The Bharatiya Nyaya Sanhita (BNS), 2023 marks a significant reform in India's criminal law framework by replacing the colonial-era Indian Penal Code (IPC) of 1860 . Among its pivotal provisions is Section 35 BNS which delineates the right of private defence concerning both body and property. This section empowers individuals to protect themselves and others from unlawful aggression, ensuring that citizens are not passive victims in the face of imminent threats. Explore other important Judiciary Notes.

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Section 35 BNS

Right of private defence of the body and of property

Every person has a right, subject to the restrictions contained in section 37, to defend— (a) his own body, and the body of any other person, against any offence affecting the human body; (b) the property, whether movable or immovable, of himself or of any other person, against any act which is an offence falling under the definition of theft, robbery, mischief or criminal trespass, or which is an attempt to commit theft, robbery, mischief or criminal trespass.

Note: "The information provided above has been sourced from the official website, i.e., Indian Code. While the content has been presented here for reference, no modifications have been made to the original laws and orders" 

Section 35 of the Bharatiya Nyaya Sanhita (BNS) Act legally empowers a person to act in self-defence when faced with an unlawful threat to life, body, or property—either their own or someone else's. This provision serves as a legal shield, allowing individuals to use reasonable force to stop or prevent crimes like theft, robbery, mischief, or criminal trespass.

However, the right provided under Section 35 BNS is not absolute. It must be exercised within the framework laid out by Section 37, which puts certain limitations on when and how this right can be invoked. For instance, this right is available only when:

• The threat is imminent and real, not imaginary or in the distant future.
• The response is proportionate to the danger faced.
• The force used is necessary and not excessive—you cannot retaliate after the danger has passed or go beyond what’s required to neutralize the threat.

Importantly, Section 35 BNS covers both bodily defence and property defence, which means a person can intervene if someone else’s life or belongings are at risk as well.

By incorporating such provisions the Section 35 BNS Act aims to balance personal liberty with public order ensuring that individuals are protected without turning vigilantism into a legal excuse.

Section 35 BNS : Essential Elements

To prove an offense under Section 35 BNS, three main elements must be satisfied :

• Right to Defend Body: Individuals can protect themselves and others from offences affecting the human body.
• Right to Defend Property: Protection extends to both movable and immovable property against specific offences or attempts thereof.
• Subject to Restrictions: The right is not absolute and must adhere to the limitations specified in Section 37 BNS.
• Immediate Threat : The defence must be in response to an immediate and unlawful threat .

Proportionality: The force used in defence must be proportionate to the threat faced.

The nature of Section 35 BNS is preventive, allowing individuals to act before harm occurs. Its scope covers:

• Personal Defence: Protecting oneself and others from physical harm.
• Property Defence: Safeguarding property from specific criminal acts.
• Third-Party Defence: Intervening to protect others or their property.

The provision ensures that individuals are not penalized for taking necessary actions to prevent harm, provided they act within the legal framework.

Comparison with IPC and BNSS

Before BNS, similar conduct was covered under Section 97 of Indian Penal Code (IPC). The transition to Section 35 BNS preserved the structure while fitting into the reformed legal framework under the Bharatiya Nyaya Sanhita.

The BNS modernizes the language and structure of the IPC, making it more accessible while retaining the core principles.

Section 35 BNS : Judicial Interpretation

Indian courts have upheld that the right of private defence under Section 35 BNS is vital but not unlimited. In the landmark case of James Martin v. State of Kerala, the Supreme Court stressed that while self-preservation is a natural instinct, the force used must be proportionate to the threat.

The court made it clear that this right is meant for protection—not for retaliation or aggression. If someone uses excessive force or acts after the danger has passed, they lose the protection offered under this section. Thus, courts interpret Section 35 BNS as a right to act only in genuine and immediate danger, with reasonable restraint.

Section 35 BNS : Landmark Cases

The Indian judiciary has clarified the application of laws similar to section 35 BNS through past rulings under IPC Section 97. The landmark Judgments relating to the section are as follows-

• James Martin v. State of Kerala: Emphasized proportionality in the use of force for self-defence.
• Darshan Singh v. State of Punjab: Clarified that the right of private defence is available even if the aggressor is not armed, provided there is a reasonable apprehension of danger.
• State of U.P. v. Ram Swarup: Reiterated that the right of private defence cannot be used as a pretext for vengeance.
• K.M. Nanavati v. State of Maharashtra: Discussed the limits of private defence in cases involving sudden provocation.
• R v. Rose: An English case often cited in Indian courts, highlighting the necessity of immediate threat for the right of private defence to be valid.

Section 35 BNS : Impact

The introduction of Section 35 BNS in the BNS Act 2023 marks a progressive step in strengthening the legal right to private defence. It affirms an individual’s right to safeguard life and property reflecting the realities of modern society where immediate protection may sometimes be necessary before law enforcement can intervene.

By updating the language and simplifying the structure the Section 35 BNS Act makes this important legal right easier to understand and apply, especially for common citizens without legal training. At the same time, the law ensures that this right is not turned into a tool for revenge or vigilante justice.

The emphasis on reasonable force and immediate danger helps maintain the rule of law promoting a fair balance between personal freedom and social responsibility. In essence, it empowers individuals while also putting safeguards to prevent abuse.

Conclusion

Section 35 of the Bharatiya Nyaya Sanhita, 2023, encapsulates the essence of the right of private defence, providing individuals with the legal backing to protect themselves and their property. While it empowers citizens, it also imposes necessary restrictions to prevent misuse. Understanding this provision is crucial for both legal practitioners and the general public, ensuring that the right is exercised responsibly and within the bounds of the law.