THE “RECOURSE” RESTRICTION IN THE MODERN ERA: EVALUATING THE RIGHT OF PRIVATE DEFENCE AGAINST UNLAWFUL ARRESTS AND SYSTEMIC FAILURES

AUTHOR – RAJNISH GUPTA* & DR. MUDRA SINGH **

* STUDENT AT AMITY LAW SCHOOL LUCKNOW, AMITY UNIVERSITY UTTAR PRADESH LUCKNOW CAMPUS

** ASSISTANT PROFESSOR OF LAW AT AMITY LAW SCHOOL LUCKNOW, AMITY UNIVERSITY UTTAR PRADESH LUCKNOW CAMPUS

BEST CITATION – RAJNISH GUPTA & DR. MUDRA SINGH, THE “RECOURSE” RESTRICTION IN THE MODERN ERA: EVALUATING THE RIGHT OF PRIVATE DEFENCE AGAINST UNLAWFUL ARRESTS AND SYSTEMIC FAILURES, INDIAN JOURNAL OF LEGAL REVIEW (IJLR), 6 (4) OF 2026, PG. 245-256, APIS – 3920 – 0001 & ISSN – 2583-2344. https://doi.org/10.65393/IJLRV6I428

ABSTRACT

This paper provides an exhaustive doctrinal and socio-legal analysis of the right of private defence in India, examining the transition of its foundational statutory framework from Section 99 of the Indian Penal Code, 1860 (IPC) to Section 37 of the Bharatiya Nyaya Sanhita, 2023 (BNS). It critically explores the tripartite statutory restrictions governing this right: the conditional immunity of public servants acting in good faith, the necessity of recourse to public authorities, and the doctrine of proportionality. Through an analysis of landmark judicial pronouncements spanning over a century and culminating in judgments from 2024 and 2025, the study highlights the judiciary’s evolution in rejecting a mathematical “golden scale” approach to proportionality, instead favoring a realistic assessment of the accused’s instinct for self-preservation during an imminent threat.

Furthermore, the paper investigates the essential preconditions that trigger the right namely, reasonable apprehension and imminence while emphasizing the strict jurisprudential boundary that separates lawful private defence from unlawful retaliation. Moving beyond the “black letter law,” the research presents a profound socio-legal critique, arguing that the supposedly neutral standard of “objective reasonableness” often fails marginalized communities. It reveals how systemic biases weaponize these statutory limitations against Dalits resisting caste atrocities and women suffering from Battered Woman Syndrome (BWS), while simultaneously highlighting the misuse of the defense in staged police encounters. Ultimately, the paper advocates for integrating the sociological realities of caste and gender into the judicial adjudication of self-defense to ensure the right protects the vulnerable without distinction.

Keywords: Right of Private Defence Bharatiya Nyaya Sanhita (BNS) Proportionality Reasonable Apprehension Socio-Legal Critique