PRIVATE DEFENCE VS. LIFE OF INNOCENT PERSON : AN ANALYSIS- BY S.MAHADEVI

INTRODUCTION

In India, everyone enjoys the basic rights to lead a normal life and state machineries are established to preserve such rights of the people. Though under certain exceptional circumstances, when one has no recourse to state machineries, one shall protect himself/herself from the aggressor and it is called right to private defence. It is enshrined under chapter-IV from section 96 to 106 of Indian Penal Code. The chapter initiates by emphasising that “nothing is an offence which is done in the exercise of right to private defence” (section 96, IPC) and such right to private defence of body is subject to limitations provided under section 99 and 100 of IPC. Further it is clear from the former statement that self-preservation is the basic feature of the right to private defence. However, section 106 of IPC cannot be vindicated as it extends to harm or injure an innocent individual who have no connection with the aggression in the course of exercising private defence. In this article, the author is not intended to punish the one who has effectuated the right of private defence under section 106 of IPC but to spot out the conundrum of section 106 of IPC which easily takes away the right of the innocent person who have no give-and-take in the attack.

CONUNDRUM OF SECTION 106, IPC

In case of Section 106 of IPC, it says that “..he cannot effectually exercise that right without risk of  harm to an innocent person his right or private defence extends to the running of that risk”. However, according to Salmond, every right has a corresponding duty & vice versa, and right to private defence is of no exception i.e., right of a person ends, where the right of other person arises. So that right of one cannot extent to the level of harming others. Hence, even though it comes under the general exception, from the innocent person point of view, section 106 is absurd in law and fails to encompass the justice as provided in the law of the land. Possibly, one can take the defence of actus non facit reum nisi mens sit rea, still, it cannot justify the act of causing injury to the innocent who has not involved in the assailment because IPC accuses the accused even if there is no intention in certain cases, for example, section 304 (part B). Further it is certain that right to private defence gain its root from “necessity knows no laws”, but, justitia nemini neganda est prevails over the former as it is jus naturale. Therefore, conundrum of section 106 of IPC which puts the life of an innocent person in jeopardy is not only defeat the plinth of IPC but also contra bonos mores.

SECTION 106 OF IPC- INCONSISTENT WITH LIMITATIONS OF PRIVATE DEFENCE

In State of Karnataka vs. Madesha [(2007) 7 SCC 35], held that section 106 should be read in the light of section 100. When looking into section 100- “right of private defence of the body extends, under the restrictions mentioned in the last preceding section, to the voluntary causing of death or of any other harm to the assailant..”, it is crystal clear from the above statement that private defence is available only against the assailant and not against the innocent individual and so it is not excusable to cause injury to an innocent under the ambit of section 100. Additionally, one of the limitations of section 99 is that one should not inflict more harm than necessary to effectuate the defence. However, the right to private defence specified in section 106 which has used by the victim/accused against the innocent person is beyond the necessary force. Therefore, such law which leads to ambiguity must not be entertained.

CONSTITUTIONALITY OF SECTION 106, IPC
Constitution of India is the Grundnorm and whatever law deviates from the principles enshrined under it will be declared as unconstitutional through judicial review. Certainly, section 106 violates Justice which is the basic structure of the constitution (S.R.Bommai vs. UOI, 1994 AIR 1918). According to Kesavananda Bharati vs. State of Kerala [(1973) 4 SCC 225], State cannot make law that violates the basic structure of the constitution and hence section 106 of IPC which extend its right of private defence to harm an innocent individual is constitutionally invalid. Further, it is ultra vires to the Constitution as it infringes the fundamental right (i.e., right to life provided under article 21 of the Constitution of India) of that innocent person which is applicable to him through doctrine of horizontal application  because section 106 likely to harm or  takes away life of an innocent. Therefore, right to private defence which runs to risk the life of an innocent person infringes the basic human right (section 106) and so it is unconstitutional.

CONCLUSION
It is agreeable that right to private defence is much needed and effective to guard oneself. However, such right to defence should be confined only between assailant and victim and it should not run to the extend of harming/injuring others who have nothing to do with the aggression. Hence, state shall consider to severe the disputed portion of law i.e., section 106 of IPC, which abridges the basic human right of an innocent, through doctrine of severability. Eventually, when an innocent is affected, we cannot pass-on by blaming the fate as rule of law is not working on the basis of fate but on  justitia regnorum fundamentum.