property cannot be weighed in golden scale" the judgement has further said, clarifying however that “the exercise of the right of private defence can never be vindictive or malicious as this would be repugnant to the very concept of private defence”.

12.12.2006: Copy Right © Maxwell Pereira: 3725 Sector-23, Gurgaon-122017. tel no: 0124-4111026, 2360568; on website www.maxwellpereira.com ; email: mfjpkamath@gmail.com

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