Bharatiya Nyaya Sanhita: Section 39 – When such right extends to causing any harm other than death

If the offence be not of any of the descriptions specified in section 38, the right of private defence of the body does not extend to the voluntary causing of death to the assailant, but does extend, under the restrictions specified in section 37, to the voluntary causing to the assailant of any harm other than death.

Simplified Explanation

Section 39 of the Bharatiya Nyaya Sanhita (BNS), titled “When Such Right Extends to Causing Any Harm Other Than Death,” outlines the circumstances under which an individual is justified in using force, short of causing death, to defend themselves or others. This section establishes that the right to private defense may include causing non-lethal harm to prevent threats, provided that the harm is necessary to prevent an unlawful attack.

Key Points of Section 39

1. Right to Use Non-Lethal Force:
   • Section 39 grants individuals the right to cause harm, other than death, when defending themselves, others, or property against unlawful acts. This includes the use of reasonable force to prevent injury, theft, or other criminal acts without resorting to lethal measures.
2. Applicable Situations:
   • The right to cause non-lethal harm applies in situations where the threat does not justify lethal force but does require immediate action to prevent harm. These situations may include:
     • Physical assault that does not endanger life
     • Theft, burglary, or trespassing
     • Minor assaults or attempts to damage property
   • The harm caused must be proportionate to the threat faced.
3. Proportionality of Response:
   • Section 39 emphasizes that the harm caused must be reasonable and proportional to the level of threat. The individual may use only the necessary amount of force to neutralize the threat. Excessive or unnecessary force beyond what is required to stop the danger may not be justified under this section.
4. Focus on Preventing Harm, Not Punishment:
   • The use of force in private defense should be strictly preventive. Once the threat has been averted, any further action taken as retaliation does not qualify as private defense. The right under Section 39 applies only as long as it is necessary to prevent immediate harm.
5. Exclusion of Lethal Force:
   • Section 39 specifically excludes the right to cause death; it only covers actions that result in lesser harm. If the threat is not severe enough to justify lethal force, the individual must use non-lethal means to protect themselves or others.
6. Examples of Non-Lethal Defensive Actions:
   • If a person is physically attacked in a way that does not threaten their life, they may use force, such as pushing or restraining the attacker, to defend themselves. Similarly, if someone is trying to steal or vandalize property, the owner may use reasonable force, such as grabbing or physically blocking the individual, to stop the act.
7. Judicial Evaluation of Necessity and Reasonableness:
   • Courts assess the nature of the threat, the necessity of the response, and the degree of harm inflicted to determine if the use of force falls within the boundaries of lawful private defense. Judges consider whether the response was proportionate and confined to what was necessary to prevent the threat.

Purpose of Section 39

The purpose of Section 39 is to allow individuals to protect themselves, others, and their property by using non-lethal force when faced with unlawful aggression. This section ensures that people can respond to threats with reasonable measures without fear of criminal liability, provided they act proportionately. By establishing clear boundaries for the use of non-lethal force, Section 39 promotes responsible and measured self-defense, upholding individuals’ rights to safety and security while maintaining respect for proportionality in the application of defensive actions.