TWO ASPECTS OF PRIVATE DEFENCE
| Author | LEE KIAT SENG |
| Date | 01 December 1996 |
| Published date | 01 December 1996 |
| Citation | (1996) 8 SAcLJ 343 |
The right of private defence sometimes attracts a rather robust application of the law to the facts. It may be ventured that because a lot of the cases, in which the plea of self defence is raised, revolve very much around findings of fact, a cavalier approach is sometimes taken without much of an attempt being made to analyse the law before applying it to the facts which emerge. This may spell danger as such a robust approach may overlook the slightly more involved intricacies of some of the questions that arise. Two particular areas will be highlighted with reference to decided cases. The first involves the question of when there can be said to be time to have recourse to public authority, such that the right of private defence is extinguished. The second relates to whether the right of private defence continues where a person is attacked by an armed assailant but he manages, in the course of the struggle, to wrest control of the weapon.
In order to better understand the limits that statute and case law place on the right of private defence, one must first look to the reason why the right of private defence is essential. The nature of the right makes it easier to understand why and how the right is circumscribed.
The right of private defence is a justificatory defence in that it involves a particular situation where the use of force is justified. It is based on the premise that although a prohibited harm or a prohibited result may have been wilfully caused by the person who claims this defence, the use of force is justifiable. The ambit of this defence really turns on the relationship between the State’s role in protecting its citizens and the individual’s instinct of self-preservation. The extent to which the exercise of this right is recognised has to depend, to a large extent, on the capacity of the State to enforce laws for the protection of its citizens. The relationship between these two matters is an inverse one. Where the State is able to protect its citizens, then correspondingly, the individual’s right to use force to ward off unlawful aggression is accordingly reduced. However, where the State is unable to afford the individual protection, the law makes due allowance for the individual to have the remedy of self-help; the individual is allowed to take matters into his own hands and make appropriate provisions for his own protection. This has been pointed out by Huda in his series of Tagore Law Lectures delivered in 1902, where he opined:
The right is recognised in every system of law and the extent of the right varies in inverse ratio to the capacity of the State to protect the life and 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 policeman to dog the steps of every badmash in a country or to be present at every riot or affray. This
necessary limitation on the resources of the State has given to the subject pro tanto the right to take the law into his own hands and provide for his own safety.1
This view is consistent with the view taken under the common law.2
It is therefore clear that the basic principle with regards to the small measure of self-help available to the individual is that where the State is unable to offer any protection or at least timeous protection, the State sanctions, within reasonable limits, acts of the individual which are necessary to protect his own interests and rights. The whole idea of self-help and its relationship to the monopoly of the State to punish and the capacity of the State to protect is succinctly put by Mayne3:
The whole law of self-defence rests on these propositions: (1) that society undertakes, and, in the great majority of cases, is able to protect private persons against unlawful attacks upon their person or property; (2) that, where its aid can be obtained, it must be resorted to; (3) that, where its aid cannot be obtained, the individual may do everything which is necessary to protect himself; but (4) that the violence used must be in proportion to the injury to be averted, and must not be employed for the gratification of vindictive or malicious feelings. It is evident that proposition (1) is the basis of the entire law. No one would dream of applying the refinements of the Indian Penal Code to an unsettled country whereby everyone carries his life in his hand; and proposition (2), rests upon and assumes proposition (1).4
As can be seen, the two themes central to the right of private defence is that, on the one hand, the primary duty of the State to maintain law and order must not be usurped by its subjects, while, on the other hand, there must be sufficient provision for the protection of its subjects in all situations.5
However, no matter how important the right of private defence might be, it must always be noted that it is only a right which is derogated to the individual by the State for use in situations where the State is unable to render effective assistance in meeting with unlawful aggression and that it is meant only for the protection of the individual’s rights and it should not therefore be used as a cloak for retributive or punitive ends, which would then be encroaching on the monopoly of the State to judge and to punish.6 Thus, all laws allowing the right of private defence must ensure that the right granted by necessity is not abused and is restricted to the situations and legitimate purposes for which it is derogated by the State to the private individual.7
Under the Penal Code, it may well be that restrictions to the right of private defence have been relaxed to encourage a greater sense of self-help. In fact, the authors of the Code have admitted that they have given a wider scope to the right of private defence than would have been recognised under English law, as it then stood:
It may be thought that we have allowed too great a latitude to the exercise of this right; and we are ourselves of opinion that if we had been framing laws for a bold and high-spirited people, accustomed to take the law into their own hand, and to go beyond the line of moderation in repelling the injury, it would have been fit to provide additional restrictions. In this country the danger is on the other side; the people are too little disposed to help themselves; the patience with which they submit themselves to the cruel depredations of gang-robbers, and to trespass and mischief committed in the most outrageous manner by bands of ruffians, is one of the most remarkable, and at the same time one of the most discouraging symptoms which the state of society in India presents to us. Under these circumstances we are desirous rather to rouse and encourage a manly spirit among the people than to multiply the restrictions on the exercise of the right of self defence. We are of opinion that all the evil which is likely to arise from the abuse of the right is far less serious than the evil which would arise from the execution of one person for overstepping what might appear to the Courts to be the exact line of moderation in resisting a body of dacoits.8
Private defence under the Penal Code deals with not just defence of the person, but extends to defence of property as well. However, it is not the intention of this article to explore the ambit of the right of private defence of property.9
The sections dealing with the right of private defence of the person leave much to be desired insofar as logical sequence is concerned. However, a certain breakdown of the sections may be discerned such that the sections would have some semblance of thematic organisation.
Section 96 encapsulates the main rule on private defence, where it lays down that:
Nothing is an offence which is done in the exercise of the right of private defence.
Section 97 then lays down that every person has a right to defend himself or anyone else against acts which are offences against the human body.10 The thing to note here is that the genre of offences affecting the human body is covered by Chapter XVI of the Penal Code.11 What is apparent here is that in order for the right of private defence of the person to arise, an offence under Chapter XVI must be involved. That much would appear to be a restriction of the scope of the defence.12
As was suggested earlier, the right of private defence does not exist without there being limits placed on it to ensure that the right is exercised in the situations for which it is contemplated to apply and for the legitimate purposes for which the right has been handed over by the State to the individual. This goes some way to ensuring that the right, invaluable though it may be, is not exploited by the individual for base and personal aims. Section 9913 is where these limits are laid down.
Section 9914 is an interesting amalgamation of two distinct themes. One deals with the right of private defence against public servants15 while the other is concerned with the limits placed on the right of private defence. Section 99(3) provide that there is no right of private defence when there is time for recourse to the protection of public authorities16, while Section 99(4) encapsulates the proportionality of force rule, ie. the right of private defence does not extend beyond the inflicting of harm necessary for the purpose of self defence.17
It must be noted that these two restrictions imposed by Sections 99(3) and (4) respectively are consistent with the self-help and necessity rationale behind the right of private defence. The right of private defence is necessarily circumscribed by the possibility of availing oneself of the assistance of the State, since it is the very situation where such assistance or protection is not available at all...
To continue reading
Request your trial