Bharatiya Nyaya Sanhita, 2023
Section 38
When right of private defence of body extends to causing death
The right of private defence of the body extends, under the restrictions specified in section 37, to the voluntary causing of death or of any other harm to the assailant, if the offence which occasions the exercise of the right be of any of the descriptions hereinafter enumerated, namely:—
(a) such an assault as may reasonably cause the apprehension that death will otherwise be the consequence of such assault;
(b) such an assault as may reasonably cause the apprehension that grievous hurt will otherwise be the consequence of such assault;
(c) an assault with the intention of committing rape;
(d) an assault with the intention of gratifying unnatural lust;
(e) an assault with the intention of kidnapping or abducting;
(f) an assault with the intention of wrongfully confining a person, under circumstances which may reasonably cause him to apprehend that he will be unable to have recourse to the public authorities for his release;
(g) an act of throwing or administering acid or an attempt to throw or administer acid which may reasonably cause the apprehension that grievous hurt will otherwise be the consequence of such act.
Why this exists
This provision continues the private-defence framework first laid down in the Indian Penal Code, 1860 (Section 100), reflecting the idea that the law cannot always protect a person at the exact moment of an attack, so individuals must be allowed to protect themselves. The law tries to balance a person's right to survive and protect their body against the risk of excessive or vengeful violence, so it limits the right to use deadly force to specific grave situations rather than allowing it in every case of assault. The addition of acid attacks (clause g) reflects a modern legislative response to the rise of acid violence, especially against women, and was added to the IPC via amendment before being carried into the BNS.
How courts read it
Indian courts, interpreting the identical predecessor provision (IPC Section 100), have consistently held that the apprehension of death or grievous hurt must be reasonable and immediate, not speculative or based on a remote possibility. Courts have emphasized that the accused need not wait until they are actually struck fatally—the right arises the moment a reasonable apprehension of such danger exists. However, courts have also cautioned that this right is not a license for retaliation once the danger has passed, and the force used must correspond to the seriousness of the threat, read together with the general restrictions in the preceding section (now Section 37 of the BNS).
Common misconceptions
- Myth: This law lets you kill or seriously hurt someone for any attack or insult.
Fact: It only applies to specific serious situations listed in the law—like fear of death, grievous hurt, rape, kidnapping, wrongful confinement without hope of rescue, or acid attacks—not minor scuffles or insults. - Myth: You can use deadly force even after the attacker has been stopped or has fled.
Fact: Courts have held that the right of private defence lasts only as long as the danger is real and ongoing; using force after the threat has ended is not protected under this provision. - Myth: This section works on its own, without any conditions.
Fact: This section explicitly operates only within the restrictions laid out in Section 37, meaning other legal limits still apply to how and when this right can be exercised.