INTRODUCTION OF THE RIGHT OF PRIVATE DEFENSE:-
THINGS DONE IN PRIVATE DEFENSE:–
Nothing is an offence which is done in the exercise of the Right of Private Defense.
(RATANLAL & DHIRALAL)
The Right of Private Defense is an justifiable defense. In such a defense the act committed by the person is an office but it is deemed to be justifiable, because it is done for the purpose of repelling unlawful aggression or other circumstances. There are eleven (11) sections in Penal code which codify the rules & limitations on the Right of Private Defense which are found floating under English criminal law.
GENERAL PRINCIPLES OF RIGHT TO PRIVATE DEFENSE:
A. BASIS OF THE RIGHT:- To defend oneself is a natural instinct in a man which he has in common with every other animal.
As observed by B. PARKER :- Nature prompts a man who is struck to resists; & he is justified in using such a degree of force as well prevent a repetition.
So also DONOVAN J. observes that the law of self defense is—not written but born with us, which we have not learnt, or received by tradition, or real, but which we have sucked in & imbibed from Nature itself; a law which we are not trained in, but which is ingrained us, namely, that if our life is in danger by robbers or enemies from violence, every means of securing safety is honorable. For laws are silent when arms are raised & do not expect to be waited, for when he who waits will suffer an undeserved penalty. Reason has taught this law to learned men, & necessity to barbarians, & customs to all nations, & Nature to wild beasts, that they are at all times to repel violence by whatever means they can without deciding that all men may fall by the weapons of their enemies.
SHAMSHUL HUDA also observes:–The right is recognized in every system of law & the extent of the right varies in inverse ratio to the capacity of the state to protect the life & property of the subject. The reason is obvious; this duty is primarily the duty of the state. But, no state, no matter how large its resources can afford to depute a police men to dog the steps of every a dishonest or unprincipled man in a country or to be preserved at every riot or affray.
Of course, the extent of the recognition of this right of private defense depends upon the capacity and resources of the State to protect its subject. Where the state cannot afford this protection to its subject, it allows the subject to take the law into its own hands and to provide its own safety. This right, therefore, is greater in extent among the turbulent population than in others.
B. DEVELOPMENT OF THIS RIGHT :– “ Might is Right” was the dominating rule. The most important considerations with regard to the right of self –defense are two fold, namely, first, that the primary duty of the society to maintain peace & order must not be allowed to be usurped by private individuals, & secondly, that three must be some means to protect individual rights in all cases & at all times. These considerations have compelled the state to recognize the right of self defense in cases where it cannot afford its hands of protection , but it negatives this right in cases when it can do it.
C. NECESSITY OF THE RIGHT :– The right of self defense is, of course, very necessary. However, it is not a necessary evil. For POLLOCK Observes:– It would be a great mistake to regard self-defense as a necessary evil suffered by the law. The right is a just & perfect one. To “repel force by force,” as already stated , is the common instinct of every creature that has means of defense. And when the original force is unlawful, this natural right may be approved by law. Sudden & strong resistance to un-righteous attack is not merely a thing to be tolerated in many cases it is a moral duty.
BENTHAM Stressing the necessity of this right observes:– This right of defense is absolutely necessary. The vigilance of magistrates can never make up for the vigilance of each individual on his own behalf. Take away the right, & in so doing, you become the accomplice of all bad men.
D. IMPORTANCE OF THE RIGHT:– The importance of this right cannot be over emphasized in the civilized states as well as in states which are not well civilized because the duty of the state to protect the rights of its members in all cases & at all times is the primary duty & therefore this right assumes an importance whenever there is an apprehension of danger to the individuals at the hands of aggressors. With the progress of civilization the conception of property is gaining in-value & consequently the desire of appropriation is also growing correspondingly in proportion, thus necessitating the occasions for exercise of this right as an effective means of protection against wrong doers.
When a person is suddenly attacked by aggressors & the effective intervention by the police is not possible, then the question is one of choice between a tame submission to the aggressor with the hope of future redress by the public authorities & an effective resistance to such an aggression by taking the law into his own hands.
E. ITS LIMITATIONS:—
No right is without an obligation or limitation. This right has two restrictions:-
1. That it cannot be exercised when the protection of the state authorities can easily be obtained, & ,
2. Only an amount of force or violence is allowed as may be necessary to meet the situation.
These Limitations are as important as the right itself. It should be remembered that this right is a right only of self-defense, not one of punishment.
DICEY has very correctly observed:– The rule which fixes the limit to the right of self help must, from the nature of things, be a compromise between the necessity, on the one hand, of allowing every citizen to maintain his rights against wrong-doers, & a necessity, on the other hand, of suppressing private warfare. Discourage self help & loyal citizens become the slaves of ruffians. Over- stimulation self assertion, & for the arbitrament of the courts one should substitute the decisions of the Swords or the revolver.