When an act, which would otherwise be a certain offence, is not that offence, by reason of the youth, the want of maturity of understanding, the unsoundness of mind or the intoxication of the person doing that act, or by reason of any misconception on the part of that person, every person has the same right of private defence against that act which he would have if the act were that offence.
Illustrations.
(a) Z, a person of unsound mind, attempts to kill A; Z is guilty of no offence. But A has the same right of private defence which he would have if Z were sane.
(b) A enters by night a house which he is legally entitled to enter. Z, in good faith, taking A for a house-breaker, attacks A. Here Z, by attacking A under this misconception, commits no offence. But A has the same right of private defence against Z, which he would have if Z were not acting under that misconception.
Simplified Explanation
Section 36 of the Bharatiya Nyaya Sanhita (BNS), titled “Right of Private Defence Against Act of a Person of Unsound Mind, etc.,” establishes the right of individuals to defend themselves, others, and their property from threats posed by individuals who, due to a lack of mental capacity or other conditions, may not fully understand their actions. This section clarifies that the right to private defense applies even when the threat comes from a person who may not be legally responsible for their actions, such as a person of unsound mind or a child.
Key Points of Section 36
- Right to Defend Against Unintentional Threats:
- Section 36 grants individuals the right to protect themselves, others, and property from harm or injury, even if the act causing the threat is unintentional due to the actor’s lack of mental capacity. This includes individuals who may not have malicious intent but whose actions still pose a risk.
- Applicability to Persons of Unsound Mind or Minors:
- This section specifically includes protection against acts committed by people of unsound mind (such as those with mental illness) and minors who may not understand the consequences of their actions. The right of defense applies because the immediate need to prevent harm exists, regardless of the actor’s mental capacity.
- Proportionality and Reasonable Force:
- As with any instance of private defense, the force used must be reasonable and proportionate to the threat posed. The law allows individuals to take only as much action as necessary to prevent harm, without resorting to excessive or undue force.
- Necessity of Immediate Threat:
- The right to private defense is valid only if the threat is immediate and pressing. For example, if a person of unsound mind behaves violently, the individual threatened is allowed to act in defense only if it is essential to prevent harm at that moment.
- No Retaliatory Actions:
- Actions taken in response to a threat must focus on preventing harm rather than punishing the individual posing the threat. Retaliation or revenge actions do not fall under the protection of Section 36, as the aim is purely defensive and preventive.
- Examples of Private Defense:
- If a person with mental illness unexpectedly behaves aggressively, the threatened individual may use reasonable force to protect themselves or others. Similarly, if a young child unintentionally poses a risk to someone or something, appropriate defensive actions are permitted, keeping in mind the child’s lack of intent.
- Judicial Evaluation of Reasonableness:
- Courts assess whether the force used was genuinely necessary and proportionate, given the circumstances. Judges consider factors such as the severity and immediacy of the threat and whether the defensive action was limited to what was necessary to prevent harm.
Purpose of Section 36
The purpose of Section 36 is to ensure that individuals have the right to protect themselves, others, and property, even from those who may lack full legal responsibility for their actions due to unsound mind or young age. This section recognizes that the need for self-defense arises from the nature of the threat, not the intent behind it. By providing a framework for reasonable defensive actions, Section 36 upholds the principles of personal safety and security, allowing individuals to respond appropriately to threats without infringing on the rights of those who may not fully understand their actions. This balanced approach promotes fair protection for all involved, ensuring that defensive actions are proportionate and justified.
