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Section 37 BNS: Acts Against Which There Is No Right of Private Defence

Section 37 of the Bharatiya Nyaya Sanhita, 2023 places important limits on the right of private defence. It identifies situations in which that right is not available and makes clear that a person acting in private defence cannot inflict more harm than is necessary for protection.

Current legal position: The Bharatiya Nyaya Sanhita, 2023 is Act No. 45 of 2023 and came into force on 1 July 2024. Section 37 operates within the BNS provisions dealing with the right of private defence.
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Text of Section 37 of the Bharatiya Nyaya Sanhita, 2023

37. Acts against which there is no right of private defence.

(1) There is no right of private defence,-

(a) against an act which does not reasonably cause the apprehension of death or of grievous hurt, if done, or attempted to be done, by a public servant acting in good faith under colour of his office, though that act, may not be strictly justifiable by law;

(b) against an act which does not reasonably cause the apprehension of death or of grievous hurt, if done, or attempted to be done, by the direction of a public servant acting in good faith under colour of his office, though that direction may not be strictly justifiable by law;

(c) in cases in which there is time to have recourse to the protection of the public authorities.

(2) The right of private defence in no case extends to the inflicting of more harm than it is necessary to inflict for the purpose of defence.

Explanation 1.- A person is not deprived of the right of private defence against an act done, or attempted to be done, by a public servant, as such, unless he knows or has reason to believe, that the person doing the act is such public servant.

Explanation 2.- A person is not deprived of the right of private defence against an act done, or attempted to be done, by the direction of a public servant, unless he knows, or has reason to believe, that the person doing the act is acting by such direction, or unless such person states the authority under which he acts, or if he has authority in writing, unless he produces such authority, if demanded.

Meaning and Scope of Section 37 BNS

The right of private defence is recognised by Section 34 BNS and is further described in Section 35 BNS. Section 37 places restrictions on that right. It is therefore a limiting provision and must be read together with the surrounding BNS provisions on private defence.

In practical terms, Section 37 addresses three situations: certain acts of public servants, certain acts done under the direction of public servants, and situations where there is sufficient time to obtain protection from public authorities. It also imposes a general rule of proportionality by prohibiting unnecessary harm.

When Private Defence Is Restricted Against Acts of Public Servants

Under clauses (a) and (b) of Section 37(1), the right of private defence is restricted where an act is done by a public servant, or under a public servant's direction, in good faith under colour of office, provided the act does not reasonably cause an apprehension of death or grievous hurt.

The words "though that act, may not be strictly justifiable by law" and "though that direction may not be strictly justifiable by law" show that every technical or legal irregularity in official action does not automatically create a right to use private force against it. The statutory protection, however, is tied to the conditions expressly stated in Section 37.

Important: Explanation 1 and Explanation 2 protect a person who does not know, and has no reason to believe, that the actor is a public servant or is acting under a public servant's direction. Where written authority exists, Section 37 also addresses production of that authority when demanded.

When There Is Time to Seek Protection of Public Authorities

Section 37(1)(c) provides that there is no right of private defence in cases where there is time to have recourse to the protection of public authorities. The provision reflects the principle that private force is a protective remedy of necessity and is not intended to replace lawful public protection when that protection can reasonably be sought in time.

The Right Does Not Extend Beyond Necessary Harm

Section 37(2) states that the right of private defence never extends to inflicting more harm than is necessary for the purpose of defence. This is the central proportionality limitation in the provision. The amount of defensive harm must remain connected to the protective necessity faced by the person claiming the right.

The circumstances in which private defence of the body may extend to causing death are separately dealt with in Section 38 BNS. Situations where the right extends to harm other than death are addressed in Section 39 BNS.

Important Legal Expressions Used in Section 37

Good faith Section 2(11) BNS provides that nothing is said to be done or believed in "good faith" when it is done or believed without due care and attention.
Public servant "Public servant" is defined in Section 2(28) BNS. Section 37 applies the expression in the context of acts done, or directions given, under colour of public office.
Grievous hurt Section 116 BNS specifies the categories of hurt that are designated as "grievous". The expression is important because clauses (a) and (b) of Section 37 refer to reasonable apprehension of death or grievous hurt.
Reasonable apprehension Section 37 focuses on whether the act reasonably causes apprehension of death or grievous hurt. The inquiry is therefore connected to the circumstances and the danger reasonably perceived at the relevant time.
Legal information: This page reproduces and explains Section 37 for general legal information. Application of the right of private defence depends on the facts and circumstances of each case and the other applicable provisions of law.