Saturday, June 18, 2016

Did the Supreme Court just 'Expand' Self-Defence?

I'm on holiday, which means no work-related reading (as far as possible). But it was interesting to see many major newspapers running an article that the Supreme Court had 'expanded' the scope of the right to self-defence/private defence (Times of India, New Indian Express links here). Naturally, it piqued curiosity and got me to read the judgment. At the outset, I cannot fathom why the piece has come in the news only yesterday, i.e. 16th June when the decision itself came on the 3rd. That's a speculative aside, fuelled by conspiracy theories germane to the kind of reading I'm doing right now. Also, I found the description in the Times a tad disconcerting: "one can take the law into hands if parents assaulted". A complex branch of the common law so horribly oversimplified in a tenor with apparently dangerous outcomes. Sigh.

Self-Defence in the Indian Penal Code, 1860
Of course, none of the pieces actually mentioned that there are statutory provisions on the right against self-defence. Sections 96-106 of the Indian Penal Code [IPC] painstakingly detail the various facets of this right, and have to be read together with the Second and Fourth Exceptions to Section 300 IPC. Importantly, the Supreme Court decision in question - Bhagwan Sahai & Anr. v. State of Rajasthan [Crl. Appeal 416/2016, decided on 03.06.2016] also doesn't discuss or mention these. 

Self-defence is a justificatory defence as opposed to an excusatory one. An excusatory defence is not based on the circumstances of conduct but the nature of the actor. For instance, insanity of the actor excuses her conduct from being considered an offence. As against this, if you are not insane or forcefully drunk and were to, say, hit X with a stick, that would normally be an offence. But if you were doing this because X had tried to stab you with a knife, then there is a justification behind your conduct. This justification is what makes it a non-offence.  Although the IPC doesn't bother too much about the different kinds of defences, a little clarity is useful to help understand their operation. 

The contours of this concept are etched through Section 96 to 106 in the IPC. Two things are of primary importance for this post. One, one has a right to defend his own body an the body of another against an offence affecting the body, as well as a right to defend his or another's property from offences of theft, robbery, mischief or criminal trespass [Section 97]. Two, the right of defence begins as soon as a reasonable apprehension of danger to the body arises, and continues till such apprehension remains [Section 102]. Furthermore, one has a very limited right of defence against acts done by public servants, or done under the authority of public servants [Section 99]. 

A last word before we move to the decision itself on the defence under Sections 96 to 106, and the exceptions under Section 300 which I flagged above. If you successfully argue that your conduct was protected under the right of self-defence/private defence under Sections 96 to 106 then it warrants an acquittal. Successfully pleading the conduct falls in the Second or Fourth Exception to Section 300 means the culpable homicide committed would not amount to murder, and thus be punished with the lesser sentence under Section 304 as opposed to Section 302.

Did the Supreme Court Really Expand the Defence?
The failure to actually mention any provision on the issue of self-defence makes it difficult to discern whether the argument was on the defence itself or the Exception to Section 300. But as the Court notes that the Appellant argued an acquittal was warranted, we can safely assume it is the defence itself that was argued at the trial. The facts are conveniently stated: a fight seems to have arisen over land between two sets of parties. The Appellants' father was grievously injured and ultimately died, while the Appellants inflicted various injuries themselves on members of the opposite party. The trial court had convicted the Appellants on inter alia Attempt to Murder but the High Court had reduced that to a conviction for Attempt to commit Culpable Homicide.

The Supreme Court reversed the decision and acquitted the Appellants. The primary reason for doing so was the failure of the prosecution to reveal the exact nature of circumstances before the trial court. It appears that the prosecution had omitted to mention that the injuries arose out of a cross-fight where a case had also been instituted against the alleged victims. This merited adverse inferences against the prosecution case and so the Court viewed the Defence version more favourably. Thus, the Court believed the version that the Appellants were only retaliating to their parents being assaulted by the alleged victims, because of which their father ultimately died. The Court summarily observed that this gave legitimacy to the claim for self-defence. 

Once the Court agrees with the Defence version, that their conduct was retaliatory in nature, the plea of self-defence automatically gains credibility. The lower courts hadn't done so as they agreed with the prosecution version of events, which omits the part about the dispute being a open fight. So is the view that seeing one's parents getting assaulted is grounds for self-defence a significant expansion of the law? A bare perusal of the facts as mentioned in the decision read together with the provisions of Section 97 make it clear that this well-within the current scope of self-defence. I have a right to defend the body, as well as the property, of another person already conferred under the IPC. So, I fail to understand the belated hype generated in the news behind this decision.

I may of course be mistaken. There may exist a decision which constricted the right of self-defence that this significant decision has done away with which the newspapers are aware of and I am not. Sadly, though, neither the significant decision nor the newspapers actually state any such decision. Perhaps this was just another instance of that old saying: don't trust what the papers say, ever.

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