Bharatiya Nyaya Sanhita: Section 38 – When right of private defence of body extends to causing death

The right of private defence of the body extends, under the restrictions specified in section 37, to the voluntary causing of death or of any other harm to the assailant, if the offence which occasions the exercise of the right be of any of the descriptions hereinafter enumerated, namely:—

(a) such an assault as may reasonably cause the apprehension that death will otherwise be the consequence of such assault;

(b) such an assault as may reasonably cause the apprehension that grievous hurt will otherwise be the consequence of such assault;

(c) an assault with the intention of committing rape;

(d) an assault with the intention of gratifying unnatural lust;

(e) an assault with the intention of kidnapping or abducting;

(f) an assault with the intention of wrongfully confining a person, under circumstances which may reasonably cause him to apprehend that he will be unable to have recourse to the public authorities for his release;

(g) an act of throwing or administering acid or an attempt to throw or administer acid which may reasonably cause the apprehension that grievous hurt will otherwise be the consequence of such act.

Simplified Explanation

Section 38 of the Bharatiya Nyaya Sanhita (BNS), titled “When Right of Private Defence of Body Extends to Causing Death,” outlines the circumstances under which an individual is legally justified in using lethal force in self-defense to protect themselves or others from serious harm. This section clarifies that the right to private defense may extend to causing death if the threat posed is severe and life-threatening.

Key Points of Section 38

1. Right to Use Lethal Force in Extreme Situations:
   • Section 38 provides that the right of private defense of the body may extend to causing death, but only in extreme situations where the threat to life or serious bodily harm is immediate and unavoidable. This right is granted to protect individuals facing grave danger, recognizing that lethal force may sometimes be necessary for self-preservation.
2. Specific Threats Justifying Lethal Force:
   • The use of lethal force is permitted in cases where there is a direct threat of:
     • Death or serious bodily injury
     • Rape or sexual assault
     • Kidnapping or abduction
     • Grievous harm that could cause severe, lasting injury
   • These threats must be immediate and real, justifying the need for a response that could result in death to prevent the harm.
3. Proportionality of Response:
   • Although lethal force is permitted in specific situations, it must still be proportionate to the level of threat. The individual must have no reasonable alternative means to avoid the danger, and the response must be the minimum necessary to neutralize the threat. Excessive force beyond what is required to prevent the danger is not justified.
4. Immediacy of Threat:
   • Section 38 applies only when the threat is immediate, and there is no time to seek assistance or escape. The right to cause death in private defense cannot be exercised preemptively or after the threat has passed; it is strictly limited to situations where the harm is about to occur.
5. Exclusion of Retaliatory Actions:
   • The right to private defense does not include retaliatory actions. Once the threat has been averted or the aggressor is no longer a danger, lethal force is no longer justified. Defensive actions must focus solely on preventing harm, not on punishing the aggressor.
6. Examples of Justifiable Use of Lethal Force:
   • If someone is attacked with a deadly weapon and faces an imminent risk of death, they may use lethal force to protect themselves. Similarly, if an individual is about to be abducted and has no other way to escape, they may defend themselves even if it leads to the death of the attacker.
7. Judicial Assessment of Necessity and Reasonableness:
   • Courts examine the circumstances to determine if the use of lethal force was necessary and reasonable. Factors such as the severity and immediacy of the threat, the intent behind the defensive action, and whether lesser force could have sufficed are considered to decide if the act qualifies as lawful self-defense.

Purpose of Section 38

The purpose of Section 38 is to provide individuals with the right to protect themselves and others from extreme threats to life and safety by allowing the use of lethal force as a last resort. By defining when this right applies, the section balances the need for personal security with the principle of proportionality, ensuring that lethal force is used only in genuine situations of imminent, serious harm. Section 38 upholds the right to life and self-preservation, allowing individuals to defend themselves in life-threatening situations, while emphasizing the importance of restraint and responsibility in exercising this right.