Section 38 of the Bharatiya Nyaya Sanhita (BNS), 2023
Section 38 of the Bharatiya Nyaya Sanhita (BNS), 2023, outlines the conditions under which an individual may exercise the right of private defence of the body, including causing death to an assailant. This provision is part of Chapter 3, titled "General Exemptions," and serves to protect individuals acting in genuine self-defence against unlawful aggression
Key Provisions of Section 38
Under Section 38, the right of private defence of the body extends to the voluntary causing of death or any other harm to the assailant, provided the offence which occasions the exercise of this right falls under any of the following categories:
Assault causing reasonable apprehension of death
Assault causing reasonable apprehension of grievous hurt
Assault with the intention of committing rape
Assault with the intention of gratifying unnatural lust
Assault with the intention of kidnapping or abducting
Assault with the intention of wrongfully confining a person under circumstances that may reasonably cause him to apprehend that he will be unable to have recourse to public authorities for his release
Act of throwing or administering acid, or an attempt to do so, which may reasonably cause the apprehension of grievous hur
These provisions align closely with the corresponding section in the Indian Penal Code (IPC), specifically Section 100, which also delineates situations where the right of private defence extends to causing death. However, the BNS 2023 introduces clearer language and additional scenarios, such as acid attacks, to address contemporary concerns.
Restrictions Under Section 37
Section 37 of the BNS imposes certain restrictions on the exercise of the right of private defence. It stipulates that the right does not extend to causing death or any harm to the assailant if:
The assault is not of a nature that reasonably causes apprehension of death or grievous hurt
The defender is aware that the assailant is a public servant acting in good faith
The defender has time to seek the assistance of public authorities
These restrictions ensure that the use of force in self-defence is proportionate to the threat faced and is exercised within the bounds of law.
The inclusion of Section 38 in the BNS 2023 provides a legal framework that balances the right to self-defence with the need to prevent misuse of force. It empowers individuals to protect themselves against serious threats while ensuring that such actions are justified and not excessive. Legal professionals and law enforcement agencies must be well-versed in these provisions to uphold justice and maintain public trust.
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